FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        Final Decision

 

Ace Ambulance Service, Inc.

 

                                Complainant

 

                against                   Docket #FIC 95-159

 

Mayor of Stamford,

 

                                Respondent                          February 14, 1996

 

                The above-captioned matter was heard as a contested case on November 9, 1995 and November 22, 1995, at which times the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

 

                After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

                1.  The respondent is a public agency within the meaning of 1-18a(a), G.S.

 

                2.  By letter dated April 21, 1995, the complainant, by and through its attorney, Jeffrey J. Mirman, requested of the respondent a copy of a business proposal which was submitted to him by Mr. Rick Miller of Stamford Emergency Medical Services, Inc. (hereinafter "SEMS")

 

                3.  Having failed to receive the requested record, the complainant, by letter dated May 11, 1995 and filed on May 12, 1995, appealed to the Commission alleging that the respondent violated the Freedom of Information ("FOI") Act by denying it a copy of the requested record.

 

                4.  The respondent claims that SEMS is not a public agency or the functional equivalent of a public agency under the FOI Act and that the subject record is not a public record within the meaning of 1-18a(d), G.S.

 

                5.  The respondent also contends that the subject record is not a public record because he did not treat it as a public record and because he no longer has possession of the proposal, having returned it to his executive aide for retention in her personal files.

 

Docket #FIC 95-159                                             Page 2

 

                6.  It is found that whether or not SEMS is a public agency for purposes of the FOI Act is not at issue in this matter.  Therefore, the Commission need not consider the respondent's arguments with respect thereto.

 

                7.  Section 1-18a(d), G.S. provides, in relevant part:

 

                                (d)  "Public records or files" means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency...."  [Emphasis added.]

 

                8.  It is found that the subject record is a business proposal by SEMS, proposing a for-profit subsidiary that would provide non-emergency transport services for Stamford residents.

 

                9.  It is also found that the subject record was received by the respondent from the respondent's executive aide, who serves as the respondent's nominee on SEMS' board of directors.

 

                10.  It is further found that the subject record was provided to the respondent at the request of SEMS for the express purpose of obtaining the respondent's support for the proposal in his capacity as a public agency.

 

                11.  It is further found that the respondent did in fact write a letter in his capacity as the chief elected official of the City of Stamford to SEMS' president in support of the proposal.

 

                12.  It is therefore found that the subject record is a public record within the meaning of 1-18a(d), G.S.

 

                13.  The respondent has submitted the subject record for an in camera inspection by the Commission.  Therefore, his contention that he does not have the subject record is no longer accurate.

 

                14.  The respondent claims that the portion of the subject record that does not constitute the application to the Connecticut Department of Health and Addiction Services, Office of Emergency Medical Services, is exempt from disclosure by virtue of both 1-19(b)(1), G.S., because it is a preliminary draft, and 1-19(b)(5), G.S., because it contains trade secrets and confidential financial information.

 

                15.  It is concluded that by failing to provide the complainant with the application portion of the subject record, the respondent violated the provisions of 1-15(a) and 1-19(a), G.S.

 

Docket #FIC 95-159                                             Page 3

 

                16.  Section 1-19(b)(1), G.S., permits the nondisclosure of:

 

                                "preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure."

 

                17.  Section 1-19(b)(5), G.S., permits the nondisclosure of:

 

                                "trade secrets, which . . . are defined as unpatented, secret, commercially valuable plans, appliances, formulas, or processes, which are used for the making, preparing, compounding, treating or processing of articles or materials which are trade commodities obtained from a person and which are recognized by law as confidential, and commercial or financial information given in confidence, not required by statute."  [Emphasis added.]

 

                18.  It is found that the subject record is not a preliminary draft of the respondent; rather it is a company's business proposal that was submitted to the respondent, in his capacity as a public agency, to solicit his support for the proposal.

 

                19.  Consequently, it is concluded that 1-19(b)(1), G.S.,  is inapplicable to the subject record.

 

                20.  It is found that the subject record does not contain any trade secrets, as defined in 1-19(b)(5), G.S.

 

                21.  It is further found, based upon the uncontroverted evidence, that the subject record was not given to the respondent in confidence.

 

                22.  Consequently, it is concluded that 1-19(b)(5), G.S.,  is inapplicable to the subject record under the facts of this case.

 

                23.  It is therefore found that the non-application portion of the subject record is also not exempt from disclosure under either 1-19(b)(1) or 1-19(b)(5).

 

                24.  Consequently, it is concluded that the respondent violated the provisions of 1-15(a) and 1-19(a), G.S., by failing to provide the complainant with a copy of the requested record, in its entirety.

 

                The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

Docket #FIC 95-159                                             Page 4

 

                1.  The respondent shall forthwith provide the complainant with a copy of the subject record, as described in paragraph 7 of the findings, above, in its entirety.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 14, 1996.

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission

 

Docket #FIC 95-159                                             Page 5

 

PURSUANT TO SECTION 4-180(c), G.S. THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

Ace Ambulance Service, Inc.

c/o  Jeffrey J. Mirman, Esq.

Levy & Droney, P.C.

P.O. Box 887

Farmington, CT 06034-0887

 

Mayor of Stamford

c/o  Barry Boodman, Esq.

888 Washington Bvld.

P.O. Box 10152

Stamford, CT 06904-2152

 

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission