FREEDOM OF INFORMATION
COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by Final Decision
David Collins and The Day
Publishing Co.,
Complainants
against Docket
#FIC 95-292
Casino Evaluation Committee,
State of Connecticut, Department of Special Revenue,
Respondent May 22, 1996
The above-captioned matter was heard as a contested
case on February 13, 1996, at which time the complainants 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
of complaint dated and filed with the Commission on September 15, 1995, the
complainants appealed to the Commission alleging that the respondent violated
the Freedom of Information ("FOI") Act, with respect to its review of
certain proposals received in response to a Request for Proposal (hereinafter
"RFP"), for the development and operation of a casino
gaming/entertainment complex in Bridgeport, by:
a. failing
to properly notice a meeting held on September 14, 1995;
b. improperly
convening in executive session on September 14, 1995 to meet with two
prospective developers and hear the developers' presentations; and
c. failing
to provide access to the proposals.
3. At the
hearing on this matter, the complainants withdrew that portion of their
complaint as described in paragraph 2a., above.
Docket #FIC 95-292 Page
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4. With
respect to the allegation, as described in paragraph 2b., above, it is found
that the respondent held a meeting on September 14, 1995 (hereinafter "the
September 14, 1995 meeting").
5. It is
found that immediately after convening the September 14, 1995 meeting, the
respondent went into executive session (hereinafter "the executive
session").
6. It is
found that during the executive session representatives of the Mashantucket
Pequots (hereinafter "Pequots") and Mirage Resorts (hereinafter
"Mirage"), who had submitted proposals in response to the RFP, made
oral presentations to and answered questions from the respondent and its
evaluation team concerning the proposals.
7. It is
found that no portion of the presentations and questioning, described in
paragraph 6, above, was conducted in an open session.
8. Section
1-21(a), G.S., provides in relevant part:
The meetings of all public agencies,
except executive sessions as defined in subsection (e) of section 1-18a, shall
be open to the public.
9. Section
1-18a(e), G.S., permits an executive session for:
(5)
discussion of any matter which would result in the disclosure of public
records or the information contained therein described in subsection (b) of
section 1-19.
10. The
respondent contends that to have had the presentations and questioning in
public would divulge information exempt from disclosure pursuant to
1-19(b)(5) and 1-19(b)(7), G.S., and further that the state of
Connecticut would benefit from keeping the process confidential.
11. It is
found that the proposals and accompanying records are public records within the
meaning of 1-18a(d) and 1-19(a), G.S.
12. Section
1-19(b)(5), G.S., permits the nondisclosure of commercial or financial
information given in confidence, not required by statute.
13. It is
found that portions of the Pequots' proposal and presentation contain
commercial or financial information given to the respondent in confidence,
within the meaning of 1-19(b)(5), G.S.
Docket #FIC 95-292 Page 3
14. It is
found that portions of the Mirage proposal and presentation contain commercial
or financial information.
15. It is
found that Mirage had inquired of the respondent if the information contained
in its proposal would be made public and the respondent informed them that it
would not be released until the conclusion of the process.
16. It is
found however, that the respondent failed to prove that the Mirage proposal was
in fact given to the respondent in confidence within the meaning of
1-19(b)(5), G.S.
17. It is
found that the Commission is unaware of any statute requiring the provision of
the commercial or financial information given in confidence, as described in
paragraph 13, above.
18. It is
found that portions of the Pequots' proposal and presentation and the
respondent's questioning contain commercial or financial information given in
confidence, not required by statute.
19. It is
found however, that substantial portions of the Pequots' proposal and
presentation and the respondent's questioning do not contain commercial or
financial information given in confidence, not required by statute within the
meaning of 1-19(b)(5), G.S.
20. Further,
it is found that in light of finding 16, above, the respondent failed to prove
that having the Mirage presentation in an open session would have disclosed
commercial or financial information given to the respondent in confidence, not
required by statute within the meaning of 1-19(b)(5), G.S.
21. It is
concluded that those portions of the Pequots' proposal and presentation and the
respondent's questioning, as described in paragraph 19, above, and the Mirage
proposal and presentation, could have and should have been conducted in an open
session as they would not have disclosed information exempt pursuant to
1-19(b)(5), G.S.
22. It is
therefore concluded that the respondent violated 1-18a(e) and 1-21,
G.S., when it conducted those portions of the presentation and questioning, as
described in paragraphs 19 and 21, above, that would not have divulged
information exempt pursuant to 1-19(b)(5), G.S., in executive session.
23. Section
1-19(b)(7), G.S., permits the nondisclosure of:
the contents of real estate appraisals,
engineering or feasibility estimates and evaluations made for or by an agency
Docket #FIC 95-292 Page
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relative to the acquisition of
property or to prospective public supply and construction contracts, until such
time as all of the property has been acquired or all proceedings or
transactions have been terminated or abandoned, provided the law of eminent
domain shall not be affected by this provision.
24. It is
found that the information contained in the proposals and presentations do not
constitute real estate appraisals, engineering or feasibility estimates and
evaluations within the meaning of 1-19(b)(7), G.S.
25. It is
therefore concluded that having the presentations in an open session would not
have divulged records exempt pursuant to 1-19(b)(7), G.S.
26. With
respect to the allegation, as described in paragraph 2c., above, it is found
that by letter dated September 12, 1995, and sent via facsimili, the
complainants requested that the respondent provide them with access to a copy
of the following records:
i. Mirage's
proposal submitted to the respondent on September 5, 1995;
ii. letter
of credit, cover letter and any other documents Mirage submitted with its
proposal;
iii. the
Pequots' proposal submitted to the respondent on September 5, 1995;
iv. letter
of credit and/or alternative financial guarantee, cover letter and any other
documents submitted with the Pequots' proposal;
v. letters
submitted to the respondent by other interested developers, including list of
questions asked regarding the development and proposal guidelines; and
vi. letters
received by the respondent on September 5, 1995 or during the previous week
from other developers explaining why they did not bid.
27. It is
found that by letter dated September 18, 1995, the respondent provided the
complainants with a copy of the
Docket #FIC 95-292 Page
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requested records, as
described in paragraph 26 v) and 26 vi), above, however, it informed the
complainants that it was reviewing the availability of the other records
requested.
28. It is
found that the respondent provided the complainants with access to a copy of
records responsive to their request, as described in paragraph 26 i) though 26
iv), inclusive, above, (hereinafter "records at issue"), on October
2, 1995.
29.
Consequently, the only issue before the Commission is whether the
respondent's provision of access on October 2, 1995 comports with the
requirements of 1-19(a), G.S.
30. Section
1-19(a), G.S., provides in relevant part:
Except as otherwise provided by any
federal law or state statute, all records maintained or kept on file by any
public agency, whether or not such records are required by any law or by any
rule or regulation, shall be public records and every person shall have the
right to inspect such records promptly during regular office or business hours
or to receive a copy of such records in accordance with the provisions of
section 1-15. Any agency rule or
regulation, or part thereof, that conflicts with the provisions of this
subsection or diminishes or curtails in any way the rights granted by this
subsection shall be void. [Emphasis
added.]
31. The
respondent contends that disclosure of the records at issue would divulge
information exempt pursuant to 1-19(b)(5) and 1-19(b)(7), G.S.
32. It is
found that findings 11 through 21, inclusive, and 23 through 24, inclusive,
above, are applicable to the respondent's claims of exemption with respect to
the records at issue. Accordingly,
findings 11 through 21, inclusive, and 23 through 24, inclusive, above, are
adopted.
33. It is
therefore concluded that the respondent violated 1-15 and 1-19(a),
G.S., when it failed to provide the complainants with access to a copy of those
portions of the Pequots' proposal not exempt from disclosure pursuant to
1-19(b)(5), G.S., and to the Mirage proposal, promptly.
The following order by the Commission is hereby
recommended
Docket #FIC 95-292 Page
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on the basis of the record
concerning the above-captioned complaint:
1.
Henceforth, the respondent shall strictly comply with the requirements
of 1-18a(e), 1-19(a) and 1-21(a), G.S.
Approved by Order of the
Freedom of Information Commission at its regular meeting of May 22, 1996.
Elizabeth
A. Leifert
Acting
Clerk of the Commission
Docket #FIC 95-292 Page
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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:
David Collins and The Day
Publishing Company
c/o David Collins
The Day
P.O. Box 1231
New London, CT 06320-1231
Casino Evaluation Committee,
State of Connecticut, Department of Special Revenue
c/o Richard M. Sheridan, Esq.
MacKenzie Hall
110 Sherman Street
Hartford, CT 06105
Elizabeth
A. Leifert
Acting Clerk of the Commission