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.

 

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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

 

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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 5

 

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

 

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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

 

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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