Freedom of Information Commission

of the State of Connecticut

 

 

In the Matter of a Complaint by                                    Final Decision

 

Jon Lender and The Hartford Courant,

 

                        Complainants

 

            against                                                              Docket #FIC 1995-348

 

Commissioner, State of Connecticut,

Department of Public Works, and Public

Affairs Officer, State of Connecticut,

Department of Public Works,

 

                        Respondents                                         September 11, 1996

 

 

            The above-captioned matter was heard as a contested case on February 28, 1996, at which time the complainants and the respondents 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 respondents are public agencies within the meaning of §1-18a(a), G.S.

 

                2.  By letter dated November 17, 1995, the complainants requested that the respondents provide them with access to all files concerning the proposed Waterbury courthouse project then under consideration by the state Department of Public Works (hereinafter “DPW”) as well as files relating to an abandoned prior selection process for the same project, including, but not limited to: letters of inquiry; requests for proposals; responses to requests for proposals; any internal memoranda, correspondence or reports by any state agency, company or other individual concerning the project; evaluation reports, lists of questions about the project; and any communications with proponents, architects, engineers and any other parties concerning the project.

 

            3.  By facsimile transmittal cover sheet and attachments dated November 27, 1995, the respondents denied the complainants’ request, claiming that “negotiations are exempt from the Freedom of Information (“FOI”) Act”, and that §4b-23, G.S., exempts the requested records from disclosure.

 

            4.  By letter dated November 27 and filed November 28, 1995, the complainants appealed to the Commission alleging that the respondents violated the FOI Act by failing to provide them with access to the requested records.

 

            5.  It is found that on June 24, 1993, DPW issued a request for proposals (hereinafter “1993 RFP”) for a project to design and build a new criminal courthouse in Waterbury.

 

            6.  It is found that three developers submitted proposals in response to the 1993 RFP, and that a DPW proposal review team evaluated the proposals and made a recommendation to then DPW Commissioner Morris on which proposal to select.

 

            7.  It is found that Commissioner Morris selected a developer to commence negotiations with in August 1994; but in February 1995, before a contract was signed with the selected developer, his successor, Commissioner Anson, decided to abandon the 1993 RFP, issue a new RFP and begin the selection process again.

 

            8.  It is found that the second RFP was issued on March 23, 1995 (hereinafter “1995 RFP”), and that three developers submitted proposals, two of which had submitted proposals in response to the 1993 RFP.

 

9.  It is further found that in March 1995, the respondents returned the bulk of the 1993 RFP records to the developers who had submitted them and that the respondents did not retain copies of such records.

 

10.  The respondents submitted copies of the requested records which it currently maintains relating to both the 1993 and 1995 RFPs for an in camera inspection.

 

11.  It is found that the records responsive to the complainant’s request consist of two boxes of records, including, but not limited to:  DPW’s 1993 and 1995 RFPs; portions of the 1993 RFP responses and most of the 1995 RFP responses, including descriptions of the development companies and their company histories, specific design plans and cost projections; the proposal review team’s evaluations of the proposals submitted in response to both RFPs; correspondence; lists of questions to DPW from proposers and DPW’s responses; draft agreements and other related records.  The bulk of the submitted records have been identified by the respondent as in camera documents #1995-348:1-15, each with multiple sub-parts; however, some of the records which are not claimed to be exempt from disclosure are neither indexed nor identified by the respondents.

 

            12.  Section 1-18a(d), G.S., provides that:

 

“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, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.  [Emphasis added.]

 

            13.  Section 1-19(a), G.S., provides, in pertinent part:

 

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency … 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.

 

14.  It is found that the records maintained by the respondents concerning the subject 1993 and 1995 RFPs are public records within the meaning of §§1-18a(d) and 1-19(a), G.S.

 

15.  The respondents do not claim any exemption to disclosure for in camera documents #1995-348: 1, 2, 3 and 8, and for certain other unindexed records that are scattered throughout the in camera records.

 

16.  It is found that the respondents failed to provide the complainants with any of the requested records identified in paragraph 15, above, and consequently violated §1-19(a), G.S., in this respect without reasonable grounds.

 

17.  The respondents maintain that all indexed records contained in in camera documents #1995-348:4-7 and 9-15 are exempt from disclosure until a contract is executed with the selected developer pursuant to §§1-19(b)(5) and (7), G.S.

 

18.  In camera documents #1995-348:4-7 and 9-15, are identified on the in camera index by the respondents as follows:

 

(4)  documents related to evaluation of the proposals received in response to

       the 1993 RFP, with 68 sub-parts;

(5)  documents related to the selection of a proposal (1993 RFP) by the

      Commissioner at DPW, with 16 sub-parts;

(6)  documents related to negotiations with Atlas/Waterbury on 1993 RFP

       between September 20, 1994 and February 1995, with 45 sub-parts;

(7)  documents related to the decision to re-advertise for proposals, with 6

       sub-parts;

(9)  documents related to events between the issuance of the 1995 RFP and

       the receipt of proposals;

(10) proposals received in response to the 1995 RFP, with 9 sub-parts;

 

(11)  documents related to the evaluation of proposals received in response

         to the 1995 RFP, with 14 sub-parts;

(12)  documents related to the selection of a developer by the Commissioner

         of DPW (1995 RFP);

(13)  documents related to negotiations with Northland, with 35 sub-parts;

(14)  appraisals on Northland properties, with 2 sub-parts; and

(15)  documents relating to the Bond Commission request, with 2 sub-parts.

 

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

 

trade secrets, which for purposes of [the FOI Act] 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 recognized by law as confidential, and commercial or financial information given in confidence, not required by statute.  [Emphasis added.]

 

            20.  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 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.  [Emphasis added.]

 

21.  It is found that §1-19(b)(5), G.S., is not a temporal exemption, therefore whether a contract has been executed is not relevant to the consideration of the application of that provision.

 

22.  It is further found that the respondents failed to prove that the requested records, or any portions of them, contain trade secrets as defined in §1-19(b)(5), G.S., or that they contain information recognized by law as confidential.

 

23.  It is further found that only the proposals submitted by Northland Development Corporation (hereinafter “Northland”), which responded to both RFPs and was ultimately selected by DPW to pursue negotiations with, contain statements that the proposals were submitted in confidence.  Consequently, the records submitted in response to the RFP by the other companies do not fall within the §1-19(b)(5), G.S. exemption.

 

24.  It is further found that, without more, the statements of confidentiality contained in Northland’s proposals do not provide an exemption to the disclosure of public records.

 

25.  It is further found that although Northland’s annual report is referred to as attached to its proposal, which conceivably could contain financial information pertaining to Northland, it is not among the in camera documents submitted to the Commission, and therefore the Commission infers that it does not meet the claim of exemption.

 

26.  It is found that the respondents failed to prove that the information contained in the in camera records pertaining to Northland constitutes commercial or financial information within the meaning of §1-19(b)(5), G.S.

 

27.  It is therefore concluded that the respondents failed to prove that any of the requested records were exempt from disclosure under §1-19(b)(5), G.S.

 

            28.  It is found that the respondents failed to prove that any of the records submitted for in camera inspection are engineering or feasibility estimates or evaluations made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts within the meaning of §1-19(b)(7), G.S.

 

29.  Further, even if records of the 1993 RFP process constitute engineering or feasibility estimates or evaluations, it is concluded that §1-19(b)(7), G.S., would not apply to such records because the 1993 RFP process has been abandoned.

 

            30.  It is found that in camera documents #1995-348-13(15), 14(1) and 14(2), pertaining to the 1995 RFP, are real estate appraisals prepared for DPW relative to the acquisition of property and a prospective public construction contract.  Consequently, it is concluded that such records are exempt from disclosure pursuant to §1-19(b)(7), G.S., at this time.

 

31.  At the hearing on this matter, the respondents made no claim of exemption based upon §4b-23, G.S.; however, the respondents claimed that, as a matter of public policy, the requested records should not be disclosed prior to the execution of a contract, because it would nullify DPW’s ability to comply with §4b-24(4), G.S., which authorizes the commissioner of DPW to enter into a contract based upon competitive proposals.

 

32.  It is concluded that the respondents’ policy argument described in paragraph 31, above, neither states an exemption to the disclosure requirements of the FOI Act, nor would it make proposals submitted in response to an RFP less competitive.

 

33.  It is concluded that by failing to provide the complainants with prompt access to inspect or copy all of the requested records, with the exception of the exempt records identified in paragraph 30, above, the respondents violated §1-19(a), G.S.

 

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

 

            1.  The respondents shall forthwith provide the complainants with access to inspect or copy all of the requested records, with the exception of the records identified in paragraph 30 of the findings, above, free of charge.

 

            2.  Henceforth, the respondents shall strictly comply with the requirements of §1-19(a), G.S.

 

            3.  With respect to the records identified in paragraph 9 of the findings, above, the Commission advises the respondents to consult the state Public Records Administrator to ensure their compliance with state statutes and schedules pertaining to the retention and destruction of public records.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 11, 1996.

 

 

 

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission


 

 

 

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:

 

Jon Lender and The Hartford Courant

285 Broad Street

Hartford, CT 06115

 

 

Commissioner, State of Connecticut, Department of Public Works, and Public Affairs Officer, State of Connecticut, Department of Public Works,

c/o       Jose O. Salinas, Esq.

            Assistant Attorney General

P.O. Box 120

Hartford, CT 06141-0120

 

 

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission