FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on December 5, 1996, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

Counsel for the respondent issued a subpoena to the Commission’s general counsel to appear at the hearing in this matter. The purpose of the subpoena was to have the general counsel render his opinion on issues of law. The undersigned hearing officer released the general counsel from the subpoena on the ground that the issuance of the subpoena was abusive. The general counsel’s office requires him to give his opinion to the commission on legal issues in contested cases as counsel, not as a witness. If the general counsel were required to testify merely because he was subpoenaed by counsel for a party to a contested case, he might be compelled ethically to recuse himself from performing his duties as general counsel to the commission, since an attorney ordinarily cannot be both a witness and counsel in the same case.

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 letters dated June 27 and June 28, 1996, the complainants requested that the respondent provide them with the following:

a) access to invoices, audits and/or financial reports submitted to the respondent on a grant by the respondent to the Ocean Quest project in New London; and

b) a copy of the subcontract between OceanQuest and New Wave Technologies, Inc.

3. It is found that by letter dated July 3, 1996, the respondent denied the complainants’ request claiming that the records maintained by it that are responsive to the complainant’s request are exempt from disclosure pursuant to § 32-11a(k), G.S.

4. By letter dated and filed with the Commission on July 3, 1996, the complainants appealed to the Commission alleging that the respondent violated the Freedom of Information ("FOI") Act by denying their request for access to inspect records and for a copy of the contract at issue.

5. It is found that the respondent did not maintain records responsive to the complainant’s request for audit reports described in paragraph 2a), above.

6. It is found that the requested records are public records within the meaning of § 1-18a(d) and 1-19(a), G.S.

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

"[e]xcept as otherwise provided by 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 … or to receive a copy of such records in accordance with the provisions of section 1-15."

8. Section 1-15(a), G.S., in turn provides: Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.

With respect to the requested records described in paragraphs 2a) and 2b), above, the respondent contends that the records at issue are exempt from disclosure pursuant to § 32-11a(k), G.S., which provides:

"All information contained in any application for financial assistance submitted to the authority or the department, and all information obtained by the authority or the department with respect to any person or project, including all financial, credit and proprietary information, shall be exempt from the provisions of subsection (a) of section 1-19."

10. It is found that § 32-11a(k), G.S., is a state statute that supercedes the disclosure provisions of the FOI Act, pursuant to § 1-19(a), G.S.

11. It is also found that the requested records were obtained by the respondent in connection with a project within the meaning of § 32-11a(k), G.S.

12. It is therefore concluded that the requested records described in paragraphs 2a) and 2b), above, are exempt from disclosure pursuant to § § 1-19(a) and 32-11a(k), G.S., under the facts of this case.

13. It is accordingly concluded that the respondent did not violate § § 1-19(a) or 1-15(a), G.S., under the facts of this case.

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

1. The complaint is hereby dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of March 12, 1997.

__________________________
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:

Judy Benson and The Day
47 Eugene O’Neill Drive
New London, CT 06320

State of Connecticut, Department of Economic and Community Development
c/o William J. Prensky, Esq.
Assistant Attorney General
110 Sherman Street
Hartford, CT 06105

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC1996-274/FD/EAL/03201997