FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Wayne Credit,

Complainant

against Docket #FIC 1997-094

Water Pollution Control Authority,

Town of Ledyard,

Respondent December 10, 1997

The above-captioned matter was heard as a contested case on September 8, 1997, at which time the complainant and the respondent appeared, and presented testimony, exhibits and argument on the complaint. The Commission’s briefing schedule allowed the final brief to be filed on October 6, 1997.

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 March 4, 1997, the complainant requested that the respondent provide him with a copy of “the revised assessments for the Gales Ferry water project” with seven enumerated streets removed (the “requested record”).

3. By letter dated March 11, 1997, the respondent declined to provide the requested record, stating among other points, that the assessment list was a “draft/working document” which could not be finalized until project completion.

4. By letter dated March 27, 1997, and filed with the Commission on March 31, 1997, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to provide him with a copy of the requested record which was “in his computer”.

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

Any public agency which maintains public records in a

computer storage system shall provide, to any person making

a request pursuant to this chapter, a copy of any nonexempt

data contained in such records, properly identified, on paper,

disk, tape or any other electronic storage device or medium

requested by the person, if the agency can reasonably make

such copy or have such copy made. [emphasis added]

6. The respondent contends that the requested record is exempt from mandatory disclosure pursuant to §§1-19(b)(1) and (b)(7), G.S.

7. Section 1-19(b)(1), G.S., states that nothing in the FOI Act shall be construed to require disclosure of:

preliminary drafts and notes provided the public agency

has determined that the public interest in withholding such

documents clearly outweighs the public interest in disclosure….

8. Additionally, with reference to preliminary drafts and notes exempted from mandatory disclosure by §1-19(b)(1), G.S., §1-19(c), G.S., provides in relevant part:

Notwithstanding the provisions of subdivisions (1) and (16)

of subsection (b) of this section, disclosure shall be required

of (1) interagency or intra-agency memoranda or letters, advisory

opinions, recommendations or any report comprising part

of the process by which governmental decisions and policies

are formulated, except disclosure shall not be required of a

preliminary draft of a memorandum, prepared by a member

of the staff of a public agency, which is subject to revision

prior to submission to or discussion among the members of

such agency.…

9. Finally, §1- 19(b)(7), G.S., states that nothing in the FOI Act shall be construed to require disclosure 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]

10. It is found that the requested record is, in fact, a spreadsheet in the personal computer assigned for use to the town engineer.

11. It is found that the town engineer showed the requested record to the complainant on his computer screen, but that the requested record was never submitted to any other member of the agency for discussion.

12. It is found that the requested record was “a quick thumbnail sketch”, the computer equivalent of notes made on a notepad. It was prepared in just three hours, for the sole purpose of satisfying the professional curiosity of the town engineer who was acting entirely on his own initiative, subsequent to a discussion with the complainant at a public meeting. The town engineer was not asked or directed to generate the requested record by the respondent or any member or staff member thereof.

13. It is found that the requested record is based upon: a) preliminary estimates of cost data (produced with a manual estimating device, rather than data supplied by the consulting engineer of the project); and also b) preliminary estimates concerning which specific properties would be eliminated as a result of removing the seven enumerated streets. Therefore, it is found that the requested record was a memorandum that was “subject to revision” prior to submission to other members of the agency. Van Norstrand v. Freedom of Information Commission, 211 Conn. 339 (1989).

14. It is found that the requested record, as a list of projected assessments for individual taxpayers (based upon the removal of certain streets from a water project), is a different, more preliminary record than one showing the median change in assessments for all taxpayers that would be estimated to result. A list of projected assessments for individual taxpayers is similar to the “survey data” found to be exempt in Van Norstrand, op. cit.

15. It is found that the respondent has reasonably determined that, if the requested record were disclosed, it could be considered a final report approved by the respondent, and therefore, that the public interest in withholding the requested records clearly outweighs the public interest in its disclosure.

16. It is found that the respondent was at the time of the request set forth at paragraph 2, above, contemplating prospective public supply and construction contracts for water and that all the proceedings or transactions in connection with the prospective contracts had not been terminated or abandoned.

17. It is concluded that the requested record is a classic case of “a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency”, and therefore that the requested record is exempt from mandatory disclosure under §1-19(b)(1), G.S.

18. Notwithstanding the fact that the town engineer showed the requested record to the complainant on his computer screen, it is further concluded that the test set forth at §1-19(c), G.S., is whether a record “is subject to revision prior to submission to or discussion among the members of such agency” [emphasis added], and because the requested record was never submitted to members of the respondent agency, it is not subject to mandatory disclosure.

19. It is also concluded that the requested record is a feasibility estimate and evaluation made by an agency relative to “prospective public supply and construction contracts”, and therefore, that the requested record is also exempt from mandatory disclosure pursuant to §1-19(b)(7), G.S.

20. It is therefore concluded that the respondent did not violate §§1-19(a) and 1-15, G.S., by failing to make the requested records available.

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 December 10, 1997.

_________________________

Doris V. Luetjen

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:

Wayne Credit

1550 Route 12, Apt. 2

Gales Ferry, CT 06335

Water Pollution Control Authority, Town of Ledyard

c/o Joseph B. Mathieu

93 Oak Streeet

Hartford, CT 06106-1552

__________________________

Doris V. Luetjen

Acting Clerk of the Commission

FIC1997-094/FD/tcg/12101997