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FREEDOM OF INFORMATION
COMMISSION |
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In
the Matter of a Complaint by |
FINAL
DECISION |
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Joseph
J. Cassidy, |
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Complainants |
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against |
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Docket
#FIC 1998-293 |
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Department
of Public Utilities, City
of Norwich, and City of Norwich, |
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Respondents |
September
22, 1999 |
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The above-captioned matter was heard
as a contested case on November 20 and December 18, 1998, and June 17, 18 and
26, 1999, at which times the complainant and the respondent department
appeared, stipulated to certain facts and presented testimony, exhibits and
argument on the complaint. Contested
case docket #FIC 1998-294, Robert J. Bourne v. Department of Public
Utilities, City of Norwich, and City of Norwich, was consolidated with the
above-captioned matter for purpose of hearing.
The records at issue were reviewed in camera.
After consideration of the entire
record, the following facts are found and conclusions of law are reached:
1.
The respondent department is a public agency within the meaning of §1-200(1), G.S., (formerly §1-18a(1), G.S.).
2. It is
found that by letter dated May 19, 1998, the complainant requested that the
respondent department provide him with access to inspect any and all records
pertaining to the following:
a. non-residential natural gas customers of the respondent
department, including transportation and gas service agreements, proposals and
customer lists;
b. price and pricing of natural gas;
c. natural gas usage;
d. transmission and distribution of natural gas to the respondent
department’s customers;
e. budgets, including those that relate to the
respondent department’s budget and to specific projects;
f. financing, including documents relating to any bond or other debt
offerings;
g. planning reports, materials, correspondence and documents;
h. gas supply, including documents relating to transactions
involving the gas pipeline companies;
i. construction of facilities, responses to requests for proposals,
offers, bids and similar documents; and
j. documents relating to the Mashantucket Pequot Tribe, the
Mashantucket Pequot Tribal Council and the Mashantucket Pequot Tribe,
Department of Utilities and/or any of the members of those organizations.
(hereinafter “requested
records”).
3. It is found
that by letter dated May 26, 1998, the respondent department requested that the
complainant clarify the scope of his request.
4. It is found that on June 22, 1998 the complainant and the
respondent discussed the request, agreed that the complainant would be
permitted to inspect certain records, and that the respondent department would
send the complainant a letter describing the records which would not be made
available.
5. It is found that by letter dated July 10, 1998, the respondent
department provided the complainant with a description of categories of records
which would not be made available, and on July 27, 1998 informed the
complainant that certain records would be made available for his inspection.
6. Following further discussion between the complainant and the
respondent department on September 16, 1998, they agreed that the complainant
would be permitted to inspect some of the respondent department’s records on
September 23, 1998.
7. It is found that on September 23, 1998 the complainant inspected
the records made available to him by the respondent department. Upon inspection, the complainant concluded
that many of the records he requested, and believed would have been made
available by the respondent department on September 23, 1998, were not provided.
8. The complainant then by letter dated and filed with the
Commission on September 30, 1998, appealed to the Commission alleging that the
respondent department violated the Freedom of Information Act by denying him
access to the requested records.
9.
The respondent department contends that the complainant’s appeal was not
timely filed in that the respondent department’s July 10, 1998 letter,
described in paragraph 5, above, was a “denial” of the complainant’s records
request.
10. Section
1-206(b)(1), G. S., (formerly §1-21i(b)(1), G.S.) provides
in relevant part:
Any person denied the right to inspect or copy
records under section 1-210 … may appeal therefrom to the Freedom of
Information Commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within
thirty days after such denial….
11. It is
found that between late May, 1998 and September 16, 1998, the complainant and
the respondent department engaged in a series of discussions about the
complainant’s records request, ultimately culminating in the complainant and
the respondent department agreeing on September 16, 1998 that the complainant
would be permitted to inspect the respondent department’s records on September
23, 1998.
12. It is
concluded that the July 10, 1998 letter was not a denial of the complainant’s
request within the meaning of §1-206(b)(1), G. S.,
(formerly §1-21i(b)(1), G.S.), and
further, that for purposes of this appeal, the complainant was denied access to
the requested records on September 23, 1998.
13. It is
therefore, concluded that the complainant’s appeal, filed on September 30,
1998, was filed within the appropriate thirty-day period.
14.
The Commission takes administrative notice of the final decision in
contested case docket # FIC 1996-578, Joseph J. Cassidy v. Department of
Public Utilities, City of Norwich.
15. Section
1-200(5), G.S., (formerly §1-18a(5), G.S.) defines
“public records or files” to mean:
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.
16. Section
1-210(a), G.S., (formerly §1-19(a), G.S.) further
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
1-212.
17. It is
found that the respondent department maintains eight boxes of records
responsive to the complainant’s request and such records are public records
within the meaning of §§1-200(5), G.S., (formerly §1-18a(5), G.S.) and
1-210(a), G.S., (formerly §1-19(a), G.S.).
18. The
respondent department contends that the eight boxes of records are exempt from
disclosure pursuant to Public Act 98-212, now §7-232a, G.S., and §§1-210(b)(5), 1-210(b)(10)
and 16-262c(e), G.S.
19. In light of the significant quantity of
records contained in the eight boxes, at the June 17, 1999 hearing in this
matter the complainant and the respondent department stipulated to the
following:
WHEREAS, the respondent has
compiled eight boxes of documents that contain responsive documents that the
respondent claims are exempt;
WHEREAS, the complainants
and the respondent desire to avoid the time and expense of testimony and in
camera inspection of all of the documents claimed to be exempt.
NOW, THEREFORE, the
complainants and the respondent agree and stipulate as follows:
1. the respondent has selected documents that it believes to be
reasonably representative of the documents claimed to be exempt and the
exemptions that are claimed to be in issue in this case.
2. The representative documents will be presented for in camera
review to the Commission.
3. In the event it is finally determined, after the exhaustion of
all appeals, that some or all of the representative documents are exempt, then
all similar documents maintained by the respondent will be deemed exempt and
not produced by the respondent.
4. In the event it is finally determined, after the exhaustion of
all appeals, that some or all of the representative documents are not exempt,
then all similar documents maintained by the respondent will be deemed not
exempt and will be produced by the respondent.
5. In the event the complainants and the respondent disagree whether
a particular document is similar to a representative document for purposes of
determining whether the document is similar or not pursuant to paragraphs 3 or
4, then this issue will be determined by a neutral third party from Mediation
Consultants, LLC or JAMS/Endispute (or similar organization should these groups
no longer exist). Neither the
complainants nor the respondent shall have the right to appeal or otherwise
challenge any determination by the neutral third party in this regard, which
determination shall be final for all purposes.
20. In keeping with the stipulation described in
paragraph 19 above, the respondent department submitted 84 records to the Commission
in camera, which records have been marked as follows for
identification purpose: IC#1 through IC#47, IC#49 through IC#73, IC#76 and
IC#78 through IC#88. All of the in
camera records were reviewed.
21. With respect to the respondent department’s first
claim of exemption, it contends that all of the in camera records
are exempt pursuant to §7-232a, G.S.
22. Section 7-232a, G.S., provides:
A municipal utility
established under chapter 101 of the general statutes, or a municipal electric
or gas utility owned, leased, maintained, operated, managed or controlled by
any unit of local government under the general statutes or a special act, may
withhold from public disclosure under the Freedom of Information Act, as
defined in section 1-18a [now §1-200] of the general
statutes, as amended by section 1 of public act 97-47, any commercially
valuable, confidential or proprietary information.
23. Section
7-232a, G.S., became effective on October 1, 1998. The complainant’s request for the subject records was made on May
19, 1998 and this appeal was filed on September 30, 1998. The respondent department failed to
establish that §7-232a, G.S., has any
retroactive effect, and consequently, it is concluded that the legislature
intended §7-232a, G.S., to become
effective on October 1, 1998.
24. It is
therefore, concluded that §7-232a, G.S., is not
applicable to the records at issue in this appeal.
25. With respect to the respondent department’s
second claim of exemption, it contends that all of the in camera
records are exempt from disclosure pursuant to §1-210(b)(5), G.S., (formerly §1-19(b)(5), G.S.), which in
relevant part, permits the nondisclosure of:
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trade secrets . . .
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 trade
commodities obtained from a person and which are recognized by law as
confidential, and commercial or financial information given in confidence,
not required by statute . . . . |
26. It is
found that the records at issue are not “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 trade commodities obtained from a person and which are recognized by
law as confidential”, within the meaning of §1-210(b)(5), G.S., (formerly
§1-19(b)(5), G.S.).
27. It is
further found however, that the in camera records constitute
“commercial or financial information” “not required by statute” within the
meaning of §1-210(b)(5), G.S., (formerly
§1-19(b)(5), G.S.).
28. However,
it is also found that the respondent department failed to prove that any of the
records described in paragraph 27 above, with the exception of IC#18 and IC#42,
were “given in confidence” within the meaning of §1-210(b)(5), G.S., (formerly §1-19(b)(5), G.S.).
29. It is
therefore, concluded that the in camera records, with the exception
of IC#18 and IC#42, are not exempt from disclosure pursuant to of §1-210(b)(5), G.S., (formerly
§1-19(b)(5), G.S.).
30. It is
further concluded that IC#18 and IC#42 are exempt from disclosure pursuant to §1-210(b)(5), G.S., (formerly
§1-19(b)(5), G.S.), as they
are “commercial or financial information given in confidence, not required by
statute”.
31. With
respect to the respondent department’s third claim of exemption, the respondent
department claims that IC#9, IC#37, IC#42, IC#82 and IC# 85 are exempt from
disclosure pursuant to §1-210(b)(10), G.S.,
(formerly §1-19(b)(10), G.S.), which
permits the nondisclosure of: “[c]ommunications privileged by the
attorney-client relationship.”
32. The
exemption for attorney-client privileged communications contained in §1-210(b)(10), G.S.,
(formerly §1-19(b)(10), G.S.) is limited to the following circumstances in
accordance with established Connecticut law:
Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection may be waived.
Lafaive
v. DiLoreto,
2 Conn. App. 58, 65 cert. denied, 194 Conn. 801 (1984).
33. The
attorney-client privilege protects communications between client and attorney,
when made in confidence for the purpose of seeking or giving legal advice. Ullmann v. State, 230 Conn. 698, 711
(1994). It is strictly construed
because it "tends to prevent a full disclosure of the truth…." Id. at 710. The privilege is waived when statements of the communication are
made to third parties Id. at
711; see LaFaive v. DiLorento, supra.
34. It is
found that IC#9, IC#37, IC#42, IC#82 and IC#85 are communications between
attorney, in the capacity of legal adviser and client, which communications
contain client confidences, and pertain to legal advice sought by the client
and provided in confidence.
35.
Consequently, it is concluded that IC#9, IC#37, IC#42, IC#82 and IC#85
are privileged communications within the meaning of §1-210(b)(10), G.S.,
(formerly §1-19(b)(10), G.S.), and are
therefore, exempt from disclosure.
36. With
respect to the respondent department’s fourth claim of exemption pursuant to §16-262c(e), G.S., the
respondent department contends that the following records are exempt from
disclosure: IC#1 through IC#7, IC#10, IC#11, IC#14, IC#17, IC#21 through IC#25,
IC#28, IC#29, IC#31, IC#32, IC#36, IC#38, IC#40, IC#43, IC#45 through IC#47,
IC#49 through IC#51, IC#54 through IC#72, IC#79, IC#81and IC#83 through IC#89.
37. Section
16-262c(e), G.S. provides:
No provision of the Freedom of Information Act, as
defined in section 1-200, shall be construed to require or permit a municipal
utility furnishing electric, gas or water service, a municipality furnishing
water or sewer service, a district established by special act or pursuant to
chapter 105 and furnishing water or sewer service or a regional authority established
by special act to furnish water or sewer service to disclose records under the
Freedom of Information Act, as defined in section 1-200, which identify or
could lead to identification of the utility usage or billing information of
individual customers, to the extent such disclosure would constitute an
invasion of privacy.
38. It is
found that the respondent department is a municipal utility furnishing
electric, gas or water service, within the meaning of §16-262c(e), G.S.
39. It is
also found that the following in camera records identify or could
lead to identification of the utility usage or billing information of
individual customers within the meaning of §16-262c(e), G.S.: IC#s 1; 3; 4; 5; 10; 14; 21 (page 5); 22
(pages 2 through 5, 7, 8, 9, 12 through 17); 23 (pages 4 through 12); 24 (pages
2 through 10); 25; 29; 31; 32; 40; 43; 45; 46 (pages 4, 5, 6, 15 and 16); 49;
50; 54; 56 (pages 9, 10, 11, 13, 25, 26, 27 and 28); 57; 59 (pages 6 through
9); 60 (pages 4, 5, 9 and 22); 61; 63; 64; 65; 66 (pages 7 through 13); 67; 68
(pages 4, 5, 11 and 12); 69; 70 (pages 16 and 17); 71 (pages 3 through 7); 72;
79 (pages 4 and 5); 81; 83; 84; 86, 87 and 89 (pages 3 through 5, 11 and 12).
40. It is
also found that the remaining in camera records do not identify
nor could they lead to identification of utility usage or billing information
within the meaning of §16-262c(e), G.S.
41. The
Court in Perkins v. Freedom of Information Commission, 228 Conn. 158
(1993), articulated the two criteria that must be met when establishing a claim
of invasion of privacy. First, public
disclosure must be highly offensive to a reasonable person and second, the
information sought must not pertain to legitimate matters of public concern.
42. It is
found that disclosure of the information sought and described in paragraph 39
above, would be highly offensive to a reasonable person. It is also found that disclosure of the
information does not pertain to legitimate matters of public concern.
43. It is
therefore, concluded that disclosure of the records described in paragraph 39
above, would constitute an invasion of privacy, and consequently, such
information is exempt from disclosure pursuant to §16-262c(e), G.S.
44.
It is further concluded that the respondent department did not violate §1-210(a), G.S., (formerly §1-19(a), G.S.) when it
failed to provide the complainant with access to IC#9, IC#18, IC#37, IC#42,
IC#82, IC#85, and the in camera records described in paragraph
39, above. However, the respondent
department violated §1-210(a), G.S., (formerly §1-19(a), G.S.) when it
failed to provide the complainant with access to all of the remaining in
camera records.
The
following order by the Commission is hereby recommended on the basis of the
record concerning the above-captioned complaint:
1. Forthwith, the respondent department shall permit the complainant
access to inspect all of the in camera records, except those
found to be exempt and described in paragraph 44 of the findings, above, in
keeping with the stipulation described in paragraph 19 of the findings, above.
Approved
by Order of the Freedom of Information Commission at its regular meeting of
September
22, 1999.
_________________________
Melanie
R. Balfour
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:
Joseph
J. Cassidy
Rome
McGuigan Sabanosh, P.C.
One
State Street
Hartford,
CT 06103-3101
Department
of Public Utilities,
City
of Norwich; and City of Norwich
c/o
William S. Fish, Jr. and Roger E. Koontz
Tyler,
Cooper and Alcorn, LLP
CityPlace
- 35th floor
185
Asylum Street
Hartford,
CT 06103
__________________________
Melanie
R. Balfour
Acting
Clerk of the Commission
FIC1998-293FD/mes/09231999