FIC1998-294.htm

FREEDOM OF INFORMATION COMMISSION OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by			FINAL DECISION
Robert J. Bourne,
		Complainants
	against		Docket #FIC 1998-294
Department of Public Utilities, City of Norwich, and City of Norwich,
		Respondents	September 22, 1999

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 1998-293, Joseph J. Cassidy v. Department of Public Utilities, City of Norwich, and City of Norwich (“FIC 1998-293”), 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 access to inspect and copy all records with exhibits, attachments and addenda, including correspondence, documents, meeting minutes, agendas, contracts, proposals, engineering studies, financial instruments and resolutions for the period January 1, 1993 to the present, concerning the Mohegan Tribal Council of the Mohegan Tribe of Indians of Connecticut, the Mohegan Tribe of Connecticut, the Mohegan Tribal Gaming Authority and its Mohegan Sun Casino or the Mohegan Tribal Utility Authority and/or relating to any of the members of those organizations hereinafter (“requested records”).

3. It is found that by letter dated May 26, 1998, the respondent department informed the complainant that he would be contacted after a review and determination was made whether documents responsive to his request were subject to disclosure.

4. 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.

5. 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.

6. The respondent department contends that the complainant’s appeal was not timely filed in that the statutory appeal period expired on June 25, 1998, thirty days after the respondent department’s May 26, 1998 letter to the complainant, described in paragraph 3, above.

7. 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….

8. It is found that the respondent department’s May 26, 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.).

9. It is further found that between June and September 16, 1998, the complainant in docket #FIC 1998-293 and the respondent department had discussions about the complainant’s records request in an attempt to facilitate the review of such records.

10. It is found that the respondent department permitted the complainant to inspect some of the requested records on September 23, 1998, however, at that time, the respondent department denied the complainant access to many of the requested records.

11. It is concluded that the complainant’s appeal, filed on September 30, 1998, is within thirty days of the respondent department’s September 23, 1998 denial, and therefore, for purposes of this appeal is timely.

12. 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.

13. 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.

14. 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.

15. It is found that the respondent department maintains eight boxes of records, some of which are responsive to the complainant’s request. It is concluded that the eight boxes of 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.).

16. 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.

17. 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.

18. In keeping with the stipulation described in paragraph 17 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.

19. 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.

20. 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.

21. 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.

22. It is therefore, concluded that §7-232a, G.S., is not applicable to the records at issue in this appeal.

23. 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:

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 . . . .

24. 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.).

25. 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.).

26. However, it is also found that the respondent department failed to prove that any of the records described in paragraph 25 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.).

27. 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 §1-210(b)(5), G.S., (formerly §1-19(b)(5), G.S.).

28. 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”.

29. With respect to the respondent department’s third claim of exemption, the respondent department contends 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.”

30. 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).

31. 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.

32. 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.

33. 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.

34. 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.

35. 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.

36. 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.

37. 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).

38. 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.

39. 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.

40. It is found that disclosure of the information sought and described in paragraph 37 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.

41. It is therefore, concluded that disclosure of the records described in paragraph 37 above, would constitute an invasion of privacy, and consequently, such information is exempt from disclosure pursuant to §16-262c(e), G.S.

42. 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 37, 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 responsive to the complainant’s request.

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 responsive to his request, except those found to be exempt and described in paragraph 42 of the findings, above, in keeping with the stipulation described in paragraph 17 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:

Robert J. Bourne

c/o Yankee Energy

599 Research Parkway

Meriden, CT 06450 1030

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 - 35^th floor

185 Asylum Street

Hartford, CT 06103

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

FIC1998-294FD/mes/09231999