FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by |
FINAL DECISION |
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Michael Costanza and The Day, |
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Complainant |
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against |
Docket #FIC 2000-268 |
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Director
of Utilities, Utilities Department, |
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Respondent |
April 25, 2001 |
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The above-captioned matter was heard as a contested
case on October 2, 2000, 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 §1-200(1),
G.S.
2. By letter dated
May 17, 2000 the complainants made a request to the respondents to inspect the
sales agreement and all related documents pertaining to Groton Utilities’
acquisition of Manitock Spring Water Co., Inc. of Waterford.
3. By letter dated
May 23, 2000, the respondents’ counsel responded to the complainants’
request and informed them that the City of Groton Department of Utilities was
not purchasing the Manitock Spring Water Company, Inc., but that the
corporation known as Groton Acquisition, Inc., which is wholly owned by the
City of Groton, was under contract to purchase the Manitock Spring Water
Company. The respondents’
counsel also informed the complainants that the asset purchase agreement and
related schedules and exhibits are exempt from disclosure pursuant to
§1-210(b)(5), G.S.
4. By letter dated
May 30, 2000 and filed on June 1, 2000, the complainants appealed to this
Commission alleging that the respondents violated the Freedom of Information (“FOI”)
Act by failing to provide the complainants with the requested records.
5. Section 1-210(a),
G.S., provides in relevant part that:
[e]xcept
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 . . . .
6. It is found that the requested records are public records within the meaning of §1-210(a), G.S.
7. It is found that on June 5, 2000, the respondents provided the complainants with copies of the requested records, which did not include, however, the employee records, the customer list, the accounts receivable list, and the financial statements of the Manitock Spring Water Company.
8. At the hearing on this matter, the respondents made the following claims regarding the withheld records:
a. that the list of employees and an employment agreement are exempt from disclosure pursuant to §1-210(b)(2), G.S;
b. that the assumed contracts with third parties, a list of receivables from third parties, the closing documents index, including references to employment agreement, and the customer list are exempt from disclosure pursuant to §1-210(b)(5), G.S.; and
c. that the 1999 Tax Return of Manitock and its March 2000 financial statements are exempt from disclosure pursuant to §1-210(b)(10), G.S.
The respondents submitted the withheld records to the Commission for in-camera inspection, which records have been identified as in-camera document #s 2000-268-001 through 2000-268-164, inclusive.
9. With respect to the records described in paragraph 8 above, §1-210(b)(2), G.S., provides in relevant part that nothing in the FOI Act shall be construed to require disclosure of “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .”
10. In Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993), the Supreme Court set forth the test for the exemption contained in §1-210(b)(2), G.S. The claimant must first establish that the files in question are personnel, medical or similar files. Second, the claimant must show that disclosure of the records would constitute an invasion of personal privacy. In determining whether disclosure would constitute an invasion of personal privacy, the claimant must establish both of two elements; first, that the information sought does not pertain to legitimate matters of public concern, and second, that such information is highly offensive to a reasonable person.
11. It is found that the records described in paragraph 8a, above, constitute personnel or similar files within the meaning of §1-210(b)(2), G.S.
12. It is also found that the information contained in the requested records does pertain to legitimate matters of public concern, including the public’s ability to evaluate the terms of the employment agreement.
13. It is also found that disclosure of the information contained in the requested records would not be highly offensive to a reasonable person.
14. Consequently, it is concluded that the records described in paragraph 8a, above, are not exempt pursuant to §1-210(b)(2), G.S., and are subject to mandatory disclosure pursuant to §1-210(a), G.S.
15. With respect to the requested records described in paragraph 8b, above, Section 1-210(b)(5), G.S., provides in relevant part that nothing in the FOI Act shall be construed to required disclosure of:
(A) trade secrets, which for purposes of the Freedom of Information Act, are defined as information, including formulas, patterns, compilations, programs, devices, methods, techniques, processes, drawings, cost data, or customer lists that (i) derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) are the subject of efforts that are reasonable under the circumstances to maintain secrecy; and
(B) commercial or financial information given in confidence, not required by statute.
16.
It is found that the
contracts with third parties, and the list of receivables from third parties
constitute commercial or financial information within the meaning of
§1-210(b)(5)(B), G.S., and that such information was given to the respondents
in confidence and was not required by statute.
17.
It is concluded
therefore that the records described in paragraph 16, above, are permissibly
exempt from disclosure pursuant to §1-210(b)(5)(B), G.S.
18.
It is found that the
customer list constitutes a trade secret within the meaning of
§1-210(b)(5)(A), G.S., and that such list is therefore permissibly exempt
from disclosure pursuant thereto.
19.
It is found that the
closing documents index, including the references to the employment agreement,
although given in confidence, does not constitute a trade secret or commercial
or financial information within the meaning of §1-210(b)(5), G.S.
20.
Consequently, it is
concluded that closing documents index, including the references to the
employment agreement, is not exempt from mandatory disclosure pursuant to
§1-210(b)(5), G.S.
21. With respect to the records described in paragraph 8c, above, §1-210(b)(10), G.S., provides in relevant part that nothing in the FOI Act shall be construed to require disclosure of “records, tax returns, reports and statements exempted by federal law or state statutes or communications privileged by the attorney client relationship . . . .”
22.
It is found that 1999
Tax Return of Manitock and its March 2000 financial statements together
constitute the tax return of the Manitock Spring Water Company within meaning
of §1-210(b)(10), G.S., and are exempt from disclosure pursuant to thereto.
23.
It is concluded that,
based on the foregoing, the respondents violated the disclosure provisions of
§1-210(a), G.S., by failing to provide the complainants with access to
inspect the list of employees, the employment agreement, and the closing
documents index.
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 the records described as the
list of employees, the employment agreement, and the closing documents.
2.
In complying with the
order in paragraph 1, above, the respondents may redact the social security
numbers and the payroll deduction and tax information found on the list of
employees, in keeping with Commission precedent.
Approved by Order of the Freedom of Information Commission at its regular meeting of April 25, 2001.
_________________________________________
Petrea A. Jones
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:
Michael Costanza and The Day
c/o Gladys Alcedo, Staff Reporter
The Day
PO Box 1231
New London, CT 06320
Director of Utilities, Utilities
Department, City of Groton; and
Mayor, City of Groton
c/o Richard J. Pascal, Esq.
O'Brien, Shafner, Stuart, Kelly & Morris, PC
138 Main Street, PO Box 310
Norwich, CT 06360
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2000-268/FD/paj/05/02/2001