FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
| Dan Levine and Hartford Advocate, | |||
| Complainants | |||
| against | Docket #FIC 2001-510 | ||
|
Barbara Waters, Commissioner, State of Connecticut, Department of Administrative Services; Alan Mazzola, Deputy Commissioner, State of Connecticut, Department of Administrative Services; and State of Connecticut, Department of Administrative Services, |
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| Respondents | September 11, 2002 | ||
The above-captioned matter was heard as a contested case on January 24, 2002, 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. It is found that the Department of Administrative Services (hereinafter “DAS”) planned to transfer the State of Connecticut’s liability for certain workers’ compensation cases to an independent insurance company (hereinafter “loss portfolio transaction”).
3. By letter dated September 13, 2001, the complainants made a request to the respondents for access to inspect and copy records:
a. “identifying all insurance companies that the state has contacted regarding transferring its workers’ compensation liabilities’
b. any and all correspondence between the state and those companies;
c. copies of any and all agreements between the state and those companies;
d. the list of names for all workers whose files have been reviewed (or may be reviewed) by those insurance companies;
e. a list of meeting dates between the state and those insurance companies.”
4. By e-mail correspondence dated September 21, 2001, the respondent deputy commissioner informed the complainants that DAS had not contacted or corresponded with any insurance companies nor has DAS entered into any agreements with any insurance companies. The respondents also informed the complainants that “because of the preliminary nature of the process the public interest in withholding any specifics regarding the transfer clearly outweighed the public interest in disclosure.” However, the respondents offered to provide the complainants with any information once the process had concluded.
5. It is found that by letter dated September 26, 2001, the complainants renewed their request directly to the respondent commissioner who forwarded the complainant’s letter to an attorney James Neil on or about October 3, 2001 for his review and response.
6. It is found that on or about October 15, 2001, Attorney Neil informed the complainants that their request was “on hold” because pursuant to DAS policy, Freedom of Information (“FOI”) requests are not considered or responded to while a procurement process is underway.
7. By letter dated and filed on November 13, 2001, the complainants appealed to this Commission alleging that the respondents violated the FOI Act by failing to comply with their request. The complainants requested that the Commission impose civil penalties against the respondents.
8. 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 or to receive a copy of such records in accordance with the provisions of section 1-212. Any rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.
9. Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record . . . .”
10. It is found that the requested records, to the extent such records exist, are public records within the meaning of §1-210(a), G.S.
11. It is found that the respondent DAS hired a consultant and two brokers who, on or about August 29, 2001, issued “Requests for Proposals” (“RFPs”) to insurance companies interested in the loss portfolio transaction. It is also found that attached to the RFP was a list of files, consisting of the names of workers and their case identification information, that would be transferred to the insurance company.
12. It is found that on or about October 1, 2001, the brokers submitted to the respondent DAS proposals from three insurance companies.
13. It is found that the respondent DAS authorized the brokers to enter negotiations with the companies, which ultimately resulted in a preliminary agreement with one of the companies, ACE Financial Solutions, on or about October 31, 2001 in the form of a “Quotation-Term Sheet.”
14. It is found that during the respondent DAS’ negotiations with ACE Financial Solutions to reach a final agreement on the policy that would be issued, the list attached to the RFP was revised a number of times by adding files and deleting files as appropriate pursuant to the terms of the agreement, described in paragraph 13, above.
15. With respect to the requested records described in paragraphs 3a, 3b, and 3e, above, it is found that although the respondents do not maintain any responsive records in their office, the brokers the respondent DAS hired who acted as the respondent DAS agents did have such records and that the respondents are entitled to the requested records from the brokers, if such records exist.
16. With respect to the requested records described in paragraph 3c, above, it is found that at the time of the complainants’ request, no such records existed. As indicted in paragraph 13, above, the respondent DAS’s agreement with ACE was entered into on or about October 31, 2001.
17. It is therefore concluded that the respondents did not violate the disclosure provisions of §§1-210(a) and 1-212(a), G.S., with respect to the complainant’s request described in paragraph 3c, above.
18. With respect to the requested records described in paragraph 3d, above, at the hearing on this matter, the respondents argued that because the list of the files to be transferred as described in paragraph 11, above, was subject to revision, it constituted a preliminary draft and is not subject to disclosure under §1-210(b)(1), G.S.
19. Section 1-210(b)(1), G.S., provides in relevant part that nothing in the FOI Act shall be construed to require the disclosure of “preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure . . . .”
20. Section 1-210(e)(1), G.S., provides in relevant part that notwithstanding the provisions of §1-210(b)(1), G.S., disclosure shall be required of:
[i]nteragency 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.
21. In Shew v. Freedom of Information Commission, the Supreme Court ruled that “the concept of preliminary [drafts or notes], as opposed to final [drafts or notes], should not depend upon . . . whether the actual documents are subject to further alteration . . .” but rather “[p]reliminary drafts or notes reflect that aspect of the agency’s function that precede formal and informed decision making . . . . It is records of this preliminary, deliberative and predecisional process that . . . the exemption was meant to encompass.” Shew v. Freedom of Information Commission, 245 Conn. 149, 165 (1998).
22. It is found that the complainants’ request as described in paragraph 3d, above, was for the list of files that were presented to the insurance companies at the time the brokers issued the RFPs.
23. It is found that issuing the list with the RFPs did not reflect an aspect of the respondents’ function that preceded formal and informed decision-making nor was it part of any preliminary, deliberative or pre-decisional process of the respondents.
24. But rather, it is found that the list the complainants requested was a necessary part of the RFP to inform potential bidders of the size and value of the loss portfolio on which they would be bidding and would constitute part of the preliminary, deliberative or pre-decisional process of such insurance companies.
25. It is also found that the revision of the list during the negotiation process does not reflect that aspect of the respondents’ function that preceded formal and informed decision-making nor was it part of any preliminary, deliberative or pre-decisional process with respect to the original list that was issued with the RFPs, but rather such revisions reflect the parties efforts to include and/or excluded files to conform with the terms of the agreement reach in October 2001.
26. It is therefore found that the list is not a “preliminary draft or note” within the meaning of §1-210(b)(1), G.S.
27. It is also found that, even if the requested list were a “preliminary draft or note” within the meaning of §1-210(b)(1), G.S., the respondents failed to establish that they made any determination that the public interest in withholding the requested records clearly outweighs the public interest in disclosure.
28. It is further concluded that with respect to the records described in paragraphs 3a, 3b, 3d, and 3e, the respondents violated §§1-210(a) and 1-212(a), G.S, by failing to promptly comply with the complainants’ request.
29. The complainants’ request for the imposition of a civil penalty against the respondents is denied.
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 conduct a diligent search of all of DAS records maintained by its consultant and brokers on behalf of DAS for records responsive to the complainant’s request, described in paragraph 3a, 3b, and 3e, of the findings above. If the requested records are located, the respondents shall forthwith provide copies to the complainants. If no such records are found, the respondents shall provide the complainants with an affidavit prepared by a person with direct knowledge of this matter detailing the nature of the search conducted, including its scope and duration, and the results of such search.
2. The respondents shall forthwith provide the complainants with a copy of the requested list described in paragraph 3d, of the findings above.
3. Henceforth the respondent shall strictly comply with the provisions of §§1-210(a), and 1-212(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of September 11, 2002.
_______________________________________
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:
Dan Levine and Hartford Advocate
c/o Stephanie S. Abrutyn, Esq.
Tribune Company - Law Department
220 East 42nd Street, 4th floor
New York, NY 10017
Barbara Waters, Commissioner, State of
Connecticut, Department of Administrative
Services; and State of Connecticut, Department of
Administrative Services
165 Capitol Avenue
Hartford, CT 06106
Alan Mazzola, Deputy Commissioner,
State of Connecticut, Department of
Administrative Services
165 Capitol Avenue
Hartford, CT 06106
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-510/FD/paj/9/16/2002