FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION
Ethan Book, Jr.,  
  Complainants  
  against   Docket #FIC 2002-175
Connecticut Resources Recovery Authority,  
  Respondents December 11, 2002
       

 

            The above-captioned matter was heard as a contested case on June 21 and August 8, 2002, at which times the complainant and the respondent appeared 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 respondent is a public agency within the meaning of §1-200(1)(A), G.S.

 

2.  By letter dated April 2, 2002, the complainant requested that the respondent provide him with a copy of the following records: 1) “the proposals made to the CRRA for development of the Mid-Connecticut Resource Recovery Project by Combustion Engineering and also Signal-RESCOE”; and 2) “the proposals made to the CRRA for the redevelopment of the Greater Bridgeport Resource Recovery Project by Signal-RESCOE and Combustion Engineering” (all together, “the requested records”). 

 

3.  By letter dated April 5, 2002, the respondent acknowledged receipt of the request, stated that it was under review, and would “take some additional time to accumulate the information.”

 

4.  By letter dated and filed with the Freedom of Information Commission (“Commission”) on April 18, 2002, the complainant appealed to the Commission, alleging that the failure to provide “a substantive reply” to his request for records violated the Freedom of Information Act.

 

5.  The complainant’s main contention is that the doctrines of res judicata and collateral estoppel do not apply to the request for the Signal-RESCOE proposal for the Greater Bridgeport Resource Recovery Project (“Bridgeport Project”), and that the respondent has not made a diligent search for the requested records. Respondent takes the opposite view on both issues.

 

 6.  Administrative notice was taken of the Superior and Appellate Court decisions in Connecticut Resources Recovery Authority v. Freedom of Information Commission, Docket No. CV-87-328720, Memorandum of Decision dated August 24, 1988, dism’d 19 Conn. App. 489 (1989). These decisions resulted from the appeal of the Commission’s decision in Docket # FIC 1986-227. The Superior Court found the Signal-RESCOE proposal for the Bridgeport Project to be “commercial or financial information given in confidence, not required by statute”, and, therefore, held it to be exempt pursuant to the provision now codified at §1-210(b)(5)(B), G.S. Following a change in the statutes governing the respondent, and noting that Mr. Book was “no longer a party to this action”, the Appellate Court dismissed the appeal as moot.     

 

7.  It is found that there was no evidence of any fraud, improper influence, or collusion concerning the court decisions cited at paragraph 6, above, that would cause the normal operation of res judicata and collateral estoppel to be set aside.

 

8.  It is found that the respondent provided the complainant with Volume 2 of the Combustion Engineering proposal for the Bridgeport Project at the first Commission hearing on June 21, 2002, but that the respondent cannot locate Volume 1 of this proposal.

 

9.  It is found that the requested records are nineteen and twenty years old, dating from receipt by the respondent in 1982 and 1983. During the interval from the receipt of the requested records to the present time, the respondent started storing records off-site at the Iron Mountain facility in 1990, and also moved its offices in 1999. At the times of both the commencement of off-site storage and the office move, records were culled and the respondent disposed of some of its records.

 

10.  It is also found that, during a particularly busy period of time in the respondent’s office, the respondent conducted a search for the requested records (except those claimed to be exempt), which search was credibly claimed to have taken about 57 hours of work by a single individual and included examination of 150 to 180 boxes of records. These boxes were selected using an index, so that all possibly relevant boxes would be searched, and the boxes in question were shipped from offsite storage to respondent’s offices.

 

11.  It is further found that the administrative assistant to the respondent’s Director of Legal Services, as part of her search, inquired concerning the requested records to a risk manager who had been with the respondent for twenty-seven years and also to the Project Manager of the Mid-Connecticut Resource Recovery Project (“Mid-Connecticut Project”). Moreover, this administrative assistant reviewed the files of the president during the relevant time period (Michael Cawley) and all relevant project managers for both projects (Dave Brown, Jack McCarthy, and Ed Bowman).

 

12.  Finally, it is found that the respondent offered to allow the complainant to search its boxes of non-exempt records, pursuant to the procedures for such a search which were established in Docket #FIC 1998-196.

 

13.  It is concluded that, by operation of the doctrines of res judicata and collateral estoppel, the Superior Court decision in Connecticut Resources Recovery Authority v. Freedom of Information Commission, cited at paragraph 6, above, establishes that Signal’s proposal for the Bridgeport Project are “commercial or financial information given in confidence, not required by statute”. Therefore, pursuant to the provision now codified at §1-210(b)(5)(B), G.S., such records are exempt. Because this exemption is continuing and is not limited in time, there is no violation of §1-210, G.S., by the respondent for failure to provide to the complainant copies of Signal’s proposal for the Bridgeport Project.

 

14.  It is further concluded that the respondent has performed a diligent search for the non-exempt requested records. Accordingly, there is, again, no violation of §1-210, G.S., by the respondent for failure to provide copies to the complainant of the proposals of Combustion Engineering and Signal-RESCOE for development of the Mid-Connecticut Project or the proposal of Combustion Engineering for the redevelopment of the Bridgeport Project.

 

 

            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 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:

 

Ethan Book, Jr.

PO Box 1385

Fairfield, CT 06432

 

Connecticut Resources Recovery

Authority

c/o Michael G. Tansley, Esq.

Cicchetti & Tansley

500 Chase Parkway

Waterbury, CT 06708-3343

 

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2002-175/FD/paj/12/12/2002