FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on March 1, 2006, at which time the complainant appeared and presented testimony, exhibits and argument on the complaint.  The respondent failed to appear.  However, the respondent received and signed for the certified mail notice of the March 1, 2006 evidentiary hearing.

 

            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), G.S.

 

2.  By letter of complaint filed November 30, 2005, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to respond to his November 15, 2005 request for disclosure of information pertaining to the state’s plans to lease office space for the Department of Social Services in the New Haven area.

 

3.  It is found that the complainant is a commercial real estate broker representing the owners of property at 91 Shelton Avenue, New Haven (“91 Shelton Avenue”).

 

4.  It is found that the respondent had sought to lease office space at 91 Shelton Avenue for use by the Department of Social Services (“DSS”).

 

5.  It is found that the owners of 91 Shelton Avenue had been told by representatives of the respondent that their building had been selected as the new location for offices of DSS.

 

6.  It is found that, at the request of the respondent, the owners of 91 Shelton Avenue hired architects to verify the state’s space requirements.

7.  It is found that the complainant subsequently learned indirectly that the respondent and DSS had become dissatisfied with the property at 91 Shelton Avenue and had solicited and located an alternative property in which to locate the DSS offices.

 

8.  It is found that the respondent declined to acknowledge to the complainant that the Department of Public Works (“DPW”) was negotiating for the lease of an alternative property, that its consideration of a lease of the property at 91 Shelton Avenue had ended, or explain why it had abandoned negotiations for the lease of the property at 91 Shelton Avenue.

 

9.  It is found that, by letter dated November 15, 2005, the complainant requested, under the FOI Act, that the respondent identify the alternative property and its owner.  The complainant specifically did not ask for “anything, such as estimates or evaluations of the property, that would be exempt from mandatory public disclosure under the law.”

 

10.  It is found that the respondent by letter dated November 25, 2005, responded:

 

Any document containing the information you request would necessarily fall into the exempt category you cited, Section 1-210(b)(7).   Since the FOI Act requires disclosure of documents, and not information generally, your request cannot be satisfied at this time.  The department’s need to protect the States’ [sic] bargaining position outweighs the public interest in disclosure until such time that all negotiations have been concluded and the transaction is completed.  [Emphasis in original.]

 

11.  Section 1-200(5), G.S., provides:

 

“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

12.  Section 1-210(a), G.S., 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 … receive a copy of such records in accordance with section 1-212.  … Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located or of the Secretary of the State, as the case may be. 

 

13.  Section 1-210(b)(7), G.S., provides that disclosure is not required of:

 

The contents of real estate appraisals, engineering or feasibility estimates and evaluations made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts, until such time as all of the property has been acquired or all proceedings or transactions have been terminated or abandoned, provided the law of eminent domain shall not be affected by this provision ….

 

14.  It is found that, in his negotiations with the owners of the property at 91 Shelton Avenue, the respondent prepared and received documents, such as letters and other correspondence, that pertain to the conduct of the public’s business, and that contain the identity of the property at 91 Shelton Avenue and its owners.

 

15.  It is found, by reasonable inference, that the respondent also prepared and received documents, such as letters and other correspondence, that pertain to the conduct of the public’s business, and that contain the identity of the alternative property and its owners.

 

16.  It is concluded that the documents described in paragraph 15 of the findings, above, are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

17.  The respondent in his November 25, 2005 letter asserted that it had no obligation to provide information, only records.

 

18.  It is found, however, that both the complainant, who excluded from his request certain exempt categories of records, and the respondent, who specifically declined to produce “[a]ny document containing the information you request,” understood the complainant’s request to be one for public records under the FOI Act.  See Perkins v. FOIC, 228 Conn. 158, 167 (1993):

 

As a practical matter, the FOIA is used repeatedly by members of the public who are unschooled in technical, legalistic language distinctions. It would be unreasonable to deny a member of the public access to the FOIA simply because of arguable imperfections in the form in which a request for public records is couched. A talismanic insistence on the use of the word "record" would be inconsistent with the spirit and the policy of the FOIA.

 

19.  It is concluded that the complainant requested public records under the FOI Act.

 

20.  In support of his claim that the requested records are exempt from disclosure pursuant to §1-210(b)(7), G.S., the respondent contends that any document containing the information that the complainant requested “would necessarily fall into the exempt category you cited, Section 1-210(b)(7), G.S.”  See paragraph 10 of the findings, above.

 

21.  The burden of establishing the applicability of an exemption clearly rests upon the party claiming the exemption. See Hartford v. Freedom of Information Commission, 201 Conn. 421, 431, 518 A.2d 49 (1986); Maher v. Freedom of Information Commission, 192 Conn. 310, 315, 472 A.2d 321 (1984); Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 188, 470 A.2d 1209 (1984); Wilson v. Freedom of Information Commission, 328-29, 341; see also State v. Januszewski, 182 Conn. 142, 170-71, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). This burden requires the claimant of the exemption to provide more than conclusory language, generalized allegations or mere arguments of counsel. Rather, a sufficiently detailed record must reflect the reasons why an exemption applies to the materials requested.

 

22.  The respondent, who was absent from the evidentiary hearing, produced no evidence in support of his claim of exemption under §1-210(b)(7), G.S.

 

23.  Contrary to the respondent’s assertion in his letter of November 25, 2005 that “[a]ny document containing the information you request would necessarily fall into the exempt category you cited, Section 1-210(b)(7),” it is concluded that for over twenty-five years it has been the established law in the state of Connecticut that “the mere fact that some information may be exempt does not exempt the entire record from disclosure.”  Trumbull v. FOIC, Docket No. 113874, Superior Court, J.D. of Fairfield at Bridgeport, Memorandum of Decision dated March 20, 1979 (Landau, J.);  see also Shedd v. FOIC, 4 C.L.T. No. 19, Court of Common Pleas, Docket No. 137388, Memorandum of Decision filed March 10, 1978 (Borden, J.).

 

24.  It is also concluded that, contrary to the respondent’s assertion in his letter of November 25, 2005, nothing in §1-210(b)(7), G.S., permits the respondent to balance DPW’s need to protect its bargaining position against the public interest in disclosure.

 

25.  It is therefore concluded that the respondent failed to prove that the requested records are permissibly exempt from disclosure under §1-210(b)(7), G.S.

 

26.  It is found that, by letter dated March 2, 2006, the respondent apologized for his failure to appear at the March 1, 2006 evidentiary hearing, reiterated his argument that the requested information is exempt from disclosure pursuant to §1-210(b)(7), G.S., and further contended that the information is exempt from disclosure pursuant to §4b-27, G.S.

 

27.  Section 4b-27, G.S., provides:

 

No person affiliated with any requesting agency shall discuss outside of that agency its real estate needs or interests prior to formal notification to the commissioner, and in no event without the authorization and supervision of the Commissioner of Public Works, which authorization shall be filed with the review board; nor shall anyone with knowledge of said needs gained as a result of his employment by the state disclose any information regarding state real estate needs to anyone except as authorized by the commissioner. Anyone who discloses any such information without authority by the commissioner before said information is made public by the commissioner shall be guilty of a class A misdemeanor.  [Emphasis added.]

 

28.  In Commissioner of Public Works v. FOIC, Docket No. CV 01 509953S, Superior Court, J.D. of New Britain, Memorandum of Decision dated April 8, 2002 (Cohn, J.), the Superior Court held that §4b-27, G.S., under similar circumstances, does not apply absent proof of several elements:

In this case, the commissioner also argues that the FOIC did not address § 4b-27 in its decision.  [Footnote omitted.]  In the case of Preston v. Judicial Branch, FIC # 01-029, the FOIC found that the Judicial Branch was correct in not disclosing documents similar to those requested in this case because of the applicability of § 4b-27. Again, the commissioner's argument must fail because he made no effort to show the applicability of § 4b-27 to the facts of this case. For example, without describing the documents there was no way for the hearing officer to know if the requested documents related to "real estate needs" or bore any connection to real estate.

The statute, furthermore, prohibits the "requesting agency" or "anyone with knowledge of such needs" from disclosing real estate needs without the written authorization of the commissioner as filed with the properties review board. The FOIC could have concluded, relying upon § 4b-27, that it would be illegal for the Judicial Branch to disclose the requested documents in FIC #01-029, while concluding that the statute does not specifically apply to a refusal by the commissioner to disclose "real estate needs." (See ROR, Item 12, pp. 740-75.) The literal meaning of a statute should ordinarily govern. State v. State Employees Review Board, 239 Conn. 638, 654 (1997). [Emphasis added.]

29.  It is found that the respondent, as in Commissioner of Public Works v. FOIC, above, made no effort to show the applicability of §4b-27, G.S., to the facts of this case.

 

30.  It is concluded that §4b-27, G.S., does not by its plain language apply to a refusal by the respondent himself to disclose “real estate needs,” even if any were disclosed in the records sought by the complainant.  See Commissioner of Public Works v. FOIC, above.

 

31.  It is therefore concluded that the respondent failed to prove that the records sought by the complainant, which would disclose only the identity and owners of the alternative property, are exempt from disclosure pursuant to §4b-27, G.S.

 

32.  It is concluded that the respondent violated §1-210(a), G.S., by failing to provide copies of the requested records.

 

33.  It is further found that the respondent did not, other than the conclusory representations of counsel who failed to appear at the Commission’s evidentiary hearing, offer any proof whatsoever that the requested records are exempt from disclosure.

 

34.  It is further found that the respondent summarily denied the complainant’s request based upon a patent misreading or ignorance of the applicable statutory law under §§1-210(a), 1-210(b)(7), and 4b-27, G.S. and also the relevant case law.

 

35.  It is therefore found that the respondent denied the complainant’s right to the requested records without reasonable grounds.

 

36.  Section 1-206(b)(2), provides in relevant part:

 

… upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars

 

37.  The complainant did not request the imposition of a civil penalty against the respondent, and the respondent therefore did not have notice of the possibility of the imposition of a civil penalty.   

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

            1.  The respondent shall forthwith provide the complainant with the requested records.  The respondent may redact from the records any information other than the identity of the alternative property and its owner, as described in paragraphs 7, 9  and 15 of the findings, above.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 26, 2006.

 

________________________________

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:

 

John Keogh

Colliers Dow & Condon

205 Whitney Avenue, Suite 300

New Haven, CT 06511

 

Commissioner, State of Connecticut,

Department of Public Works

c/o Jeffrey R. Beckham, Esq.

Managing Attorney

Department of Public Works

165 Capitol Avenue

Hartford, CT 06106

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-582FD/paj/5/1/2006