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FREEDOM OF INFORMATION COMMISSION |
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Advisory Opinion #13 |
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Commissioner of Consumer Protection, Applicant |
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October 13, 1976 |
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The Commission agreed to furnish an advisory opinion in the above‑captioned matter, conducted a public hearing, and invited comment by persons and organizations interested in the problem posed.
The Commissioner of Consumer protection submitted the following as a statement of the basic facts:
"Pursuant to the provisions of Section 47 of Article 4, Part 2 of the Emergency Regulations of the Freedom of Information Commission, the Department of Consumer Protection requests a declaratory ruling regarding the disclosure to the public upon request of certain files prepared and maintained by the Food Division of this Department. More specifically, the Food Division administers Chapter 342, Sec. 19‑211 to 19‑239 (C.G.S. inclusive) known as the Uniform Food, Drug & Cosmetic Act and Chapter 346 (Sec. 19‑283 to 19‑291 C.G.S. inclusive ) known as the Act on Bakeries . In the administration of these Acts, investigations are conducted regarding the sanitary conditions under which food and drug products are prepared, held, transported and sold to Connecticut consumers. Ninety percent of the files prepared as a result of such investigations are closed. The basic reason for this is that the insanitary conditions discovered in such investigations are immediately corrected by the food store or bakery owner. Such files are held for a period of 5 years in order to determine if there is a recurrence of such insanitary conditions. The contents of such files that are used for law enforcement purposes when spread on a public record are, of course, available to the public. Our question relates only to the closed files. '
In the course of presenting these facts, the Commissioner alluded to the practice of the Department in reinspecting violators after the initial finding.
Commenting that this public agency has the power to release information contained in closed files in the interest of public health, the Commissioner said the problem arises when the Departments elects not to disclose the contents of such files publicly. The Commissioner then said,
'The disclosure of such closed files to the public and, particularly the press, will result in the publication of all stores and bakeries which at one time were operating under insanitary conditions, even tho [sic], corrections of such conditions had been made. Many of such owners were not aware that such conditions were in violation of law and in good faith made the necessary corrections. Publication might seriously curtail future cooperation.'
While the Commissioner does not state the issue to be resolved in the form of a question, the problem is clear. On one side stand the rights of the public to the disclosure of the facts developed by the public agency in the course of enforcing statutes and regulations for the protection of the consumer. On the other side are the interests of the persons against whom the enforcement proceedings are conducted, seeking such anonymity as they can get to protect their public reputations. Between these interests stands the enforcement agency, itself, seeking nothing more nor less than compliance with the statutes and regulations with a minimum of inconvenience to either the public or the persons being brought into compliance. The Commissioner thus inquires in her role as the custodian of the privacy or anonymity of the offender, who is the real party in interest in any such conflict of right as this.
A comparable problem was taken up by the Commission in the complaint of The Bristol Press against the Director of Health of' the City of Bristol under FIC Docket No. 75‑20. At that time the underlying considerations were substantially the same as those argued in the comments of the interested persons and organizations and the applicant Commissioner of Consumer Protection in the hearing of the instant inquiry.
The analysis of the problem raised by this request for an advisory opinion requires its division into stages that vary according to the status of the enforcement proceeding at various times. The first phase concerns the availability of information on an investigation prior to the completion of the inspection and other field activities routinely conducted by the Commissioner's inspectors. The second phase encompasses access to records after the inspection is complete and prior to placing the inspector's report in the Commissioner's closed files. The final phase relates to the public's right to inspect such records after they have been made a part of the dead files but prior to the end of the five‑year period, during which it is assumed follow up inspections will be made.
While the inspection is incomplete, the Commission finds that there is not yet any public record in the possession or control of the Commissioner. Such a report would either be unwritten or would fall within the concept of the "preliminary drafts or notes" mentioned in §2(b)(1), P.A. 75‑342.
At the other extreme the completed report is filed by the inspector with his supervisor and lies in the dead files for five years, subject to possible reinspections that may or may not occur in the enforcement process. Such a report is a public record or file relating to the conduct of the public's business, as defined by §1(d), P.A. 75‑342. All action of the Commissioner relating to the inspection reported therein is complete unless some unusual form of further enforcement activity is, in fact, in progress.
The difficult issue that remains concerns the status of the report of the inspection that has just been completed and delivered to the inspector's supervisor.
In response to a letter by the Commission requesting further data subsequent to the general information hearing, the Commissioner explained that there is in existence no regulation or statute delineating the format of the investigation process in such a way as to assist the Commission in responding to this inquiry. Such a lack of operative statutes or duly promulgated regulations requires that this opinion be premised on a system of inspection which is subject to certain vagaries according to individual inspectors and their supervisors.
Therefore, based on the information now assembled, the essential facts appear to be these. An inspection is made for the purpose of enforcing the indicated statutes. The inspector then prepares a report to his supervisor describing the findings of the inspection, and appropriate action is then ordered in behalf of the Commissioner by the instrumentality of her staff.
You are advised that, because there are no statutes or regulations prescribing the conduct of investigations and the requirements of reports of such investigations, as soon as any report by the inspector is reduced to writing, that inspection report and the order entered pursuant to its findings constitute part of the records of the Commissioner of Consumer Protection, as defined by §1(d) of P.A. 75‑342 and are available for inspection.
This conclusion is based on the definition adopted by the General Assembly that says that the term "public records" means any record, data, or information relating to the conduct of the public's business that is prepared, owned, used, received, or retained by a public agency. (This definition would encompass an inspector's report in handwritten form, even if it were never prepared in typescript for the Commissioner's permanent files. Of course, the Commissioner is a public agency, as defined by §1(a), P.A. 75‑342.)
The Commission has considered that §2(b) of P.A. 75‑342 provides that nothing in the Act shall be construed to require disclosure of the records of law enforcement agencies not otherwise available to the public that have been compiled in connection with detection or investigation of a crime, including records pertaining to claims and litigation to which the public agency is a party. Assuming for purposes of this Advisory Opinion that violations of Chapters 342 and 346 G.S. are subject to classification as crimes for purposes of P.A. 75‑342, the Commission must conclude, as it did in FIC Docket No. 75‑20, that the investigation is completed. The enforcement action is therefore no longer pending at the time the report is filed. Consequently any definitive order concerning corrective action is issued in behalf of the Commissioner on the basis of that report, however informal the staff handling of the filing and the order may be.
The Commission notes particularly that the facts presented by the Commissioner differ from the facts presented in FIC Docket No. 75‑20 for the reason that it was concluded the inspection was not completed until the reinspection had occurred in that case. In the absence of any provision for reinspection within an early and specific period of time, it is inconsistent with the intent of the General Assembly that this Commission postpone sine die the public availability of the report of an inspector charged with conducting the enforcement of any of the indicated portions of Chapters 342 and 346 G.S.
Since your question relates only to the closed files of the Commissioner, this Commission will respond explicitly to your inquiry as follows. The Commission finds that the report of an inspector becomes a part of' the closed files of the Commissioner of Consumer Protection at such time as any finding and order concerning that inspection has been communicated to the subject of the inspection for action under authority of either Chapter 342 or Chapter 346. In the event that no such finding or order has been communicated to the subject of the inspection and the report the inspection has been completed and placed in the files of the Commissioner of Consumer Protection without action, then the Commission concludes that such report of investigation is also a part of the closed files of the public agency. In either event the report of such inspection is found to be a public record that is available under §14(a) for purposes of enforcement under §14(b) of P A. 75‑342 on the basis of the facts that the Commissioner has submitted at this time.
By Order of the Freedom of
Information Commission
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Herbert Brucker, Chairman of
of the Freedom of Information
Commission
Date ___________________
Ordered_________________
Louis J. Tapogna, Clerk