In the Matter of a Complaint by FINAL DECISION


David L. Pieterse and Ciocca Construction Corp.,




against Docket #FIC 86-271


Transportation District Engineer, State of Connecticut Department of Transportation,


Respondent December 16, 1986


The above-captioned matter was heard as a contested case on October 20, 1986, at which time the complainants and the respondent appeared and presented testimony, exhibits and argument on the complaint.


After consideration of the entire record, the following facts are found:


1. The respondent is a public agency within the meaning of 1-18a(a), G.S.


2. In FIC 86-134, David L. Pieterse v. Transportation District Engineer of the State of Connecticut Department of Transportation the Commission ordered the respondent to locate and to provide the complainant Pieterse with records documenting efforts of the Department of Transportation ("DOT") to measure the actual damages it might expect in the event of a late completion of project No. 46-96 by the Ciocca Construction Corp. The final decision in FIC 86-134 was approved by the Commission on August 13, 1986.


3. By letter of complaint filed with the Commission on September 22, 1986 the complainants alleged that as of September 18, 1986 the respondent had provided no records.


4. At hearing the respondent claimed that the notice issued by the Commission violated his due process rights because it did not contain a specific reference to 1-21k, G.S.


5. It is found that upon receipt of the complainants' letter stating that the respondent had failed to comply with the Commission's order in FIC 86-134 the Commission issued a Notice of Hearing and Order to Show Cause, to which was appended a copy


Docket #FIC 86-271 Page Two


of the complainants' letter. Such procedure was followed in accordance with the directives of 1-21i(b), G.S., and fully met the notice requirements of 4-177(b), G.S.


6. The respondent's motion to dismiss on the ground of lack of due process was, therefore, denied.


7. On or about June 18, 1986, July 22, 1986 and August 8, 1986 the respondent forwarded to the complainants information relating to the liquidated damages provision of the DOT's contract with the Ciocca Construction Corp.


8. By letter dated July 28, 1986 the complainant Pieterse informed the respondent that he was seeking documentation of efforts to measure anticipated damages, not an explanation of the liquidated damages assessment and that if no such documentation existed, he would like to be so advised in writing.


9. By letter dated August 25, 1986 the respondent informed the complainant Pieterse that his request for documentation of actual damages was being reviewed and that he would be notified when the information was available.


10. On September 4, 1986 the chief engineer of the DOT's bureau of highways met with representatives from those DOT divisions involved with liquidated damage provisions to determine whether there existed any records fitting the complainants' request which had not yet been provided. Each indicated that all relevant documents had been provided.


11. By letter dated September 10, 1986 the respondent informed the complainant Pieterse that such documents as the respondent could locate had been forwarded to him.


12. By letter dated September 19, 1986 the complainant Pieterse stated that he was not satisfied with the respondent's September 10, 1986 response.


13. By letter dated September 25, 1986 the respondent stated that he had "fully complied with the FOIC order of August 21, 1986."


14. It is found that the respondent has determined that the DOT does not have any records which document an attempt to assess actual damages which might result from a late completion of project No. 46-96. Such determination constitutes compliance with the Commission's order in FIC 86-134.


Docket #FIC 86-271 Page Three


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 special meeting of December 16, 1986


Catherine I. Hostetter

Acting Clerk of the Commission