In the Matter of a Complaint by FINAL DECISION


Penny A. Bray,




against Docket #FIC 87-281


First Selectman and Town Attorney of the Town of Westport,


Respondents November 30, 1987


The above-captioned matter was heard as a contested case on November 4, 1987, at which time the complainant 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:


1. The respondents are public agencies within the meaning of 1-18a(a), G.S.


2. By complaint filed September 30, 1987, the complainant, who is a member of the Representative Town Meeting (RTM, hereinafter), and the Planning and Zoning Committee of the RTM, alleged that on September 29, 1987, she was denied access to the details of the appraisal of property known as Baron's land in Westport, Ct., by the first selectman.


3. It is found that the respondents denied the complainant access to the appraisal on September 29, 1987.


4. It is found that the value of the property known as Baron's land in the appraisal report has been disclosed, but that other details in that report have not been disclosed.


5. It is found that the Planning and Zoning Committee of the RTM, of which the complainant is a member, was required by law to submit a report on the proposed acquisition of Baron's land by the town for open space.


6. The respondents claimed that the record was exempt from the requirement of public inspection set forth at 1-19(a), G.S., because the contents of real estate appraisals made for a public agency relative to the acquisition of property are exempt under 1-19(b)(7), G.S.


Docket #FIC 87-281 page 2


7. The complainant alleged that 1-19(b)(7), G.S. did not apply to this appraisal because the RTM and the first selectman proposed to acquire the land by condemnation and because 1-19(b)(7), G.S. provides expressly that "the law of eminent domain shall not be affected by this provision".


8. It is found that the question of whether to acquire the property known as Baron's land for 8.75 million dollars must be decided in a public referendum which has not yet occurred.


9. It is found that condemnation proceedings have not begun with respect to the property.


10. It is concluded that the respondents' failure to disclose the appraisal to the public pursuant to 1-19(b)(7), G.S., cannot affect the law of eminent domain because the decision to condemn the property has not been made.


11. The complainant claimed further that the appraisal was not exempt from disclosure because it had been disclosed selectively to certain members of the public.


12. It is found that the appraisal report was reviewed by various members of the finance committee of the RTM and by members of the board of finance.


13. On each occasion that the report was distributed to members of the finance committee of the RTM and to the moderator of the RTM, copies of the report were numbered and were returned after the officials had reviewed them.


14. It is found that the disclosure of the report to persons on the RTM and members of the finance committee by the respondents did not constitute a waiver of their right to claim the exemption.


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.


2. While the Freedom of Information Commission finds a legal basis for the respondents' claim of exemption from the general rule of disclosure, the complainant, herein, is right


Docket #FIC 87-281 page 3


in pressing for full disclosure of all details of the apraisal report because disclosure under the circumstances of this case is supported by the intent of the legislature when it adopted the Freedom of Information Act. The failure of the respondents to provide public access to the appraisal makes the decision in the upcoming referendum less likely to be a well-informed decision. Thus, the Commission urges the respondents to make the appraisal available so that members of the public can make an informed choice when they vote on the referendum concerning land acquisition.


Approved by order of the Freedom of Information Commission at its special meeting of November 30, 1987.



Catherine H. Lynch

Acting Clerk of the Commission