In the Matter of a Complaint by FINAL DECISION


J. Peter Fusscas,




against Docket #FIC 88‑379


Commissioner, State of Connecticut Department of Environmental Protection,


Respondent December 20, 1988


The above‑captioned matter was heard as a contested case on November 1, 1988, at which time the complainant and the respondent 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 respondent is a public agency within the meaning of 1‑18a(a), G.S.


2. It is found that in 1978 the State of Connecticut Department of Environmental Protection ("DEP") made its first, unsuccessful, attempt to acquire a 53‑acre parcel of privately‑owned property located within the boundaries of a state park in Pomfret, Connecticut.


3. It is found that in a "memorandum of understanding" dated and signed May 23, 1988, Donald Cianci, current owner of the Pomfret parcel, agreed to a "land swap" involving the exchange of the Pomfret parcel for "all or a portion of [state‑owned] land of equal value." Cianci's selections for the exchange were identified in the memorandum as two small parcels of land, one in Coventry and one in Marlborough.


4. By letter dated August 12, 1988 the respondent notified Cianci that because appraisals had revealed that the value of each of the state‑owned parcels exceeded the value of the Pomfret property the DEP would not proceed with the land swap. The respondent further stated that the DEP was still interested in acquiring the Pomfret property and that she hoped an "amicable agreement" could be reached.


Docket #FIC 88‑379 Page Two


5. By letter dated August 15, 1988 the complainant made a request of the respondent for copies of certain records regarding the proposed land swap referred to at paragraph 3, above, including the appraisals of the Pomfret, Marlborough and Coventry properties, the memorandum of understanding between Cianci and the DEP and any correspondence or other documents regarding acquisition of the Pomfret land.


6. By letter dated August 17, 1988 the respondent replied to the complainant's request by providing a copy of the memorandum of understanding. The respondent claimed that the appraisals and other documents regarding the land swap were exempt from disclosure pursuant to 1‑19(b)(7), G.S. and that certain other requested documents did not exist.


7. By letter of complaint filed with the Commission on September 15, 1988 the complainant appealed the denial of access to the requested appraisals and other records relating to the Pomfret land swap.


8. At hearing the complainant stated that, as of such date, he had received all requested records except the appraisals of the three parcels.


9. Sec. 1‑19(b)(7), G.S. exempts from disclosure "the contents of real estate appraisals . . . made for or by an agency relative to the acquisition of property . . . until such time as all of the property has been acquired or all proceedings or transactions have been terminated or abandoned."


10. The complainant claims that the requested records are not exempt from disclosure pursuant to 1‑19(b)(7), G.S., because the DEP does not intend to proceed with the proposed land swap.


11. It is found that Cianci has orally informed the DEP that he believes it is bound, by the memorandum of understanding, to complete the proposed land swap and that he intends to require its completion.


12. It is found that the DEP has a continuing interest in acquiring the Promfret parcel, based upon its determination that private development of the property would adversely affect the public's use and enjoyment of the state park in which it is located.


13. It is further found that within the two months prior to the hearing in this matter the DEP made a written offer to purchase the Pomfret property. Cianci's written rejection of the offer was received by the DEP within the two weeks prior to the hearing.


Docket #FIC 88‑379 Page Three


14. It is further found that on the date of hearing the DEP's director of land acquisitions and management, Charles J. Reed, asked the respondent to secure funding from the State of Connecticut bond commission so that a taking of the property through eminent domain could be pursued.


15. It is concluded that the DEP has not terminated or abandoned all proceedings or transactions to acquire the Pomfret property. The DEP has actively pursued the acquisition despite its stated intention to withdraw the land swap offer, and, in fact, the DEP may yet be required to make good on its offer.


16. It is further concluded that the records in question, appraisals of the Pomfret, Coventry and Marlborough parcels referred to at paragraph 3, above, are exempt from disclosure pursuant to 1‑19(b)(7), G.S. and that the respondent's denial of access to such records did not violate 1‑15 or 1‑19(a), G.S.


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 20, 1988.



Catherine H. Lynch

Acting Clerk of the Commission