In the Matter of a Complaint by FINAL DECISION


Susan G. Kniep




against Docket #FIC 88-412


Community Development Office of the Town of East Hartford


Respondent February 8, 1989


The above-captioned matter was heard as a contested case on November 18, 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 and conclusions of law are reached:


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


2. By correspondence dated September 21, 1988, the complainant requested that the respondent's housing rehabilitation specialist provide her with completed contractor qualification questionnaires for the period 1986 through 1988.


3. On October 13, 1988, the complainant received contractor qualification forms submitted with some information thereon masked.


4. By letter dated October 17, 1988, and filed with the Commission on October 18, 1988, the complainant alleged that the respondent denied her access to public records and did not respond to her request within four business days.


5. The complainant's request was limited to contractor customer references, supplier references, and subcontractor references.


6. The respondent claims that the requested records are exempt from disclosure:


a. under 1-19(b)(5), G.S., because they are commercial or financial information given in confidence, not required by statute;


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b. under 1-19(b)(10), G.S.;


c. under 1-19(b)(2), G.S.;


d. under 1-19(b)(8), G.S.;


e. by virtue of Freedom of Information Commission Advisory Opinions #58 and #52, and 4-190, G.S.; and


f. because if the records are not held to be exempt, prospective contractors would be discouraged from participation in the rehabilitation program.


7. It is found that the respondent took over 20 days to respond to the complainant's correspondence, well beyond the four business day limitation set forth in 1-21i(a), G.S.


8. It is concluded, therefore, that the respondent violated 1-21i(a), G.S. by failing to respond within four business days to the complainant's request.


9. It is found that the requested records are required by 42 United States Code 1451(d)(2), which authorizes the federal Secretary for Housing and Urban Development to establish facilities for the assembly, analysis and reporting of information pertaining to urban renewal service programs.


10. It is further found that 24 Code of Federal Regulations 511.72, promulgated in furtherance of 42 United States Code 1451(d)(2), provides for the public disclosure of urban renewal service program records.


11. It is concluded that the requested records are required by statute and are therefore not exempt from disclosure pursuant to 1-19(b)(5), G.S.


12. It is found that the requested records do not constitute records, tax returns, reports and statements exempted by federal law or state statutes, or commmunications privileged by the attorney-client relationship.


13. It is concluded that the requested records are not exempt from disclosure under 1-19(b)(10), G.S.


14. It is found that the records requested are not personnel or similar files the disclosure of which would constitute an invasion of personal privacy.


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15. It is concluded that the records are not exempt under 1-19(b)(2), G.S.


16. The respondent failed to prove that the records requested comprised statements of personal worth or personal financial data required by a licensing agency and filed by an applicant with such licensing agency to establish his personal qualification for the license, certificate or permit applied for.


17. It is concluded that the records are not exempt under 1-19(b)(8), G.S.


18. The Commission notes that Advisory Opinion #58 states that a company's customer or agent lists constitute commercial information within the meaning of 1-19(b)(5), G.S.


19. The Commission notes that Advisory Opinion #58 additionally states that the company providing the information must request confidentiality upon its submission, and the specific information must not be readily available from other sources.


20. The respondent failed to prove that during the period covered by the complainant's request, more than one contractor demanded that its completed questionnaire be made confidential or received assurances of confidentiality before completing the standard forms.


21. Advisory Opinion #58 also requires a showing that a record is not required by statute, in order for 1-19(b)(5), G.S., to apply.


22. It is concluded that even if the requested records were confidential, this would be immaterial as they are required by federal statute.


23. The Commission notes that Advisory Opinion #52 ruled that an agency may release exempt information unless prohibited by federal or state law.


24. The respondent offered no proof of any federal or state law that forbids dissemination of the requested records.


25. It is concluded that neither Advisory Opinion #58 nor #52 applies to exempt the requested records from disclosure.


26. It is found that 4-190 to 4-197, G.S., (the Personal Data Act), do not operate to exempt the requested records from disclosure under 1-15 and 1-19(a), G.S.


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27. It is found that even if the respondent had proved that disclosure of the requested records would discourage contractors from participating in the program, this would not excuse the respondent from complying with the Freedom of Information Act, nor create an exemption thereunder.


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


1. Henceforth, the respondent shall strictly comply with the time period specified by 1-21i(a), G.S.


2. The respondent forthwith shall provide the complainant with a copy of each of the completed contractor qualification questionnaires.


3. In complying with paragraph 2 of the order, above, the respondent may mask or otherwise conceal information which, if disclosed, would reveal information other than customer references, supplier references and subcontractor references.


Approved by order of the Freedom of Information Commission at its regular meeting of February 8, 1989.



Karen J. Haggett

Clerk of the Commission