FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by Final Decision

 

David Fink and The Hartford Courant,

 

Complainants

 

against Docket #FIC 91-235

 

Commissioner, State of Connecticut, Department of Banking

 

Respondent August 5, 1992

 

The above-captioned matter was heard as a contested case on December 16, 1991, at which time the complainants 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. It is found that by letter to the respondent dated July 30, 1991, complainant Fink (hereinafter "Fink") requested:

 

a. The dates on which banks, thrifts and all other entities subject to regulation by the Department of Banking (hereinafter "DOB") were examined by state and/or federal examiners between 1984 and 1990, inclusive. Fink specifically asked to be provided with the name of the entity, the month it was examined, the number of examiners assigned to the examination, the duration of the examination and whether it was done in conjunction with a federal regulatory agency.

 

b. The total number of bank examiners at the DOB during the period from 1983 through 1990; a breakdown listing of the division to which each examiner was assigned and in which each performed the greatest amount of work; the training each

 

Docket #FIC 91-235 Page 2

 

received before being hired and any in-service training each received; and each examiner's salary.

 

3. By reply letter dated August 1, 1991 the respondent indicated that he was denying access to the information described in paragraph 3a, above, on the ground that it was exempt from disclosure pursuant to 12 C.F.R. 309.6 and 36-16, G.S.

 

4. It is found that the respondent provided the requested information described in paragraph 3b, above, under cover of his August 1, 1991 reply letter.

 

5. By letter dated August 5, 1991 and filed August 8, 1991, the complainants appealed to the Commission alleging that the respondent denied access to certain records of the DOB.

 

6. It is found that subsequent to his July 30, 1991 request, Fink further limited his request in paragraph 3a, above, to information pertaining only to State-chartered banking institutions and credit unions.

 

7. It is found that the information sought by Fink is contained in the bank examination reports that are maintained by the DOB.

 

8. It is also found however, that some of the information sought by Fink concerning state examiners is also contained in weekly job worksheets that are maintained by the DOB.

 

9. It is found that the weekly job worksheets are submitted by the state bank examiners and maintained by the Bank Examination Division of the DOB as the "Bank Examination History" files.

 

10. It is found that the Bank Examination Division incorporates information from the weekly job worksheets into its bank examination reports.

 

11. Section 1-19(a), G.S., in relevant part, states:

 

"Except as otherwise provided by any federal law

or state statute, all records maintained or kept

on file by any public agency,...shall be public

records...and every person shall have the right to

inspect such records promptly...or to receive a

copy of such records in accordance with the

provisions of section 1-15."

 

Docket #FIC 91-235 Page 3

 

12. The respondent cites the federal regulations contained in 12 C.F.R. 309.6 to support his proposition that he is

prohibited from disclosing information pertaining to examinations in which the Federal Deposit Insurance Corporation (hereinafter "FDIC") took part.

 

13. 12 C.F.R. 309.5(c)(8) provides that a request for records from FDIC personnel may be denied if the request for records consists of:

 

"records contained in or related to examination,

operating or condition reports by or on behalf of,

or for the use of, the FDIC or any agency responsible

for the regulation or supervision of financial

institutions."

 

14. It is found that the language of 12 C.F.R. 309.5(8) although broad in scope, applies to disclosure of records by FDIC personnel, not to disclosure by state agencies.

 

15. It is found that FDIC personnel are permitted to disclose information to the respondent pursuant to 12 C.F.R. 309.6(2) which allows the Director of the FDIC or his designee:

 

"to disclose to any authorized officer or employee

of any state agency agency...copies of any report of

examination or other exempt records to the extent the

report or records pertain to a State chartered

depository institution supervised by the agency or authority."

 

16. It is found that the FDIC regulations cited by the respondent do not regulate the disclosure of information maintained by the respondent and it is therefore concluded that they do not exempt the respondent from the requirement of disclosing the records containing the requested information, under 1-19(a), G.S.

 

17. The respondent maintains that 36-16, G.S., allows him to keep confidential all records maintained by the DOB unless, in his opinion, the information should be imparted in the course of his duties.

 

18. Section 36-16, G.S., in pertinent part, states:

 

"(a) All information obtained by the [bank] commissioner or by any member of the department of banking shall be confidential except such as should, in the opinion of the commissioner, be imparted in the performance of official

 

Docket #FIC 91-235 Page 4

 

duties. (b) Examination, operating or condition reports prepared by the [bank] commissioner or prepared on behalf of or for the use of the commissioner shall be confidential unless otherwise a matter of public record..."

 

19. It is found that 36-16, G.S., is a statute which provides confidentiality for certain DOB records.

 

20. The complainants maintain that since the requested information is maintained separately in the completed weekly job worksheets and not solely in the bank examination reports it is subject to disclosure because it does not constitute information "obtained by" the respondent.

 

21. The respondent maintains that disclosure of the requested information could unnecessarily affect public confidence in the safety and soundness of particular banking institutions and might potentially cause a panic or a run on a bank, and that he therefore declined to exercise his discretionary authority under 36-16, G.S., to disclose the records containing the requested information.

 

22. It is found that 36-16, G.S., provides a broad grant of confidentiality to information that is "obtained by" the respondent in the course of his duties.

 

23. It is found however, that the requested information is information that in part is contained in administrative records that are compiled and maintained by the respondent's department, rather than information "obtained by" the respondent during the performance of his official duties, within the meaning of 36-16, G.S.

 

24. It is found that the respondent failed to prove that disclosure of the requested information would be adverse to the public interest, other than the proffer of hypotheticals described in paragraph 21, above, which should not override the policy of disclosure embodied in the Freedom of Information Act.

 

25. It is concluded on the facts of this case, that 36-16, G.S., does not act to exempt from disclosure the weekly job worksheets completed by state examiners that contain some of the requested information.

 

26. It is therefore concluded that the respondent violated the disclosure provisions of 1-19(a), G.S., when he declined to

disclose the weekly job worksheets completed by state examiners

 

Docket #FIC 91-235 Page 5

 

that contain some of the requested information described in paragraph 3a, above.

 

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

 

1. The respondent shall forthwith provide the complainants with access to the requested information concerning state examiners that is contained in the weekly job worksheets described in paragraph 8, of the findings above.

 

2. Henceforth the respondent shall comply with the disclosure requirements of 1-19(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its special meeting of August 5, 1992.

 

 

Debra L. Rembowski

Acting Clerk of the Commission

 

Docket #FIC 91-235 Page 6

 

PURSUANT TO SECTION 4-180(c), G.S. THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

David Fink

The Hartford Courant

285 Broad Street

Hartford, CT 06115

 

Commissioner, State Department of Banking

c/o Assistant Attorney General Jonathan Ensign

110 Sherman Street

Hartford, CT 06105

 

 

Debra L. Rembowski

Acting Clerk of the Commission