FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Larry Williams and The Hartford Courant,
against Docket #FIC 92-133
State of Connecticut, Office of Policy and Management,
Respondent April 14, 1993
The above-captioned matter was heard as a contested case on October 9, 1992, 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. By letter to the respondent dated March 20, 1992, the complainant Williams requested the opportunity to inspect on March 23, 1992, state agency plans that were submitted by state agency heads to the respondent, in response to a March 4, 1992 memorandum from the respondent.
3. It is found that the March 4, 1992 memorandum to which Williams referred in his letter, was a memorandum from the Secretary of the respondent directing state agency heads "to develop plans for operating within the personal services funding proposed in the Governor's 1992-93 Recommended Budget." According to the memorandum, such plans were to be submitted to the respondent by March 23, 1992.
4. It is found that in response to the March 4, 1992 memorandum, state agency heads submitted individual plans to the respondent. The respondent requested that the agency plans contain categories of information, including: the agency's bi-weekly payroll, number of March retirements, position refills
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and new positions, other staff adjustments, layoffs by full-time and part-time positions, position refills, accrued sick and vacation payments to be paid to retirees and laid off employees and shift differentials and overtime amounts.
5. It is found that some of the plans submitted to the respondent included attachments that contained back-up information, such as positions, salaries, bargaining units and job classifications corresponding to the numbers and dollar amounts listed in the agency plans.
6. It is found that in his March 22, 1992 letter, Williams indicated that he was seeking access to breakdowns of early retirements, retirement refills, other refills, new positions, full-time layoffs, projected part-time positions and part-time layoffs. Williams further indicated that if a summary was available by March 23, 1992, it would be sufficient to satisfy his request.
7. By letter dated March 31, 1992, the respondent denied access to the requested records.
8. By letter to the respondent's Director of Legislative and Legal Affairs dated April 2, 1992, Williams reiterated his March request, stating that he was not seeking access to personally identifiable information or any other information beyond numerical breakdowns of the categories described in paragraph 6, above.
9. By letter dated April 13, 1992 and filed April 16, 1992, the complainants appealed the respondent's denial of access to the requested records to the Commission.
10. It is concluded that the requested records are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
11. The respondent maintains that the requested records are exempt from disclosure pursuant to 1-19(b)(1), G.S., which provides an exemption for "preliminary drafts or notes provided that the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure."
12. The respondent maintains that the requested agency plans submitted to the respondent were only preliminary recommendations to the Governor that were reviewed by the respondent's budget analysts and were then submitted to the Governor in summary form, in attempting to comply with the Governor's recommended 1992-1993 budget.
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13. Specifically, with regard to layoffs only, the respondent claims that although the requested agency plans did not contain the names of individuals, in the case of certain small agencies in which the agency recommended the elimination of a job classification or a single occupancy job title, disclosure would personally identify employees who might be subject to layoffs.
14. The respondent maintains that because disclosure of the requested agency plans might reveal personally identifiable information, as described in paragraph 13, above, the public interest in disclosure of the subject records was clearly outweighed by the pain that would be caused to the identifiable public employees by disclosure of their employment status.
15. It is found that on or about April 8, 1992, the respondent provided the complainants with a numerical summary of recommended layoffs from all agencies that submitted agency plans for 1992-1993, in response to the respondent's March 4, 1992 memorandum.
16. At the hearing on this matter, the respondent indicated its willingness to fully comply with the complainants' March request.
17. The complainants maintain that the provision of the summary on April 8, 1992 and the respondent's offer of compliance at the hearing on this matter do not constitute prompt access to public records. The complainants claim that they should have been provided access to the requested agency plans on the date specified in Williams' request.
18. The respondent did not offer any evidence in support of its contention described in paragraphs 13 and 14, above, that disclosure of the requested information contained in the requested agency plans would either reveal personally identifiable information or cause pain to public employees.
19. Furthermore, the respondent failed to offer any basis for its failure to provide the complainants with access to those portions of the records requested by the complainants that did not concern layoffs, such as the retirement numbers, position refills and new positions.
20. It is found that although the requested agency plans may have been preliminary, the respondent failed to prove that the public interest in disclosure of such records was clearly outweighed by the public interest in witholding such records.
21. Consequently, it is concluded that the respondent
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failed to prove that the exemption contained in 1-19(b)(1), G.S., provides a basis for the nondisclosure of the subject records.
22. However, even if 1-19(b)(1), G.S., were applicable here, 1-19(c)(1), G.S., provides that notwithstanding 1-19(b)(1), G.S., disclosure shall be required of:
"interagency or intra-agency memoranda or letters, advisory opinions, recommendation or any report comprising part of the process by which governmental decisions are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency...."
23. It is found that in April 1992, the Governor reviewed and approved agency plans concerning layoffs based upon his 1992-1993 recommended budget, prior to negotiating an agreement with state employee collective bargaining representatives later that year.
24. It is found that the requested records are records comprising part of the process by which governmental decisions are formulated within the meaning of 1-19(c)(1), G.S.
25. It is further found that the respondent failed to prove that the agency heads who prepared the agency reports and submitted them to the respondent in response to the March 4, 1992 memorandum constitute staff members of the respondent whose reports were subject to revision prior to submission to the respondent within the meaning of 1-19(c)(1), G.S.
26. Consequently, it is concluded that disclosure of the requested records is expressly required pursuant to the provisions contained in the first portion of 1-19(c)(1), G.S.
27. It is further concluded that the respondent violated the provisions of 1-15(a) and 1-19(a), G.S., by failing to promptly provide the complainants with those portions of the requested records, as described in paragraph 6, above.
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 disclosure provisions set forth in 1-15(a) and 1-19(a), G.S.
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Approved by Order of the Freedom of Information Commission at its regular meeting of April 14, 1993.
Debra L. Rembowski
Acting Clerk of the Commission
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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:
LARRY WILLIAMS AND THE HARTFORD COURANT
c/o The Hartford Courant
285 Broad Street
Hartford, CT. 06115-2510
STATE OF CONNECTICUT, OFFICE OF POLICY AND MANAGEMENT
c/o Judith B. Greiman
Director of Legal, Legislative and Policy Affairs
Office of Policy and Management
80 Washington Street
Hartford, CT 06106
Debra L. Rembowski
Acting Clerk of the Commission