FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Sydney M. Libby,
against Docket #FIC 93-252
Middletown High School Renovation Committee,
Respondent January 26, 1994
The above-captioned matter was heard as a contested case on December 7, 1993, 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 letter of complaint filed September 9, 1993, as amended by letter filed December 3, 1993, the complainant appealed to the Commission, alleging that the respondent met on August 31, 1993 without proper, prior notice; and that the respondent impermissibly convened in executive session to consider a financial matter.
3. It is found that the respondent held a special meeting at 7:00 p.m. on August 31, 1993.
4. It is found that the respondent filed a notice of the August 31, 1993 meeting with the town clerk on August 30, 1993 at 4:00 p.m.
5. It is found that the notice of the meeting announced that the main purpose of the meeting would be to choose a general contractor for the school.
6. It is found that the respondent unanimously voted to convene in executive session at the August 31, 1993 meeting for the stated purpose of "discussion of the financial reports received by the respondent only for their benefit."
7. It is found that the respondent discussed in executive session a financial report requested and received from Dun & Bradstreet, Inc. ("D&B") concerning one of the general contractors being considered by the respondent for the high school renovation.
Docket #FIC 93-252 Page 2
8. It is found that the financial report describes, among other things, the contractor's payment history to suppliers; its financial status (including assets, liabilities, working capital, sales, net profit, and net worth); UCC filings; the contractor's history, directors and officers; current contracts; and performance record.
9. The complainant maintains that the respondent's notice of its August 31, 1993 meeting was insufficient because it did not announce that the respondent would convene in executive session, given that the respondent had ample time to include that information in its notice, having received the report from Dun & Bradstreet on August 27, 1993.
10. Section 1-21(a), G.S., provides in relevant part:
Notice of each special meeting of every public agency ... shall be given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place thereof ... in the office of the clerk of such subdivision for any public agency of a political subdivision of the state .... The secretary or clerk shall cause any notice received under this section to be posted in his office. Such notice shall be given not less than twenty-four hours prior to the time of the special meeting .... The notice shall specify the time and place of the special meeting and the business to be transacted.... A public agency may hold an executive session as defined in subsection (e) of section 1-18a, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in said section.
11. It is concluded that nothing in 1-21(a), G.S., requires a public agency to include in its notice of special meetings an intention to convene in executive session.
12. It is also concluded that the respondent did not violate the notice requirements of 1-21(a), G.S.
13. The complainant also maintains that the purpose for the executive session was improper because the information contained in the D&B report should have been included with the contractor's bid, pursuant to 4b-92, G.S.
14. Section 4b-92, G.S., provides in relevant part that essential information in regard to a bidder's past performance and financial responsibility shall be submitted with a bid for a public building contract in such form as the awarding authority may require by specification in the bid documents and on the bid form.
15. The respondent maintains that the executive session was proper pursuant to 1-18a(e)(5) and 1-19(b)(5), G.S.
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16. Section 1-18a(e)(5), G.S., provides that an executive session may be convened to discuss any matter which would result in the disclosure of public records or the information contained therein described in 1-19(b), G.S.
17. Section 1-19(b)(5) provides that disclosure is not required of commercial or financial information given in confidence, not required by statute.
18. It is found that the commercial and financial information contained in the report is not required by 4b-92, G.S., or any other statute brought to the Commission's attention.
19. It is also found that the contract between D&B and the respondent provides in relevant part that all information provided by D&B to the respondent "shall be held in confidence, shall not be copied, and shall not be revealed or made accessible in whole or in part to any others unless required by law ...."
20. The Commission takes administrative notice of the fact that some of the information contained in the D&B report is compiled or available from public sources such as the secretary of the state.
21. It is also found that the respondent failed to prove that any information supplied by D&B to the respondent had first been supplied to D&B by the contractor in confidence.
22. It is therefore concluded that the D&B report is not exempt from disclosure pursuant to 1-19(b)(5), G.S., and that the respondent's August 31, 1992 executive session was not permissible pursuant to 1-18a(e)(5), G.S., to discuss the report.
23. At the hearing, the respondent requested the imposition of civil penalties against the complainant pursuant to 1-21i(b), G.S., on the grounds that the complaint was frivolous, without reasonable grounds, and solely for the purpose of harassing the respondent.
24. At the request of the respondent, the Commission takes administrative notice of the fact that the complainant has brought a series of complaints against various Middletown agencies, each of which complaints alleges corrupt and criminal activity by those agencies. None of these complaints had been decided at the time the hearing officer's report in this matter was issued.
25. It is found that the complainant produced no evidence whatsoever of criminal or corrupt activity in this complaint.
Docket #FIC 93-252 Page 4
26. It is concluded, however, that the complainant having prevailed in part on his complaint in this matter, his complaint cannot be found to be either frivolous or unreasonable.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. With respect to the complainant's allegations concerning the notice of the respondent's August 31, 1993 meeting, the complaint is dismissed.
2. With respect to the complainant's allegations concerning the executive session convened at the respondent's August 31, 1993 meeting, henceforth the respondent shall strictly comply with the requirements of 1-21(a), 1-18a(e)(5), and 1-19(b)(5), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 26, 1994.
Elizabeth A. Leifert
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:
Sydney M. Libby
c/o Todd Fernow, Esq.
UConn Legal Clinic
65 Elizabeth Street
Hartford, CT 06105
Middletown High School Renovation Committee
c/o Timothy Lynch, Esq.
245 DeKoven Drive
P.O. Box 1300
Middletown, CT 06457
Elizabeth A. Leifert
Acting Clerk of the Commission