FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Cross Sound Ferry Services, Inc.,
against Docket #FIC 93-184
Deputy Transportation Commissioner, Bureau of Aviation and Ports,
State of Connecticut, Department of Transportation,
Respondent May 11, 1994
The above-captioned matter was heard as a contested case on October 18, 1993, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. At the hearing on this matter, Sound Express Ferry Services, Inc. was granted intervenor status by the undersigned hearing officer.
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 dated June 7, 1993, the complainant requested from the respondent:
"...copies of the proposals that the respondent received in response to the Request for Proposals for the high speed ferry service across Long Island Sound."
3. By letter dated June 10, 1993, the respondent denied the complainant's request, maintaining that the requested records were exempt from disclosure pursuant to 1-19(b)(5), G.S.
4. By letter dated June 28, 1993 and filed June 29, 1993, the complainant appealed the respondent's denial of access to the requested records to this Commission.
Docket #FIC 93-184 Page 2
5. It is found that on or about April 23, 1993, the New York State Department of Transportation (hereinafter "New York DOT") issued a Request for Proposals (hereinafter "RFP") for development and operation of high speed ferry service, between Shoreham, New York and New Haven, Connecticut. The delivery location listed for the proposals was the New York DOT.
6. It is found that although the New York DOT solicited the RFPs for the ferry project, the respondent in this matter was jointly involved in the evaluation of the proposals since one of the sites for operation was New Haven, Connecticut.
7. It is further found that sometime prior to the, complainant's June 7, 1993 request, the respondent received copies of the proposals submitted in response to the RFP.
8. It is concluded that the requested proposals are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
9. It is found that two proposals were submitted in response to the RFP described in paragraph 5, above, from: the intervenor in this matter; and Long Island Sound Shuttle Limited Partnership (hereinafter "LISSLP").
10. It is found that from the two proposals submitted, LISSLP was selected to undertake the ferry project.
11. At the hearing on this matter, the complainant withdrew its request for the RFP from the intervening party, thereby leaving only the proposal submitted by LISSLP at issue.
12. With respect to the proposal submitted by LISSLP, it is found that the respondent provided the complainant with portions of the proposal, but did not disclose forty pages of it, claiming that such pages were exempt from disclosure pursuant to the provisions of 1-19(b)(5), G.S.
13. In relevant part, 1-19(b)(5), G.S., provides for the nondisclosure of "...commercial or financial information given in confidence, not required by statute."
14. Following the hearing on this matter, the respondent submitted the undisclosed forty pages of the subject proposal to the Commission for in camera inspection.
15. It is found that the undisclosed portions of the proposal, identified as in camera document #s 93-184-1 through 93-184-23, inclusive, consists of the following:
Docket #FIC 93-184 Page 3
proposed site plans, a listing of anticipated federal and state permit requirements, site development budget estimates, development costs and expectations, portions of LISSLP's operations plan including a description of proposed vessel, a description of the media advertising phase, personnel and organization and experience.
16. It is further found that in camera document #s 93-184-24 through 93-184-40, inclusive, consist of LISSLP's "Projected Statement of Operations and Significant Changes in Financial Position."
17. It is found that the information contained in the undisclosed portions of the subject proposal pertain to traffic and commerce in general and that some portions reveal information about LISSLP's projected finances, and that such information can reasonably be characterized as commercial or financial information within the meaning of 1-19(b)(5), G.S.
18. It is also found that LISSLP identified as confidential the forty pages at issue, when it submitted its proposal and included a statement that the data contained therein would be used or disclosed only for evaluation purposes.
19. The complainant maintains that LISSLP failed to specifically identify portions of the pages that it deemed confidential and can not broadly claim confidentiality under 1-19(b)(5), G.S.
20. It is concluded however, that the undisclosed forty pages of the subject proposal were given in confidence, within the meaning of 1-19(b)(5), G.S.
21. It is found that LISSLP was not required by any law to give the information contained in the undisclosed portion of the proposal to the respondent.
22. It is concluded therefore that the undisclosed portions of the proposal at issue are exempt from disclosure pursuant to 1-19(b)(5), G.S., and that the respondent did not violate the Freedom of Information Act by witholding such portions of the proposal from the complainant.
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.
Docket #FIC 93-184 Page 4
Approved by Order of the Freedom of Information Commission at its regular meeting of May 11, 1994.
Elizabeth A. Leifert
Acting Clerk of the Commission
Docket #FIC 93-184 Page 5
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:
Cross Sound Ferry Services, Inc.
c/o T. Jeremy Gunn, Esq.
Covington & Burling
P.O. Box 7566
1201 Pennsylvania Ave. NW
Washington, DC 20044
Deputy Transportation Commissioner,
Bureau of Aviation and Ports,
State of Connecticut, Department of Transportation
c/o Arnold K. Shimelman, Esq.
Assistant Attorney General
251 Maxim Road
Hartford, CT 06114
Sound Ferry Services, Inc.
c/o Thomas F. Maxwell, Esq.
2507 Post Road
Southport, CT 06490
Elizabeth A. Leifert
Acting Clerk of the Commission