FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Meriden Realty Association,
against Docket #FIC 94-14
Connecticut Development Authority and Connecticut Department of
Respondents June 8, 1994
The above-captioned matter was heard as a contested case on March 25, 1994 at which time the complainant and respondents appeared and presented testimony, exhibits and argument on the complaint. The case caption has been changed to correctly identify the complainant in this matter.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondents are public agencies within the meaning of 1-18a(a), G.S.
2. It is found that on December 21, 1993, the complainant telephoned the respondent Connecticut Development Authority (hereinafter "CDA"), and the respondent Connecticut Department of Economic Development (hereinafter "DED"), and requested copies of four categories of documents concerning Canberra Industries:
(a) tax abatements;
(b) its relocation to the Teleco facility in Meriden, Connecticut;
(c) the respondent CDA's issuance of a one million dollar guaranteed loan;
(d) the respondent DED's issuance of a one million dollar grant; and
(e) any aid or assistance, including but not limited to, financial aid given to Canberra by either the respondent CDA or DED in connection with its relocation to the Teleco facility.
Docket #FIC 94-14 Page Two
3. Thereafter, by letter to each respondent dated December 23, 1993 (hereinafter "December request"), the complainant again requested copies of the documents described in paragraph 2 of the findings, above.
4. It is found that each respondent denied the complainant's oral request on December 21, 1993, and failed to respond to, or comply with the subsequent December requests.
5. By letter to the Commission dated January 11 and filed January 14, 1994, the complainant appealed the respondents' denials.
6. It is found that the complainant is not seeking financial, proprietary or trade secret information, or other statutorily exempt information concerning Canberra Industries.
7. It is found that on or about March 11, 1994, the respondent DED replied to the complainant's December request and enclosed two of the requested documents with the written reply.
8. It is found that sometime thereafter the respondent DED also provided the complainant with a copy of a third document concerning the assistance agreement between Canberra Industries and DED.
9. It is found that both the CDA and DED have at least one file folder full of documentation concerning Canberra Industries.
10. It is found that the requested records are public records as defined by 1-18a(d), G.S.
11. However, each respondent maintains that 32-11a(k), G.S., protects the requested records from disclosure.
12. Section 32-11a(k), G.S., states that:
All information contained in any application for financial assistance submitted to the [CDA] or [DED], and all information obtained by the [CDA] or [DED] with respect to any person or project, including all financial, credit and proprietary information, shall be exempt from the provisions of subsection (a) of section 1-19 [G.S.].
13. It is found that the respondent CDA and DED have failed to prove that the only documentation in their possession concerning Canberra Industries is either "contained in an application for financial assistance" or information "obtained by the CDA or DED" in accordance with 32-11a(k), G.S.
Docket #FIC 94-14 Page Three
14. Furthermore, despite the respondents' claim that 32-11a(k), G.S., applies to the records at issue in this case, it is found that the respondents have a policy and practice of disclosure of information similar to the information requested in this case.
15. It is found that the respondents have disclosed information about business enterprises that they have chosen to fund and/or assist financially, including Canberra Industries.
16. Specifically, it is found that sometime prior to the complainant's records requests a press conference was held by the respondents at which the CDA and DED's involvement with Canberra Industries was discussed.
17. The respondents conceded that had the complainant attended the press conference concerning the CDA and DED's involvement with Canberra Industries some of the information at issue in this matter might have been revealed to him at that time.
18. It is concluded that at their discretion the respondents construe the exemption contained in 32-11a(k), G.S., as permissive rather than mandatory, and they have no written or articulable policy concerning disclosure in those instances.
19. The respondent DED acknowledged that it is able to prepare a log of the documents that it claims are exempt from disclosure pursuant to 32-11a(k), G.S. The log could describe each document without disclosing either the document itself or its contents.
20. In an effort to facilitate the decision-making process in this case, the undersigned hearing officer requested that each respondent prepare such a log of the documents for which the exemption contained in 32-11a(k), G.S., is claimed.
21. Specifically, Commissioner Fitch requested the CDA and DED to use the log to identify and describe the documents for which the 32-11a(k), G.S., exemption is being claimed and then to produce that log--not the documents at issue--for in camera inspection by the Commission.
22. However, by objection dated and filed with the Commission on April 4, 1994, each respondent failed and refused to comply with the request to produce a log of the subject records, or to produce the records for an in camera review.
Docket #FIC 94-14 Page Four
23. It is therefore concluded that the respondents failed to prove that each of the records withheld from disclosure is wholly or partially exempt from disclosure pursuant to 1-19(a), G.S., by operation of 32-11a(k), G.S.
24. It is further concluded that the respondents violated 1-15 and 1-19(a), G.S., by not providing the complainant with timely access to the requested records.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent CDA and DED shall forthwith provide the complainant with a copy of each of the documents contained in any and all files in their posession concerning Canberra Industries.
2. In complying with paragraph 1 of this order, the respondent may redact all financial, proprietary and trade secret information concerning Canberra Industries which has not already been made public.
3. For each redaction that is made pursuant to paragraph 2 of this order, the CDA or DED shall provide the complainant with a characterization of the information redacted and a statement of the statutory basis for its redaction.
4. The Commission notes that the presentation of this case by the respondents, and their failure to make available to the Commission all information that would aid in rendering a full and fair decision in this matter, made it extremely difficult for the Commission to determine the applicability of claimed exemptions to disclosure. Consequently, where appropriate, inferences have been drawn against the respondents because of their obfuscation.
Approved by Order of the Freedom of Information Commission at its regular meeting of June 8, 1994.
Debra L. Rembowski
Clerk of the Commission
Docket #FIC 94-14 Page Five
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:
Meriden Realty Association
c/o Matthew J. Forstadt, Esq.
David W. Rubin, Esq.
Schatz & Schatz, Ribicoff & Kotkin
1 Landmark Squre, Suite 1700
Stamford, CT 06901-2676
Connecticut Development Authority and
Connecticut Department of Economic Development
c/o John Mahoney, Esq.
Shipman & Goodwin
One American Row
Hartford, CT 06103
c/o Shelagh P. McClure, Esq.
Assistant Attorney General
110 Sherman Street
Hartford, CT 06105
Debra L. Rembowski
Clerk of the Commission