FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
Christopher B. Burnham,
against Docket #FIC 94-301
State Treasurer, State of Connecticut, Office of the Treasurer,
Respondent November 23, 1994
The above-captioned matter was heard as a contested case on November 7, 1994, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint. The matter was consolidated for hearing with contested case docket #FIC 94-302; Christopher B. Burnham v. Chairman, Transportation Committee, Connecticut General Assembly.
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 with this Commission on November 1, 1994, the complainant alleged that the respondent violated the provisions of the Freedom of Information Act by denying his request of October 25, 1994.
3. It is found that by letter dated October 25, 1994, the complainant requested of the respondent the total amount of real estate write-downs in the pension funds of every real estate project from fiscal year 1986-87 to the present, broken down by project. He also requested the appraised value of each project at the end of each fiscal year and by whom the appraisal was performed.
4. It is found that by letter dated October 31, 1994, the respondent denied the complainant's request.
5. It is found that the respondent does not have any records indicating who performed the appraisals.
6. It is also found that no records of real estate write-downs in the pension funds exist from fiscal year 1990 forward.
Docket #FIC 94-301 Page 2
7. It is found that the respondent is currently attempting to verify that no records of real estate write-downs exist for the period from fiscal years 1986 to 1990, and conceded that if so located, such records would in fact be disclosable to the complainant.
8. It is found that the records of appraised value of each project ("records at issue") are public records within the meaning of 1-18a(d), G.S., and are maintained on computer disk.
9. At the hearing into this matter, the respondent made a motion to dismiss the case on the ground that the complainant's October 25, 1994 request was for information rather than for particular records. This motion was denied at that time.
10. The respondent claims that from an investment perspective, the projected financial return on a real estate investment includes not only current income (computed on a quarterly basis), but also the amount of money to be made upon the sale of that investment.
11. Accordingly, the respondent essentially argues that the public interest would be served by withholding from the public the values of (real estate) assets it holds in case it later wants to sell those assets, presumably for a higher price than the appraised value.
12. It is concluded that the respondent's claims set forth in paragraph 10, above, is mere speculation.
13. The respondent argues that the records at issue are exempt from disclosure pursuant to 1-19(b)(7), G.S., which permissibly exempts from disclosure the contents of real estate appraisals made for or by an agency relative to the acquisition of property until the property has been acquired or all proceedings or transactions have been terminated or abandoned.
14. It is concluded that the respondent's investment analyses or negotiations for the sale or other disposal of previously acquired property do not properly fall within the exemption provided by 1-19(b)(7), G.S.
15. In the alternative, the respondent claims that the records at issue are exempt from disclosure pursuant to 1-19(b)(5), G.S., as financial information given in confidence to the respondent by outside investment managers.
16. It is found that no written agreements of any kind exist concerning the respondent's claim identified in paragraph 14, above.
Docket #FIC 94-301 Page 3
17. It is also found that although the respondent represented that its outside investment managers were "reluctant" to give appraisals without confidentiality agreements, the record lacks evidence of the state of mind or understandings of the particular investment managers involved.
18. It is concluded that the records at issue are not exempt from disclosure pursuant to 1-19(b)(5), G.S.
19. It is concluded that the respondent's denial of the complainant's request for the records at issue constitutes a violation of 1-19(a), G.S.
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 to the complainant a copy of the records at issue, identified in paragraph 8 of the findings, above, free of cost.
2. The respondent shall also provide to the complainant copies of any documents it locates concerning write-downs from fiscal years 1986 to 1990. If no such records are located, the respondent shall provide an affidavit stating such to the complainant at the time of compliance with the order outlined in paragraph 1, above.
3. That portion of the complaint requesting the names of individual appraisers, which information is not maintained by the respondent, is dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of November 23, 1994.
Debra L. Rembowski
Clerk of the Commission
Docket #FIC 94-301 Page 4
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:
CHRISTOPHER B. BURNHAM
c/o Charles B. Spadoni, Esq.
Shipman & Goodwin
One American Row
Hartford, CT 06103-2819
STATE TREASURER, STATE OF CONNECTICUT, OFFICE OF THE TREASURER
c/o William J. Prensky, Esq.
Assistant Attorney General
110 Sherman Street
Hartford, CT 06105
Debra L. Rembowski
Clerk of the Commission