FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
Rick Green and the Hartford Courant,
against Docket #FIC 94-224
Hartford Purchasing Department,
Respondent April 5, 1995
The above-captioned matter was heard as a contested case on February 22, 1995, 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. It is found that on June 1, 1994 the City of Hartford (hereinafter "City") issued a Request for Proposal #4071 for the management of the Hartford Public Schools (hereinafter "RFP").
3. It is found that in response to the RFP, the City received three proposals from Educational Alternatives, Inc., ("EAI"), Public Educational Services, Inc. ("PESI") and Hartford Federation of Teachers.
4. It is found that on July 8, 1994, the complainants made a written request to the respondent for access to copies of all proposals submitted in response to the City's RFP.
5. It is found that on July 8, 1994, the respondent orally denied the complainants' request and then on July 11, 1994 sent the complainants a formal written denial.
6. Having failed to receive access to the requested proposals the complainants, by letter dated and filed with the Commission on July 8, 1994, appealed to the Commission, alleging that the respondent violated the Freedom of Information ("FOI") Act by denying them access to the proposals.
Docket #FIC 94-224 Page 2
7. It is found that on July 15, 1994 the respondent provided the complainants with access to copies of the requested proposals.
8. Consequently, the only issue before the Commission is whether the access provided by the respondent comports with the requirements as set forth at 1-19(a), G.S.
9. The complainants contend that provision of access by the respondent on July 15, 1994 violated their rights in light of the fact that the respondent permitted various City and Board of Education officials to view the proposals prior to July 15, 1994, but denied the complainants the same opportunity.
10. The respondents, on the other hand, contend that the complainants' appeal is moot because the complainants gained access to the proposal on or about July 12, 1994, albeit from a source other than the respondent. The respondents contend further, that the proposals are exempt from disclosure pursuant to 1-19(b)(5), 1-19(b)(7), G.S., and the City's Charter.
11. The Commission takes administrative notice of the record and decision in Docket #FIC 93-75, Eric Lipton, Anita M. Seline and the Hartford Courant v. Hartford Purchasing Department.
12. Section 1-18a(d), G.S., defines public record as any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.
13. Section 1-19(a), G.S., provides in relevant part:
Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency ... shall be public records and every person shall have the right to inspect such records promptly during
regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15.
14. It is concluded that the proposals are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
Docket #FIC 94-224 Page 3
15. Section 1-19(b)(5), G.S., allows for the discretionary nondisclosure of "commercial or financial information given in confidence, not required by statute."
16. It is found that the proposals consist of various types of records including, but not limited to, a "transmittal" letter briefly indicating the company's background, experience and general understanding of the project, to more detailed information regarding the specifics of managing the project, cost proposals, financial statements and other information pertaining to the company's financial soundness.
17. It is found that EAI submitted its proposal to the respondent in confidence until a contract had been executed or the RFP process had come to some other conclusion. PESI submitted its proposal in confidence, indicating that the technical portions of their proposal was proprietary and subject to "restrictive covenants," however they had no objections to disclosure of the non-technical portion.
18. It is found that in light of findings 16 and 17, above, portions of the proposals contain commercial and financial information. In addition, the Commission is not aware of any statute mandating the submission of that information.
19. With respect to the respondent's other arguments, referred to in paragraph 10, above, it is concluded that the respondent failed to prove that the proposals are exempt pursuant to 1-19(b)(7), G.S., and the City's Charter.
20. It is also found that the complainants' ability to gain access to the proposals from a source other than from the respondent did not relieve the respondent of its own responsibility to provide access to public records, if not otherwise exempt by federal law or state statute.
21. It is therefore concluded that the respondent did not violate the complainants' rights when it failed to provide access to those portions of the proposals containing commercial and financial information permissibly exempt under 1-19(b)(5), G.S. However, the respondent violated the complainants' rights when it failed to provide access to those portions of the proposals containing information not exempt under 1-19(b)(5), G.S.
The following order by the Commission is hereby recommended on the basis of the record in the above-captioned complaint:
1. Henceforth, the respondent shall promptly provide access to those portions of the proposals not exempt under 1-19(b)(5), G.S.
Docket #FIC 94-224 Page 4
Approved by Order of the Freedom of Information Commission at its special meeting of April 5, 1995.
Debra L. Rembowski
Clerk of the Commission
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:
RICK GREEN AND THE HARTFORD COURANT
285 Broad Street
Hartford, CT 06115
HARTFORD PURCHASING DEPARTMENT
c/o Karen K. Buffkin, Esq.
Office of the Corporation Counsel
550 Main Street
Hartford, CT 06103
Debra L. Rembowski
Clerk of the Commission