FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        Final Decision

 

Gregory M. Conte,

 

                                Complainant

 

                against                   Docket #FIC 95-93

 

Monroe Selectman

 

                                Respondent                          December 27, 1995

 

                The above-captioned matter was heard as a contested case on October 18, 1995, 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.  It is found that on June 10, 1994 the town of Monroe ("town") entered into a contract with Edward F. Heberger & Associates, Inc., a real estate appraisal firm, ("appraiser"), for the appraiser to provide the town with an appraisal report ("appraisal") in connection with the town's possible purchase of the Whitney Farms Golf Course ("golf course").

 

                3.  It is found that on June 30, 1994, the town entered into a confidentiality agreement ("agreement") with Chris Bargas, owner of the golf course, regarding the confidentiality of certain information being provided to the town by Bargas in connection with the town's possible purchase of the golf course.

 

                4.  It is found that on March 8, 1995 the complainant made a written request to the respondent that he be provided with access to a copy of the agreement and the appraisal.

 

                5.  It is found that by letter dated March 14, 1995, the respondent provided the complainant with a copy of the agreement, which agreement the complainant received on March 15, 1995.  However, the respondent did not provide the appraisal, indicating that he had forwarded it to Bargas to ascertain whether Bargas objected to the disclosure of any portion in light of the agreement.

 

Docket #FIC 95-93                                               Page 2

 

                6.  It is found that by letter dated March 17, 1995, the respondent provided the complainant with a redacted copy of the appraisal which the complainant received on March 18, 1995.

 

                7.  By letter of complaint dated March 23, 1995 and filed on March 31, 1995, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information ("FOI") Act by:

 

                                a.  failing to provide him with access to a copy of the appraisal within four days of his request;

 

                                b.  violating 1-19a(b), G.S., by entering into the agreement; and

 

                                c.  redacting certain portions of the appraisal prior to disclosing the appraisal.

 

                8.  It is found that the agreement and appraisal are public records within the meaning of 1-18a(d) and 1-19(a), G.S.

 

                9.  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, whether or not such records are required by any law or by any rule or regulation, 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.  [Emphasis added].

 

                10.  Section 1-19(b), G.S., in relevant part, allows non-disclosure of:

 

                                (5)...commercial or financial information given in confidence, not required by statute;

 

                                (7)  the contents of real estate appraisals, engineering or feasibility estimates and evaluations made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts, until such time as all of the property has been acquired or all proceedings or transactions have been terminated or abandoned, provided the law of eminent domain shall not be affected by this provision.  [Emphasis added.]

 

Docket #FIC 95-93                                          Page 3

 

                11.  It is found that at a March 14, 1995 town meeting, the town decided not to purchase the golf course thereby terminating or abandoning the proceedings or transactions concerning the golf course purchase within the meaning of 1-19(b)(7), G.S.

 

                12.  It is concluded that as of the town's decision on March 14, 1995 to not acquire the golf course the appraisal was no longer exempt from disclosure pursuant to the provisions of 1-19(b)(7), G.S.

 

                13.  It is found however, that the appraisal contains commercial and financial information provided to the town by Bargas and the appraiser.

 

                14.  It is found that the information redacted by the respondent comprises commercial and financial information of other golf courses supplied by the appraiser for comparison purposes, as well as financial information about the golf course's income, expense history and sales performance supplied by Bargas.

 

                15.  It is found that the redacted information constitutes commercial or financial information given to the respondent in confidence by Bargas and the appraiser, within the meaning of 1-19(b)(5), G.S.  In addition, the Commission is unaware of any statute requiring the furnishing of such information.

 

                16.  With respect to the allegation as described in paragraph 7c., above, it is concluded that the respondent did not violate 1-19(a), G.S., when he redacted the commercial and financial information, described in paragraphs 14 and 15, above, prior to disclosure to the complainant.

 

                17.  With respect to the allegation as described in paragraph 7a., above, it is concluded that the respondent's March 17, 1995 response, received by the complainant on March 18, 1995 was not prompt within the meaning of 1-19(a), G.S., since the respondent was apprised by facsimile on March 13, 1995 of the information being claimed as confidential by the appraiser and Bargas, and therefore could have made the redacted appraisal available to the complainant more expeditiously.

 

                18.  Further, it is found that disclosure of the redacted appraisal four days after the March 14, 1995 town meeting essentially precluded meaningful access to a document critical to the discourse at the town meeting.

 

                19.  With respect to the allegation as described in paragraph 7b., above, it is concluded that the respondent did not violate the FOI Act as 1-19a(b), G.S., is not applicable to any of the records at issue.

 

Docket #FIC 95 -93                                                Page 4

 

                The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

                1.  Hencefoth the respondent shall strictly comply with the promptness requirement of 1-19(a), G.S.

 

                2.  With respect to pages 62-66 of the appraisal, the respondent shall forthwith provide the complainant with access to a copy of those pages and may first redact only commercial or financial information provided in confidence by the appraiser or the seller.

 

                3.  The complaint is dismissed with respect to the allegation as described in paragraph 7b, of the findings, above.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 27, 1995.

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission

 

Docket #FIC 95-93                                               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:

Gregory M. Conte

136 Wheeler Road

Monroe, CT 06468

 

Monroe Selectman

c/o James White, Jr., Esq.

850 Main Street

Bridgeport, CT 06601

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission