Freedom of Information Commission
of the State of Connecticut
In the Matter of a Complaint by Final Decision
against Docket #FIC 1995-340
Assistant Director, Marine Fisheries,
State of Connecticut, Department of
Respondent July 24, 1996
The above-captioned matter was heard as a contested case on February 27, 1996, 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. By letter dated September 28, 1995, the complainant requested that the respondent provide him with “the specific landings of total bushels each harvest[er] reported to you individually of oysters and clams for the years ending [1989-1994].”
3. By letter dated October 10, 1995, the respondent denied the complainant’s request, claiming that the records containing the requested information were exempt from disclosure pursuant to §26-157b, G.S.
4. By letter dated October 10 and filed October 13, 1995, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with his request.
5. It is found that commercial shellfish harvesters are licensed and regulated by the department of agriculture, and commercial fisherman and licensed and regulated by the department of environmental protection.
Docket #FIC 1995-340 Page 2
6. It is found that pursuant to an inter-agency agreement between the state departments of agriculture and environmental protection, the respondent, who is statutorily required to maintain statistical data on commercial fishermen, also solicits and collects data on landings of oysters and clams from commercial shellfish harvesters annually in statistical surveys (hereinafter “survey records”).
7. It is found that completion and submission of the surveys by commercial shellfish harvesters is voluntary, and the respondent’s cover letter attached to the surveys states that individual information will be kept confidential and only aggregate data will be released.
8. It is found that the surveys submitted to the respondent are public records within the meaning of §§1-18a(d) and 1-19(a), G.S.
9. The respondent claims that the survey records are exempt from disclosure pursuant to §26-157b, G.S., which provides, in pertinent part:
(a) Each person who holds a commercial fishing license, license to take lobsters for personal use, license to buy finfish, lobsters, crabs, sea scallops, squid or bait species for resale, license to land lobsters, sea scallops, finfish, crabs or squid, purse seine registration or pound net registration shall report to the commissioner [of the department of environmental protection], at such intervals and at such times as may be required and upon forms provided by the commission, such information as the commissioner deems necessary. Such information may include but is not limited to: The number of individuals employed by such person, the number and value of boats, nets, apparatus and other devices used, the area fished, the effort expended and the number, weight, market value and species of finfish, lobsters, sea scallops, squid, or crabs caught, landed or purchased. Each person who holds a party boat, head boat or charter boat registration shall report to the commissioner, at such times and at such intervals as may be required and upon forms provided by the commissioner, such information as the commissioner deems necessary, which may include but is not limited to: The number of individuals carried for the purpose of fishing, the area fished, the effort expended, the number and weight by species of all finfish taken and, if any of the catch is sold by such person or by the caption or crew of such vessel, the number, weight, species and value of such finfish. …
Docket #FIC 1995-340 Page 3
(c) Notwithstanding any provision of section 1-19 to the contrary, no person shall obtain, attempt to obtain or release to any person or government agency any identifiable individual record of or information derived from any report submitted in accordance with the provisions of subsection (a) of this section or submitted voluntarily upon request of the commissioner without the consent of the person making the report, except that the commissioner may authorize the release of such information for the purposes of fisheries research, management and development and conservation law enforcement. Any person who violates the provisions of this section shall be fined not more than one thousand dollars or imprisoned not more than thirty days or both and each such violation shall constitute a separate offense. [Emphasis added.]
10. The complainant maintains that §26-157b, G.S., does not apply to the requested survey records, because:
a) oysters and clams are not referred to in §26-157b, G.S.;
b) the regulation of shellfish harvesters is governed by Chapter 491 of the Connecticut General Statutes, and the department of agriculture is the lead agency
on shellfish pursuant to §26-192a;
c) Chapter 490 of the Connecticut General Statutes, which contains §26-157b,
applies only to fisheries and game; and
d) the respondent’s interpretation of §26-157b, G.S., is overly broad and would permit the department of environmental protection to withhold any information voluntarily submitted to the agency, even if it in no way relates to fisheries and
11. It is concluded that §26-157b, G.S., does not refer or apply to shellfish harvesting.
12. It is found that §26-157b, G.S., was amended by Public Act 85-27 to add the language underlined in paragraph 9, above; and the respondent claims that the amendment was intended to extend the exemption for data submitted by commercial fishermen to data submitted by commercial shellfish harvesters.
13. It is found, however, that nothing in the amendment’s legislative history supports the respondent’s claim described in paragraph 12, above.
Docket #FIC 1995-340 Page 4
14. It is therefore found that the respondent failed to prove that §26-157b, G.S., provides an exemption to disclosure of the requested survey records.
15. It is also found that the assurance of confidentiality provided in the respondent’s cover letter to commercial shellfish harvesters, described in paragraph 7, above, does not provide an exemption to disclosure of the requested survey records.
16. It is therefore concluded that by failing to provide the complainant with access to inspect or copy the requested survey records, the respondent violated the provisions 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 immediately provide the complainant with access to inspect or copy the requested survey records.
2. Henceforth, the respondent shall strictly comply with the provisions of §1-19(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of July 24, 1996.
Doris V. Luetjen
Acting Clerk of the Commission
Docket # FIC 1995-340 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:
c/0 Atty. Marci J. Silverman
Cohen and Wolf, P.C.
1115 Broad Street
Bridgeport, CT 06601
State of Connecticut, Department of Environmental Protection,
c/o Asst. Atty. Gen. Richard Webb
55 Elm Street
Hartford, CT 06106
Doris V. Luetjen
Acting Clerk of the Commission