FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

FINAL DECISION
Docket #FIC1996-246
June 4, 1997

In the Matter of a Complaint by Dennis Togninalli and Kim Togninalli, Complainants
against
First Selectman, Town of Sharon, Respondent

The above-captioned matter was heard as a contested case on November 25, 1996, at which time the complainants and 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 by letter dated June 12, 1996, the complainants requested a copy of the report prepared by Rollett Engineering Associates (hereinafter "engineer") for the respondent concerning the Sharon Valley Road drainage problem and the options for remediation of the damage caused to the complainants’ property as a result of the drainage problem .

3. It is found that after consultation with the town attorney, the respondent denied the complainants’ records request and cited 1-19(b)(1), G.S., as the basis for the denial.

4. By letter of complaint dated June 24, 1996, and filed with the Commission on June 27, 1996, the complainants appealed the respondent’s denial.

5. It is found that the subject report dated June 1, 1996, was prepared by the engineer and provided to both the respondent and town counsel on or about June 9, 1996.

6. It is found that the subject report is a public record within the meaning of 1-18a(d) and 1-19(a), G.S.

7. It is found that the June 1, 1996 report was stamped "preliminary report."

8. It is found that the final report was completed on June 21, 1996, and that the respondent provided the complainants with a copy of it on or about July 2, 1996.

9. It is further found that the respondent provided the complainant with a copy of the subject June 1, 1996 report on or about July 9, 1996.

10. Since the respondent provided the complainant with a copy of the June 1, 1996 report, the only issue before the Commission is whether the respondent permissibly withheld such report at the time of the request pursuant to 1-19(b)(1), G.S.

11. The respondent maintains that he did not provide the June 1, 1996 report to the complainants at the time of their request because the town counsel had determined that disclosure of the report might have led to the commencement of legal action by the complainants since the "preliminary report" failed to address all of the concerns raised by them in a March 3, 1996 letter to the respondent.

12. Section 1-19(b)(1), G.S., states that nothing in the Freedom of Information Act shall be construed to require disclosure of:

preliminary drafts and notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure….

13. Section 1-19(c), G.S., however, provides in relevant part:

Notwithstanding the provisions of subdivisions (1) and (16) of subsection (b) of this section, disclosure shall be required of (1) interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency.…

14. It is found that the subject report is a "report comprising part of the process by which governmental decisions and policies are formulated," and, therefore, is not exempt from disclosure under 1-19(b)(1), G.S.

15. It is therefore concluded that the respondent violated 1-19(a) and 1-15(a), G.S., by failing to provide to the complainant, promptly upon request, a copy of the subject June 1, 1996 report.

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

1. Henceforth, the respondent shall strictly comply with the disclosure requirements set forth in 1-19(a) and 1-15(a), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of June 4, 1997.

__________________________
Elizabeth A. Leifert
Acting 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:

Dennis Togninalli and Kim Togninalli
c/o Dennis Toginalli
224 Sharon Valley Road
Sharon, CT 06069

First Selectman, Town of Sharon
c/o Judith Dixon, Esq.
Dixon & Brooks, P.C.
45 Center Street
Winsted, CT 06098

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission

FIC 1996-246/FD/eal/06161997