FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

FINAL DECISION
Docket #FIC 1996-439
August 13, 1997

In the Matter of a Complaint by ECAP Construction Co., Complainant
against
Communications Manager, State of Connecticut, Department of Public Works and State of Connecticut, Department of Public Works Respondents

The above-captioned matter was heard as a contested case on January 23, 1997, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of 1-18a(a), G.S.

2. It is found that by letter dated May 19, 1995 the complainant, a prime contractor on the University of Connecticut Law Library construction project in Hartford submitted certain construction delay claims (hereinafter "claims") to the respondent department requesting payment of amounts alleged to be outstanding for work performed.

3. It is found that the respondent department requested that its consultant High Point Rendel ("HPR") evaluate the claims, which HPR did, and provided its preliminary findings and recommendations to the respondent department in a report dated November, 1995 (hereinafter "the report").

4. It is found that by letters dated May 22 and July 30, 1996, the complainant, through counsel, requested that the respondents provide him with a copy of the report (hereinafter "requested record").

Docket #FIC 1996-439 Page 2

5. It is found that by letters dated May 29 and August 5, 1996, the respondents denied the requests, indicating at first that the respondent department was not in possession of the requested record, and then that the requested record is exempt from disclosure pursuant to 1-19(b)(4), G.S.

6. Having failed to receive a copy of the requested record the complainant, by letter dated August 26, 1996 and filed on August 28, 1996, appealed to the Commission alleging that the respondents violated the Freedom of Information Act.

7. The Commission conducted an in camera inspection of the requested record.

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

9. Section 1-19(b)(4), G.S., permits the nondisclosure of "[r]ecords pertaining to strategy and negotiation with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled."

10. Sections 1-18a(g) and 1-18a(h)(1), G.S., provide that "pending claim" and "pending litigation" mean a written notice to an agency which sets forth a demand for legal relief ….

11. Section 4-61, G.S., gives a right to any firm or corporation which has entered into a construction contract with the state, in the event of a disputed claim, to bring an action against the state to the superior court or to submit a demand for arbitration.

12. It is found that on June 3, 1996 the complainant submitted a demand for arbitration in accordance with the provisions of 4-61, G.S.

13. It is found that the arbitration, described in paragraph 12 of the findings, above, constitutes "pending claim" and "pending litigation" within the meaning of 1-19(b)(4), 1-18a(g) and 1-18a(h)(1), G.S.

14. It is also found that the requested record pertains to strategy and negotiations with respect to the pending arbitration, described in paragraphs 12 and 13 of the findings, above.

15. It is therefore, concluded that the requested record is permissively exempt from disclosure pursuant to 1-19(b)(4), G.S.

Docket #FIC 1996-439 Page 3

16. It is further concluded that the respondents did not violate 1-15 and 1-19(a), G.S., when they failed to provide the complainant with a copy of the requested record.

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

1. The complaint is hereby dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of August 13, 1997.

__________________________
Doris V. Luetjen
Acting Clerk of the Commission

Docket #FIC1996-439 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:
ECAP Construction Co.
c/o Vincent M. Simko, Esq.
The Simko Law Firm, L.L.C.
1087 Broad Street - Suite 400
Bridgeport, CT 06604-4260

Communications Manager, State of Connecticut, Department of Public Works; and State of Connecticut, Department of Public Works
c/o Laurann Asklof
Assistant Attorney General
55 Elm Street
Hartford, CT 06106-1774

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
fic1996-439/FD/tcg/08221997