FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Ronald E. Emery and AFSCME, Local 1303-232,

 

 

Complainants

 

 

against

 

Docket #FIC 1997-393

Chairman, Stonington Water Pollution Control Authority, Town of Stonington, and Stonington Water Pollution Control Authority, Town of Stonington,

 

 

Respondents

May 13, 1998

        The above-captioned matter was heard as a contested case on February 20, 1998 at which time the complainants 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(1), G.S.

        2. It is found that by letter dated November 22, 1997, the complainants requested that the respondent chairman provide them with access to all of the following records (hereinafter "requested records"):

i) documents regarding the April 9, 1997 release of unchlorinated waste water and alarm malfunctioning at the Pawcatuck waste water treatment plant;

ii) drafts and final copies of the management audit report ;

iii) employment contracts with James "Mickey" McTigue; and

iv) recent job description for the position of assistant superintendent.

        3. It is found that by letter dated November 25, 1997 the respondent chairman provided the complainants with copies of records responsive to items iii) and iv) of the complainants’ request, as described in paragraph 2, above. However, the respondent chairman did not provide the complainants with certain draft reports that are responsive to items i) and ii) of the complainants’ request, as described in paragraph 2, above.

        4. Having failed to receive a copy of all of the requested records, the complainants appealed to the Commission by letter dated December 2, 1997 and filed on December 8, 1997, alleging that the respondents violated the Freedom of Information Act by denying them access to the requested records.

        5. At the hearing on this matter, the complainants indicated that items iii) and iv) of their request, as described in paragraph 2, above, are no longer at issue.

        6. With respect to items i) and ii) of the complainants’ request, it is found that on or about February 19, 1998 the respondents provided the complainants with two reports (hereinafter "final reports") responsive to such requests. The final reports were completed on or about February 18, 1998.

        7. It is found however, that the respondents have not provided the complainants with the draft versions of the final reports (hereinafter "draft reports").

        8. It is found that the disclosure of the draft reports is what remains at issue in this appeal.

        9. Section 1-18a(5), G.S., defines public records as "[a]ny 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."

        10. Section 1-19(a), G.S., in relevant part, further provides:

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.

        11. It is concluded that the final reports and draft reports are public records within the meaning of 1-18a(5) and 1-19(a), G.S.

        12. The respondents contend that the draft reports are exempt from disclosure pursuant to 1-19(b)(1) and 1-19(c)(1), G.S.

        13. Section 1-19(b)(1), G.S., permits a public agency to withhold from disclosure "[p]reliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure."

        14. Section 1-19(c)(1), G.S., further provides that "[d]isclosure 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."

        15. It is found that the draft reports constitute preliminary drafts within the meaning of 1-19(b)(1) and 1-19(c)(1), G.S.

        16. It is also found that the respondents reasonably determined that the public interest in withholding the draft reports clearly outweighs the public interest in disclosure.

        17. It is further found that the draft reports were prepared by a member of staff and subject to revision prior to submission to or discussion among the members of the respondent authority, within the meaning of 1-19(c)(1), G.S.

        18. It is therefore, concluded that the draft reports are permissively exempt from disclosure pursuant to 1-19(b)(1) and 1-19(c)(1), G.S., and the respondents did not violate 1-15(a) and 1-19(a), G.S., when they failed to provide the complainants with a copy of such draft reports.

        19. With respect to the final reports provided to the complainants on or about February 19, 1998, described in paragraph 6, above, it is concluded that the respondents provided access promptly within the meaning of 1-15(a) and 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 complaint is dismissed.

        Approved by Order of the Freedom of Information Commission at its regular meeting of May 13, 1998.

_________________________
Doris V. Luetjen
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:
Ronald E. Emery
AFSCME, Local 1303-232
25 Lathrop Avenue
Pawcatuck, CT 06379

Chairman, Stonington Water Pollution Control Authority, Town of Stonington, and Stonington Water Pollution Control Authority, Town of Stonington
c/o Atty. Susan M. Phillips
Suisman, Shapiro, Wool, Brennan & Gray PC
P.O. Box 1591
New London, CT 06320

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-393/FD/tcg/05181998