FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Ronald J. Cohen,
Complainants
against Docket #FIC 1998-204
Corporation Counsel, Office of the
Corporation Counsel, City of New
Haven; and City of New Haven,
Respondents February 10, 1999

        The above-captioned matter was heard as a contested case on October 13, 1998 at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. Contested case docket #FIC 1998-206, 155 Temple Street LC v. Mayor, City of New Haven; Office of Business Development, City of New Haven; Office of the Corporation Counsel, City of New Haven; and City of New Haven, was consolidated with the above captioned matter for purpose of hearing.


        After consideration of the entire record, the following facts are found and conclusions of law are reached:

        1. The respondent corporation counsel is a public agency within the meaning of 1-18a(1), G.S.

        2. By letter dated July 30, 1998 and filed on July 31, 1998 the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information ("FOI") Act by denying him a copy of certain records pertaining to the proposed New Haven Harbor/Long Wharf Regional Retail Development Project ("project"), specifically:

a. drafts of any agreements with the developers of the project; and

b. documents received from or on behalf of any department store or any proposed tenant of the project.

        3. With respect to the records described in paragraph 2a, above, it is found that by letters dated February 26 and May 18, 1998, the complainant requested that the respondents provide him with the draft agreements.

        4. It is found that the respondent corporation counsel by letter dated July 7, 1998 denied the complainant a copy of the draft Development Agreement, the draft Municipal Development Plan and/or the draft Planned Development District ( "draft agreements"), claiming that such draft agreements are exempt from disclosure pursuant 1-19(b)(1), G.S.

        5. 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.

        6. It is concluded that the draft agreements described in paragraph 4, above, are public records within the meaning of 1-19(a), G. S.

        7. Section 1-19(b)(1), G.S., permits the nondisclosure of "[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."

        8. Section 1-19(c), G.S., further provides:

Notwithstanding [ 1-19(b)(1), G.S.] … 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.

        9. It is found that the requested draft agreements constitute preliminary drafts and the respondents have determined that the public interest in withholding such draft agreements clearly outweighs the public interest in disclosure, within the meaning of 1-19(b)(1), G.S.

        10. It is further found that the draft agreements were prepared by members of staff, and are subject to revision prior to submission to or discussion among the New Haven Board of Aldermen, the public agency and decision - making body charged with the authority to approve the project.

        11. Consequently, it is concluded that the requested draft agreements are permissively exempt from disclosure pursuant to 1-19(b)(1) and 1-19(c)(1), G.S.

        12. With respect to the records described in paragraph 2b, above, it is found that the respondents do not have or maintain any records responsive to such request.

        13. Consequently, it is concluded that the respondents did not violate 1-15(a) and 1-19(a), G.S., when they failed to provide the complainant with a copy of the records described in paragraph 2, above.

        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 February 10, 1999.

 

 

_________________________

Melanie R. Balfour

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 J. Cohen, Esq.
Tyler Cooper & Alcorn, LLP
205 Church Street
PO Box 1936
New Haven, CT 06509-1910

 

Corporation Counsel,
Office of the Corporation
Counsel, City of New Haven;
and City of New Haven
c/o Atty. Thayer Baldwin
Office of Corporate Counsel
City of New Haven
165 Church Street
New Haven, CT 06510

 

 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

 

FIC1998-204FD/mrb02101999