FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

John M. Leahy,

 

 

Complainants

 

 

against

 

Docket #FIC 1999-421

First Selectwoman, Town of Columbia,

 

 

Respondents

February 23, 2000

 

 

 

 

The above-captioned matter was heard as a contested case on November 29, 1999, 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 §1-200(1), G.S, [formerly §1-18a(1), G.S.].

 

2.  It is found that sometime during late August or the beginning of September 1999, the complainant made an oral request to the respondent for access to all project files and arbitration hearing transcripts pertaining to a construction dispute between the Town of Columbia (hereinafter “town”) and J.S. Nasin Company.

 

3.  By letter dated September 8, 1999, the respondent informed the complainant that based upon the advice of the town attorney, his request was denied and that the requested records would not be available for inspection until the conclusion of the arbitration hearing process. 

 

4.  By letter dated September 13, 1999 and filed on September 15, 1999, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information (hereinafter “FOI”) Act by denying his request for access to the records described in paragraph 2, above.

 

5.  It is found that the subject records pertain to a dispute between the town and a contractor concerning a school construction project and that the town and the contractor submitted their dispute to an American Arbitration Association (hereinafter “AAA”) arbitration panel.  The arbitration dispute had not been resolved as of the date of the hearing in this matter. 

 

6.  With respect to the subject transcripts, the respondent first maintains that such records are not public records subject to disclosure under the FOI Act. 

 

7.  Section 1-200(5), G.S., [formerly section 1-18a(5), G.S.], defines public records” as:

 

any 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, photo stated, photographed or recorded by any other method.  

 

8.  It is found that a stenographer prepared the subject transcripts, the costs for which were shared between the town and the contractor involved in the arbitration dispute.  It is further found that the subject transcripts were submitted directly to the town attorney or the attorneys who represent the town as co-counsel in connection with the arbitration dispute, and that the respondent never personally received copies of the subject transcripts. 

 

9.  It is concluded that although the respondent does not personally maintain the subject transcripts, such transcripts are public records within the meaning of §1-200(5), G.S. [formerly 1-18a(5), G.S.], because they relate to the conduct of the public’s business and because they are the property of the town, regardless of their physical location. 

 

10.  It is found that the subject project files consist of numerous records, both original records and copies of original records, that were culled and compiled from various departments within the town for use during the arbitration process, as well as records that were generated during the arbitration process, including records generated by the arbitration panel and counsel representing the parties in the arbitration.  It is further found that the subject project files are maintained at the law offices of the town’s private attorneys.

 

11.  It is concluded that the subject project files, which are comprised of records maintained by the town and records either generated on the town’s behalf or to the town as a result of the arbitration dispute, are public records within the meaning of §1-200(5), G.S. [formerly 1-18a(5), G.S.], for the same reasons set forth in paragraph 9, above. 

 

 

12.  Section 1-210(a), G.S. [formerly section 1-19(a), G.S.], provides in relevant part that: 

…every person shall have the right to inspect such [public] records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of §1-212, G.S. [formerly §1-15(a), G.S.].

 

13.  With respect to the subject transcripts, the respondent contends that such records should not be disclosed because the rules of the AAA require that “the arbitrator shall maintain the privacy of the [arbitration] hearings unless the law provides to the contrary.”  However, it is found that the rules of the AAA do not supersede the disclosure requirements of the FOI Act.

 

14.  It is concluded that the respondent’s failure to provide the complainant with access to the subject arbitration transcripts violated the provisions of §1-210(a), G.S. [formerly §1-15(a), G.S.].

 

15.  With respect to the subject project files, the respondent contends that permitting the complainant to inspect the subject project files would disrupt the arbitration process.  However, the respondent’s argument in this regard does not constitute an exemption to the disclosure requirements of the FOI Act. 

 

16.  Also with respect to the subject project files, the respondent contends that such files had been compiled and assembled in a specific order, and that disclosure of such files would reveal the town’s strategy in connection with the arbitration dispute and that such files contain attorney work-product.

 

17.  It is found that attorney work-product does not constitute an exemption to the disclosure requirements of the FOI Act. 

 

18. Section 1-210(b)(4), G.S. [formerly section 1-19(b)(4), G.S.], permits the nondisclosure of  “records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party….”

 

19.  It is found that the respondent failed to prove that any specific project files, or records contained therein, constitute strategy or negotiations within the meaning of §1-210(b)(4), G.S [formerly §1-19(b)(4), G.S.], with respect to the pending arbitration dispute; it is possible however, that such files do in fact contain records that are exempt under §1-210(b)(4), G.S. [formerly §1-19(b)(4), G.S.].

 

20.  It is concluded that the respondent’s failure to provide the complainant with access to inspect the subject project files violated the provisions of §1-210(a), G.S. [formerly §1-15(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 forthwith provide the complainant with access to the subject arbitration transcripts described in paragraph 2, of the findings, above.

 

2.  Within thirty days of the mailing of the notice of final decision in this matter, the respondent shall also provide the complainant with access to inspect those records contained in the subject project files described in paragraph 2, of the findings, above, to which the contractor identified in paragraph 2, of the findings, above, already has access and to any records that were originally maintained by the town, prior to the arbitration dispute, described in paragraph 5 of the findings, which records were transferred to the law offices of the town’s  private attorneys, as described in paragraph 10, of the findings, above.

 

3.  The respondent shall provide the complainant with access to inspect any other project file records described in paragraph 2, of the findings above, at the time when such records are made available to the contractor described in paragraph 2, of the findings, above.

 

4.  The respondent shall provide the complainant with access to inspect all other project file records described in paragraph 2, of the findings above, at the conclusion of the arbitration dispute, described in paragraph 5, of the findings, above.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of

February 23, 2000.

 

 

_________________________

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:

 

 

John M. Leahy

32 Wildwood Drive

Columbia, CT  06237

 

 

First Selectwoman, Town of Columbia

c/o Atty. Stanley Falkenstein

113 East Center Street

Manchester, CT  06040-5243

 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

 

FIC1999-421FD/mrb/02/25/00