OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by
Connecticut Post Limited Partnership,
Docket #FIC 2000-282
Maguire Group Inc.;
General Counsel, State
November 29, 2000
The above-captioned matter was heard as a contested case on July 5 and 26, 2000, 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. It is concluded that the
respondent Department of Economic and Community Development
(hereinafter “DECD”) is a public
agency within the meaning of §1-200(1), G.S.
By letter dated June 6, 2000 and filed on June 7, 2000, the
complainant, appealed to the Commission alleging that the Maguire Group, Inc.,
(hereinafter “Maguire”) and the DECD violated the Freedom of Information
(hereinafter “FOI”) Act by denying
it access to certain records. The
complainant’s records requests are described in paragraphs 3 and 4, below.
3. It is found that by letter
dated May 17, 2000, the complainant requested that Maguire provide it with the
a print-out of the various plans
Maguire previously provided to the complainant on disk;
access to all documents (paper and
electronic) pertaining to the Long Wharf Mall that have been created or dated
since Maguire’s prior production to the complainant; and
the letter the complainant and Maguire
discussed regarding subcontractors.
4. It is also found that by letter dated May 23, 2000, the complainant requested that the DECD provide it with various records, including, copies of electronic, magnetic, and computer records that comprise, store, or relate to voice mail messages for the following individuals: James Abromaitis, Chet Camarata, Dimple Desai, Peter Simmons, Linda Hershman and Lisa Bakanas. At the hearing in this matter, the parties agreed that there are five voice mail messages that exist which are at issue for purposes of this appeal.
5. In response to the complainant’s request to Maguire, it is found that by letter dated May 23, 2000, Maguire provided the complainant with access to the records and information responsive to the request as described in paragraph 3a) and 3c), above, however, with respect to the request as described in paragraph 3b), above, Maguire did not provide the complainant with the requested records but instead informed the complainant that “our contract with …DECD requires us to get written approval from them to release any documentation.”
6. At the hearing in this matter, the parties agreed that for purposes of this appeal, the complainant’s records requests that are outstanding are those as described in paragraphs 3b) and 4), above. These two requests present three issues that must be addressed by the Commission:
a. whether an April 12, 2000 settlement agreement entered into by the complainant and the DECD requires that the DECD permit the complainant access to inspect and/ or copy certain records in the possession of Maguire, and described in the complainant’s request at paragraph 3b), above;
b. whether Maguire is the functional equivalent of a public agency for purposes of the FOI Act and must therefore permit the complainant access to inspect and/or copy the records described in the complainant’s request at paragraph 3b), above; and
c. whether the DECD voice mail messages requested by the complainant, as described in paragraph 4, above are “public records” within the meaning of the FOI Act.
7. With respect to the issue as described in paragraph 6a), above, it is found that the complainant and the respondent DECD voluntarily entered into an agreement on April 12, 2000, in settlement of a February 29, 2000 FOI appeal brought by the complainant against Maguire (hereinafter “agreement”). It is found that Maguire is an independent contractor, providing services to the DECD in connection with DECD’s environmental review of the proposed Long Wharf Mall (hereinafter “proposed mall”).
8. The complainant contends that under the terms of the agreement, the DECD agreed to permit the complainant access to all records in Maguire’s possession concerning the proposed mall, and that such agreement had no time limitation. The DECD on the other hand contends that the agreement did not grant the complainant the right to inspect and/or copy records in Maguire’s possession on an on-going or continued basis, but rather was a one time grant of access to the records in Maguire’s possession as of the date of the agreement.
9. The Commission declines to adjudicate the construction of the agreement in this case.
10. Also, since the complainant’s records request was directed to Maguire and not to the DECD, the issue of whether the records at issue and in the possession of Maguire would be subject to disclosure if the complainant made a similar records request to the DECD, is not before the Commission at this time. The Commission will address that issue should it arise at a future date.
11. The Commission declines to address the issue of whether an entity such as Maguire is the functional equivalent of a public agency, as described in paragraph 6b, above.
12. With respect to the issue
concerning the disclosure of voice mail messages as described in paragraph
6c), above, §1-200(5), G.S., provides that:
["p]ublic records or files" mean 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, photostated,
photographed or recorded by any other method.”
13. It is found that the voice
mail messages at issue constitute “recorded data or information relating to
the conduct of the public’s business” within the meaning of §1-200(5),
14. It is therefore concluded
that the voice mail messages are “public records” within the meaning of
15. Section 1-210(a), G.S., 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 1-212.
16. The DECD contends that one of
the voice mail messages at issue is exempt from disclosure pursuant to
§1-210(b)(1), G.S., because it relates to a preliminary draft of a contract.
No claim of exemption is made with respect to the other four voice mail
17. Section 1-210(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.” [Emphasis added.]
18. It is found that the DECD
failed to prove that it has determined that the public interest in
withholding the voice mail message clearly outweighs the public interest in
disclosure, within the meaning of
§1-210(b)(1), G.S. Consequently,
the DECD failed to prove that the voice mail message is exempt from disclosure
pursuant to §1-210(b)(1), G.S.
19. Based on the specific factual
issue presented and our finding that the records were in existence at the time
the request was made, it is therefore concluded that the DECD violated
§1-210(a), G.S., when it failed to provide the complainant with access to the
voice mail messages at issue.
The following order by the Commission is hereby recommended on the basis of
the record concerning the above-captioned complaint:
1. Forthwith, the DECD shall
provide the complainant with access to the five voice mail messages at issue.
Approved by Order of the Freedom of Information Commission at its special meeting of November 29, 2000.
Ann B. Gimmartino
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:
Connecticut Post Limited Partnership
c/o William S. Fish, Jr., Esq.
Tyler, Cooper & Alcorn, LLP
185 Asylum Street
CityPlace / 35th floor
Hartford, CT 06103-3488
Maguire Group Inc.
One Court Street
New Britain, CT 06051
General Counsel, State of
Connecticut, Department of
Economic and Community
Development; and State of
Connecticut, Department of
Economic and Community Development
c/o Shelagh P. McClure, Esq.
Assistant Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120
Ann B. Gimmartino
Acting Clerk of the Commission