OF THE STATE OF CONNECTICUT
|In the Matter of a Complaint by||FINAL DECISION|
David Critchell and
|against||Docket #FIC 2001-530|
Corporation Counsel, City of
|Respondent||June 26, 2002|
The above-captioned matter was heard as a contested case on February 28, 2002, at which time the complainants and the respondent appeared, and presented testimony, exhibits and argument on the complaint. For the purposes of hearing, this matter was consolidated with Docket #FIC 2001-529, Edward Smith and Torrington Firefighters, Local 1567, against Corporation Counsel, City of Torrington.
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.
2. It is found that by letter dated October 24, 2001, the complainant requested that the respondent provide them with a copy of the settlement agreement between Timothy Schapp, a City of Torrington, CT firefighter and the City of Torrington (hereinafter “settlement agreement”). The settlement agreement stemmed from a federal lawsuit filed by Mr. Schapp against the City of Torrington (hereinafter “City”).
3. It is found that by letter dated October 29, 2001, the respondent denied the complainants’ request for a copy of the settlement agreement. The letter stated: “The records will not be disclosed as the agreement in question was to settle a personal dispute between the parties and its release would constitute an invasion of personal privacy and is not a matter of legitimate public concern. The City reserves its right to assert any other defenses to the release of this document.”
4. Having failed to receive a copy of the requested record, the complainant, by letter dated and filed November 29, 2001, appealed to the Commission alleging that the respondent had violated the Freedom of Information (hereinafter “FOI”) Act and requesting a hearing.
5. It is found that by letter dated January 4, 2002, the respondent informed Mr. Schapp that the City had received two requests for copies of the settlement agreement and that pursuant to the agreement and applicable state statutes, the City had refused to release it. The respondent further stated that complaints had been filed with the FOI Commission, that those complaints were scheduled to be heard in the near future and that he would notify him of the date of the hearing as he had the right to attend and be heard at said hearing.
6. It is further found that by letter dated February 4, 2002, the respondent notified Mr. Schapp that the two complaints had been scheduled to be heard on Thursday, February 28, 2002, at 2:30 p.m. and again informed him that he had the right to attend the hearing and be heard if he so desired.
7. Section 1-200(5), G.S., defines “public records” as follows:
Public records or files means 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.
8. Section 1-210(a), G.S., further 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 … receive a copy of such records in accordance with the provisions of section 1-212.
9. In turn, §1-212(a) provides in pertinent part:
Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any record.
10. It is found that the respondent maintains the requested settlement agreement and that such record is a public record within the meaning of §§1-200(5) and 1-210(a), G.S.
11. Following the hearing in this matter, the settlement agreement was submitted to the Commission for an in camera inspection.
12. It is found that the settlement agreement contains a confidentiality provision which states that the parties may not disclose its contents, except to the extent specifically required by law, including but not limited to the FOI Act, or compelled by legal processes such as subpoena, court or administrative order, discovery, or examination within a court or other administrative forum.
13. At the February 28, 2002 hearing on the matter, Mr. Schapp appeared and testified that he had no objection to disclosure of the settlement agreement but stated that he did not want to disclose it himself because of the confidentiality clause contained in the agreement.
14. At the February 28, 2002 hearing on this matter, the respondent stated that the settlement agreement was private and that it set forth the grounds upon which the federal lawsuit litigation was terminated. The only basis upon which the respondent claimed that the settlement agreement could be withheld from disclosure was pursuant to City of Hartford v. Chase, 942 F. 2d 130 (1991). The respondent stated that he was not claiming any other exemption to disclosure under federal law or state statute.
15. City of Hartford, supra, dealt with the disclosure of documents pertaining to a settlement agreement under the FOI Act when a court has entered a confidentiality order with respect to such documents. In City of Hartford, the court emphasized that a federal court’s power to seal documents takes precedence over FOI Act rules that would otherwise allow documents to be disclosed.
16. The respondent acknowledged at the hearing on this matter, that the confidentiality of the settlement agreement in this case was not approved by any court, entered as an explicit order in federal court or incorporated into any other federal court order.
17. Since the settlement agreement was not court-approved and no court has entered a confidentiality order with respect to such agreement, it is concluded that the settlement agreement is not protected from disclosure pursuant to City of Hartford, as claimed by the respondent.
18. The Commission takes administrative notice that it has previously ruled when addressing the disclosure of a settlement agreement between a public agency and a public employee, that such agency may not simply contract away the public's right to know under the FOI Act by including a provision prohibiting any party to the agreement from disclosing its terms. See FIC 94-063, Carol L. Panke v. Bloomfield Town Manager (Final Decision dated August 10, 1994).
19. Moreover, in this case, as described in paragraph 12, above, the confidentiality clause contained in the settlement agreement specifically acknowledges that the parties may be required to disclose such agreement pursuant to the FOI Act.
20. It is therefore concluded that the respondent violated the disclosure provisions of §1-212(a), G.S., by failing to provide the complainants with a copy of the requested settlement agreement 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. Forthwith, the respondent shall provide the complainants with a copy of the requested settlement agreement, as described in paragraph 2 of the findings, above.
2. Henceforth, the respondent shall strictly comply with the provisions of
Approved by Order of the Freedom of Information Commission at its regular meeting of June 26, 2002.
Petrea A. Jones
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:
David Critchell and Waterbury
c/o Thomas G. Parisot, Esq.
Secor, Cassidy & McPartland, PC
41 Church Street, PO Box 2818
Waterbury, CT 06723-2818
City of Torrington
c/o Albert G. Vasko, Esq.
140 Main Street
Torrington, CT 06790
Petrea A. Jones
Acting Clerk of the Commission