OF THE STATE OF CONNECTICUT
|In the Matter of a Complaint by||FINAL DECISION|
John Mason and
The Hartford Courant,
|against||Docket #FIC 2002-049|
Hartford Economic Development
Commission, City of Hartford,
|Respondent||July 24, 2002|
The above-captioned matter was heard as a contested case on April 4, 2002, at which time the complainants 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.
2. By letter dated and filed February 4, 2002, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying their request for records pertaining to one of its loan programs.
3. It is found that the respondent provides a variety of services to neighborhoods, small businesses, corporations, and large developments.
4. It is found that, pertinent to this appeal, the respondent operates a Small Business Development (“SBD”) Program that provides services to small businesses, including assistance in obtaining loans from private sources.
5. It is found that the respondent, in assisting small business in obtaining such loans, receives commercial and financial records from the small businesses, such as tax returns, credit reports, personal financial statements, sources and use of funds, equipment lists, balance sheets, income projections, and cash flow summaries, that are the basis for advising the business, developing a business plan and marketing strategy, and applying for a loan.
6. It is found that the small business clients that use the respondent’s services provide such records to the respondent with an expectation of confidentiality,
7. It is found that, by letter dated January 28, 2002, the complainants requested that the respondent provide them with the copies of, or access to, a list of loans that had been awarded in the past year by the city of Hartford’s small business specialist program, and the names and addresses of clients who had received those loans. The complainants also requested any non-financial application information pertaining to clients applying for loans, even if they had yet to receive a loan.
8. It is found that, by letter dated January 31, 2002, the respondent’s SBD coordinator responded to the complainants by informing them that the respondent and its SBD Program did not itself award loans to clients, but worked with clients in their pursuit of funding from other entities.
9. It is found that the complainants subsequently explained to the respondent that their request was for information about loans awarded through, and not by, the SBD Program.
10. It is also found that the respondents provided some summary information to the complainants, including the respondent’s SBD Program Interim Report dated January 8, 2002, but did not provide the records requested by the complainants.
11. At the hearing, the complainants limited their request to a list of the businesses receiving or applying for loans through the respondent in the past year, the business addresses, and the business owners.
12. It is found that the respondent maintains the records described in paragraph 11, above, in its computer storage system, and can generate a list of businesses receiving or applying for loans, the businesses’ addresses, and the businesses’ owners.
13. It is further found that the records described in paragraph 11, above, are public records within the meaning of §§1-200(5), 1-210(a), and 1-211(a), G.S.
14. Section 1-210(a), G.S., provides in relevant part:
[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency…shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours….
15. Section 1-211(a), G.S., provides in relevant part:
Any public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to the Freedom of Information Act, a copy of any nonexempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such copy or have such copy made. …
16. The respondent contends that the subject of the complainants’ request is different from that of their appeal, in that their request was for records pertaining to loans that have been “awarded” by the SPD Program, but their complaint alleges that the respondent did not provide records pertaining to loans that had been facilitated by the respondent.
17. It is found that, while the respondents may have misunderstood the complainants’ initial request, the original request letter was sufficiently clear to encompass the records now sought by the complainant, as described in paragraph 11, above; and, moreover, that the complainants promptly explained their request to the respondent after they received the letter described in paragraph 8, above,
18. The respondent also contends that the requested records are exempt from disclosure pursuant §1-210(b)(5)(B), G.S., which provides in relevant part that disclosure is not required of “commercial or financial information given in confidence, not required by statute….”
19. It is found that the commercial and financial information maintained by the respondent was given in confidence.
20. It is also found, however, that the records sought by the complainants are limited to a list of businesses applying for and receiving loans, the addresses of those businesses, and their owners.
21. The respondent contends, however, that the identity of a small business applying for a loan by using the respondent’s services is itself “commercial or financial” information within the meaning of §1-210(b)(5)(B), G.S.
22. The respondent further contends that small business owners confide in the respondent in the same way that they would confide to a private lender, that disclosing a business’s use of the respondent’s services would put it at a competitive disadvantage, and that small businesses would be dissuaded from using the respondent’s services were their identities to be disclosed.
23. In Robert H. Boone and Journal Inquirer against South Windsor Economic Development Commission et al., docket #FIC94-383, ¶¶25-26, the Commission rejected a similar claim that “confidential information could not be kept separate from a company’s name.”
24. Also, in Sydney M. Libby against Middletown Jobs Loan Advisory Board, docket #FIC 95-257, ¶¶9-11, the Commission found that the names of loan recipients, loan amounts, and current repayment status could be maintained separately from financial information, and made available for public inspection.
25. It is found that, although the respondent’s denial of the complainants’ request was based upon the good faith belief that disclosing the records would discourage small business owners from confiding in the respondent, such a belief does not constitute an exemption from disclosure under the FOI Act.
26. It is therefore concluded that the record requested by the complainants, consisting of a list of businesses applying for or receiving loans in the past year, the addresses of those businesses, and their owners, is not “commercial or financial information” within the meaning of §1-210(b)(5)(B), G.S.
27. It is concluded that the respondents violated §1-210, G.S., by denying the complainants request for the list described in paragraph 11, 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, or an opportunity to inspect, the list described in paragraph 11 of the findings, above.
Approved by Order of the Freedom of Information Commission at its regular meeting of July 24, 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:
John Mason and The Hartford Courant
285 Broad Street
Hartford, CT 06115
Hartford Economic Development
Commission, City of Hartford
c/o Ivan A. Ramos, Esq.
Office of Corporation Counsel
550 Main Street
Hartford, CT 06103
Petrea A. Jones
Acting Clerk of the Commission