OF THE STATE OF CONNECTICUT
|In the Matter of a Complaint by||FINAL DECISION|
|Rick Green and The Hartford Courant,|
|against||Docket #FIC 2002-061|
|Connecticut Lottery Corporation,|
|Respondent||August 14, 2002|
The above-captioned matter was heard as a contested case on April 15, 2002, at which time the complainants and the respondent appeared and presented testimony, exhibits and argument on the complaint. The parties were requested to file simultaneous briefs, and both parties submitted briefs of very high quality.
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 January 18, 2002, the complainants requested that the respondent provide them with copies of: “the [respondent’s] marketing plan, the [respondent’s] media plan, focus group research conducted for or by the [respondent], and customer analysis.”
3. By letter dated February 5, 2002, the respondent provided various records, including a communications plan (with certain redactions, which are not herein at issue, made pursuant to §12-810, G.S.), annual financial reports for various years, the general fund contribution schedule for many years, and a television plan. However, the respondent also declined to provide copies of focus group research and customer analysis, claiming that such information was a “compilation of customer data” and therefore constituted a trade secret, which is exempt from disclosure pursuant to §1-210(5)(A), G.S.
4. By letter dated February 11, 2002, and filed with the Commission on February 14, 2002, the complainants appealed to the Commission alleging that the respondent violated the Freedom of Information Act by failing to provide “copies of all focus group research and customer analysis compiled by the [respondent]”.
5. Section 1-210(5)(A), G.S. exempts from disclosure:
(t)rade secrets, which for purposes of the Freedom of Information Act, are defined as information, including formulas, patterns, compilations, programs, devices, methods, techniques, processes, drawings, cost data, or customer lists that (i) derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) are the subject of efforts that are reasonable under the circumstances to maintain secrecy.
6. Based upon the request of the hearing officer, the respondent submitted five records (“the records at issue” or sometimes “records”) for an in camera review which has now been performed. As indicated on the index, these records are entitled: 1) Sales Analysis Prepared by Oberthur Gaming Technologies-2000; 2) Connecticut Lottery Benchmark Study, February 1997, Kopel Research Group; 3) Connecticut Lottery Benchmark Study, Fall 1998, Kopel Research Group; 4) Connecticut Lottery Separation Study, December 1999, Angus Reid Group; and 5) Connecticut Lottery Separation Study, January 2001, Angus Reid Group.
7. The respondent has argued ably that the records at issue are exempt as a trade secret because they “would be of value to the [respondent’s] competitors in the gaming and entertainment industry…the two largest casinos in the western hemisphere [which are] within Connecticut”. It is found, however, that while the records at issue contain occasional analysis of participation, spending and preferred games at the casinos located in Connecticut, the casinos in Connecticut and their competitive position with reference to the respondent and its gaming products are not the focus of, and indeed occupy a very minor place in, the records at issue.
8. It is also found that the respondent has maintained the records at issue in a locked file drawer and has disclosed the records at issue to approximately only six persons in its own marketing division and one additional person at the respondent’s advertising agency.
9. Finally, it is found that, while other states have somewhat different statutes and case law, substantially similar information has been made available by many other states to the complainants as a result of their telephonic requests, and that these other states either also have casinos in their own jurisdiction or have casinos nearby.
10. It is concluded that, while the statutory definition of “trade secret” does not use the term “competitor”, §1-210(5)(A), G.S., does require in order to qualify as a “trade secret” that a compilation have “independent economic value…from not being generally known to…other persons who can obtain economic value from its disclosure” (emphasis added).
11. It is further concluded that the records at issue only have economic value to persons conducting lotteries in competition with the respondent, that by law there are no other persons beside the respondent who may lawfully conduct lotteries within the jurisdiction of Connecticut, and therefore that the records at issue have no “independent economic value…from not being generally known to…other persons who can obtain economic value from [their] disclosure”.
12. It is also concluded that the records at issue have been “the subject of efforts that are reasonable under the circumstances to maintain [their] secrecy”.
13. It is finally, therefore, concluded that the respondent violated §1-210, G.S., by failing to provide copies of the records at issue to the complainants.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent shall provide the complainants with copies of the records at issue forthwith.
Approved by Order of the Freedom of Information Commission at its regular meeting of August 14, 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:
Connecticut Lottery Corporation
c/o Richard L. Street, Esq.
Carmody & Torrance
50 Leavenworth Street
PO Box 1110
Waterbury, CT 06721-1110
Petrea A. Jones
Acting Clerk of the Commission