OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
|In the Matter of a Complaint by||FINAL DECISION|
|against||Docket #FIC 2002-082|
|First Selectman, Town of Simsbury,|
|Respondents||October 9, 2002|
The above-captioned matter was heard as a contested case on May 15, 2002, 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.
2. It is found that on or about February 25, 2002, the complainant made a request to the respondent for a copy of the “Organizational and Staffing Study of Town Employees” (hereinafter “the study”).
3. It is found that the respondent denied the complainant’s request by initially stating that the study was not available but subsequently claimed that it was a draft and exempt from disclosure under the Freedom of Information (“FOI”) Act.
4. By letter dated February 26, 2002 and filed on February 27, 2002, the complainant appealed to this Commission alleging that the respondent violated the FOI Act by denying her request and requested that the maximum civil penalty be imposed against the respondent.
5. Section 1-210(a), G.S., provides in relevant part that:
[e]xcept 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.
6. Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record . . . .”
7. It is found that the study is a public record within the meaning of §1-210(a), G.S.
8. The respondent contends that the study is a “preliminary draft or note” within the meaning of §§1-210(b)(1) and 1-210 (e)(1), G.S., and is exempt from mandatory disclosure.
9. Section 1-210(b)(1), G.S., provides in relevant part that nothing in the FOI Act shall be construed to require disclosure of “preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure . . . .”
10. In Shew v. Freedom of Information Commission, the Supreme Court ruled that “the concept of preliminary [drafts or notes], as opposed to final [drafts or notes], should not depend upon . . . whether the actual documents are subject to further alteration . . .” but rather “[p]reliminary drafts or notes reflect that aspect of the agency’s function that precede formal and informed decision making . . . . It is records of this preliminary, deliberative and predecisional process that . . . the exemption was meant to encompass.” Shew v. Freedom of Information Commission, 245 Conn. 149, 165 (1998).
11. Section 1-210(e)(1), G.S., however, provides in relevant part that notwithstanding the provisions of §1-210(b)(1), G.S., disclosure shall be required of:
[i]nteragency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency.
12. It is found that the respondent must recommend a budget to the board of finance of the town of Simsbury every fiscal year and that for the 2002 fiscal year, he was required to submit a budget recommendation that included a change in spending and staffing levels.
13. It is found that during the latter portion of the year of 2001, the respondent began the process of formulating his budget recommendation and hired a consultant to conduct a study on the organization and staffing levels of the town.
14. It is found that the respondent received the first version of the study on January 1, 2002 and it is that version of the study that the complainant seeks (hereinafter “January study”).
15. It is found that the January study contains advice, opinions and recommendations with respect to prioritizing and evaluating the town’s staffing needs and employment levels.
16. It is found that the January study was reviewed by the town’s human resources director and finance director, and each provided the respondent with their input regarding the budget and their critique of the study.
17. It is found that the respondent met with the consultant to discuss the study and the consultant provided a revised version of the study in April 2002.
18. It is found however that the respondent provided his recommendation to the board of finance in February 2002 and the board of finance voted on the budget during that same month.
19. It is found that the January study, as submitted to the respondent, was intended to provide the respondent with information and suggestions to help him formulate his budget recommendation.
20. It is found that the January study reflects that aspect of the respondent’s recommendation process that preceded formal and informed decision-making.
21. It is therefore found that the January study is a preliminary draft or note within the meaning of §1-210(b)(1), G.S.
22. It is found that the respondent determined that the public interest in withholding the January study clearly outweighed the public’s interest in disclosure.
23. The Commission is compelled to find, in light of the Shew decision, above, at p. 166, that the consultant, although not on the town payroll, served as a member of the respondent’s staff.
24. It is therefore found that the January study constitutes an “intra-agency . . . recommendation or . . . report comprising part of the process by which governmental decisions and policies are formulated . . .” within the meaning of §1-210(e)(1), G.S.
25. It is also found that the respondent used the January study to formulate the budget recommendation he presented to the board of finance in February 2002. Consequently, it is further found that, at the time of the respondent’s submission of the recommended budget, the January study had already become part of the respondent’s and the town’s formal and informed decision making process.
26. It is therefore concluded that the January study is not exempt from mandatory disclosure pursuant to §§1-210(b)(1) and 1-210(e)(1), G.S.
27. It is further concluded that the respondent violated §1-210(a) and 1-212(a), G.S., by denying the complainant’s request for copies of the January study.
28. Notwithstanding the conclusion in paragraphs 26 and 27, above, the complainant’s request for the imposition of a civil penalty is denied.
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 complainant with a copy of the January study as described in paragraph 14 of the findings, above, free of charge.
Approved by Order of the Freedom of Information Commission at its regular meeting of October 9, 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:
26 Whitcomb Drive
Simsbury, CT 06070
Town of Simsbury
c/o Robert M. DeCrescenzo, Esq.
Updike, Kelly & Spellacy, PC
One State Street, PO Box 231277
Hartford, CT 06123-1277
Petrea A. Jones
Acting Clerk of the Commission