FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
John J. Lepore,
  Complainant  
  against Docket #FIC 2003-319
City Attorney, City of Middletown,  
  Respondent  May 26, 2004
       

 

The above-captioned matter was heard as a contested case on March 23, 2004, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.  Pursuant to 1-21j-31, Regulations of Connecticut State Agencies, the hearing officer granted Connecticut Light and Power (hereinafter “CL&P”) intervener status.  CL&P was permitted to present evidence, 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 by letters dated July 3 and August 6, 2003, the complainant requested that the respondent provide him with a copy of the settlement agreement and all other correspondence pertaining to the city of Middletown’s (“city”) recent settlement with CL&P relating to street-lighting overcharges and related issues (hereinafter “requested records”).

 

3.  It is found that by letter dated July 18, 2003, the respondent acknowledged receipt of the complainant’s July 3, 2003 request and informed the complainant that “as you had previously been verbally advised…the …[requested records] are the subject of a non-disclosure provision in the agreement negotiated between the City and CL&P in settlement of all outstanding issues between the City and CL&P.  Therefore, the City is unable to comply with your request for these documents.”

 

4.  Having failed to receive the requested records from the respondent, the complainant, by letter dated and filed on September 5, 2003, appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying him a copy of the requested records.  

 

5.  Section 1-200(5), G.S., provides:

 

 “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, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

 

6.  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 … (3) receive a copy of such records in accordance with section 1-212.  Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.  [Emphasis added.]

7.  It is found that the respondent maintains records responsive to the complainant’s request, and such records are public records, within the meaning of 1-200(5) and 1-210(a), G.S.  Specifically, the respondent maintains (a) a Release and Settlement Agreement between CL&P and the city (“settlement agreement”), (b) a check reflecting the settlement payment CL&P made to the city (“check”), and (c) an itemized summary calculation of the city’s refund.

8.  The respondent’s position is that the city entered into a settlement agreement with CL&P (“settlement agreement”) and that such agreement contains a nondisclosure provision that prevents the respondent from disclosing the agreement and all related records.

9.  It is found that the settlement agreement provides, in relevant part:

It is … understood that the parties shall not disclose the terms of this Mutual Release, including but not limited to the financial reconciliation of the Account, to any third party, unless such disclosure is required by law or compelled by any court or regulatory authority having jurisdiction over such matter…

10.  This Commission takes administrative notice that it has previously ruled when addressing the disclosure of settlement agreements entered into by public agencies, that such agencies 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 e.g. contested case #s FIC 2001-530, David Critchell and Waterbury Republican-American v. Corporation Counsel, City of Torrington (Final Decision dated June 26, 2002), and FIC 94-063, Carol L. Panke v. Bloomfield Town Manager (Final Decision dated August 10, 1994).

11.  In addition, in this case, the confidentiality clause contained in the settlement agreement specifically recognizes that the parties may be required to disclose such agreement if “required by law or compelled by any court or regulatory authority….”

12.  At the hearing in this matter, CL&P indicated that it does not object to the disclosure of the settlement agreement and the check, however, it objects to the disclosure of the itemized summary calculation of the city’s refund.

 13.  Following the close of the hearing in this matter CL&P submitted the itemized summary calculation of the city’s refund to the Commission for an in camera inspection.  The itemized summary calculation of the city’s refund has been marked for identification purposes as IC #2003-319-1.

14.  CL&P contends that IC #2003-319-1 is exempt from disclosure pursuant to 1-210(b)(4) and (5), G.S.

15.  Sections 1-210(b)(4) and (5), G.S., provide that:

Nothing in the Freedom of Information Act shall be construed to require disclosure of:

 

 (4)  Records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled;

 

(5)  (A) Trade 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 their disclosure or use, and (ii) are the subject of efforts that are reasonable under the circumstances to maintain secrecy; and

 

 (B) commercial or financial information given in  

  confidence, not required by statute;

 

16.  With respect to the claim of exemption pursuant to 1-210(b)(4), G.S., such exemption permits a “public agency” that is a “party” to a pending claim or pending litigation to not disclose records pertaining to strategy and negotiations, until such claim or litigation has been finally adjudicated or otherwise settled.  It is found that CL&P cannot claim the 1-210(b)(4), G.S., exemption because CL&P is not a “public agency” that is a “party” to a pending claim or pending litigation.  It is found that CL&P is the plaintiff in pending litigation against the Connecticut Department of Public Utility Control, Office of Consumer Counsel (see Petition for Administrative Appeal dated January 30, 2004, Return Date March 9, 2004, CL&P v. DPUC, Office of Consumer Counsel).  It is also found that neither the respondent nor the city is a “party” to that pending litigation, within the meaning of 1-210(b)(4), G.S.[1]

 

17.  It is therefore concluded that IC #2003-319-1 is not exempt from public disclosure pursuant to 1-210(b)(4), G.S.

18.  With respect to the claim of exemption pursuant to 1-210(b)(5)(A), G.S., it is found that IC #2003-319-1 contains an itemized summary calculation of the city’s refund, and not formulas, methods or cost data and no evidence has been found to support the exemption. 

19.  With respect to the claim of exemption pursuant to 1-210(b)(5)(B), G.S., it is found that the respondent and CL&P failed to prove that IC #2003-319-1 was “given in confidence” at the time it was provided to the respondent. 

20.  It is therefore concluded that IC #2003-319-1 is not exempt from public disclosure pursuant to 1-210(b)(5), G.S., and therefore, the respondent violated 1-210(a), G.S., when she failed to disclose IC #2003-319-1 to the complainant.

21.  It is finally concluded that the records described in paragraphs 7 and 12, above, should have been promptly turned over to the complainant and the respondent’s failure to do so constituted a violation of 1-210(a), G.S.

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 records described in paragraph 7, of the findings, above.

 

 

            Approved by Order of the Freedom of Information Commission at its regular meeting of May 26, 2004.

 

 

___________________________________

Dolores E. Tarnowski

Clerk of the Commission


Docket No. FIC 2003-319

 

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 J. Lepore

67 Sandra Drive

Manchester, CT  06040

 

City Attorney, City Middletown

c/o Adrienne R. DeLucca, Esq.

Deputy City Attorney

245 DeKoven Dr., PO Box 1300

Middletown, CT   06457

 

THE INTERVENER TO THIS CONTESTED CASE IS:

 

Connecticut Light and Power

c/o Vincent P. Pace, Esq.

Northeast Utilities Legal Dept.

PO Box 270

Hartford, CT  06141-0270

 

 

 

___________________________________

Dolores E. Tarnowski

Clerk of the Commission

 

FIC/2003-319/FD/cm/beh/det/06/04/2004

 

 



[1] See Petition for Administrative Appeal dated January 30, 2004, Return Date March 9, 2004, CL&P v. DPUC, Office of Consumer Counsel, p.3, paragraph 7, “The Office of the Attorney General, the Connecticut Industrial Energy Consumers, the Connecticut Conference of Municipalities, Environment Northeast, Woodlands Coalition For Responsible Energy Inc, Wheelabrator Lisbon, Inc. and AARP were granted intervenor status in the 2003 Rate Case and, on information and belief, maintained that status at all times relevant to this appeal.  CL&P has not named these entities as parties to this appeal, but has served notice of this appeal on them pursuant to Conn. Gen. Stat. 4-183(c)(1).”