OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by
|Tel Comm Technologies, Inc.,||
|Docket #FIC 2004-098|
Department of Public Facilities,
City of Bridgeport,
|Respondent||August 25, 2004|
The above-captioned matter was heard as a contested case on July 8, 2004, 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. By letter received and filed February 24, 2004, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by not complying with its request for public records.
3. It is found that by letter dated January 26, 2004 the complainant requested copies of “any and all documents showing who submitted to the payphone RFP along with a copy of all submissions” (the “proposals”).
4. It is found that the respondent maintains the requested proposals, but did not provide copies of them until June 16, 2004, although it waived the cost of copying the approximately 400 pages.
5. The respondent maintains that it believed that the records were exempt from disclosure until June 10, 2004, the date on which it abandoned the request for proposal process that had generated the proposals requested by the complainant.
6. Specifically, the respondent maintains that the records were exempt from disclosure pursuant to §§1-210(b)(5)(B) and (7), G.S.
7. 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.
8. Section 1-210(a), G.S., 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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212.
9. It is concluded that the requested proposals are public records within the meaning of §§1-200(5) and 1-210(a), G.S.
10. Section 1-210(b)(5)(B), G.S. provides that disclosure is not required of “commercial or financial information given in confidence, not required by statute ….”
11. Section 1-210(b)(7), G.S., provides that disclosure is not required of:
The contents of real estate appraisals, engineering or feasibility estimates and evaluations made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts, until such time as all of the property has been acquired or all proceedings or transactions have been terminated or abandoned, provided the law of eminent domain shall not be affected by this provision
12. In support of its claim of exemption, the respondent cites docket #FIC 95-147, George L. Holmes, Jr. v. Fairfield First Selectman.
13. With respect to the respondent’s claim of exemption under §1-210(b)(7), the Commission concluded in Holmes v. Fairfield that proposals from entities interested in leasing the town's land for the purpose of constructing and operating an ice skating facility were simply bid proposals submitted in response to an invitation to bid from the respondent in the form of an RFP and consequently that the proposals did not fit within the meaning of the exemption contained in §1-19(b)(7), G.S. [now §1-210(b)(7)].
14. It is found that the proposals submitted to the respondent in this case were also bid proposals submitted in response to an invitation to bid from the respondent in the form of an RFP.
15. It is therefore concluded, consistent with Holmes v. Fairfield, above, that the requested proposals are not exempt from disclosure pursuant to §1-210(b)(7), G.S.
16. With respect to the respondent’s claim of exemption under §1-210(b)(5)(B), G.S., it is found that limited portions of the proposals contained some financial information submitted in confidence and not required by statute, such as bank account information.
17. It is therefore concluded that the limited portions of the proposals that contained financial information submitted in confidence and not required by statute are exempt from disclosure pursuant to §1-210(b)(5)(B), G.S.
18. It is additionally concluded, however, that the bulk of the records contained in the proposals are not exempt from disclosure.
19. It is concluded that the respondent violated §1-210(a), G.S., by delaying disclosure of the non-exempt portions of the proposals until nearly six months after they were requested.
20. The complainant requested that a civil penalty be imposed against the City of Bridgeport because of what the complainant characterizes as repeated delays of months in providing information similar to that requested in this complaint.
21. Specifically, it appears that the complainant seeks the imposition of a civil penalty against associate city attorney Melanie Howlett, who has either directly handled or provided advice with respect to the complainant’s requests for documents, and similar requests for documents in docket numbers FIC 2000-189, 2000-190, 190, 2000-193, 2000-194, 2000-195 (all consolidated), 2000-242, 2001-207, 2001-355, 2002-376, 2002-390, 2002-423, 2002-427 and 2002-525.
22. Section 1-206(b)(2), G.S., provides in relevant part:
… upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars….
23. It is found that attorney Howlett has handled some sixty-five requests for documents pertaining to pay telephones.
24. It is found that the records requests handled by attorney Howlett came from a variety of complainants, although most if not all of the complainants were ultimately represented by attorney Donal Collimore, who initially represented the complainant in this matter.
25. It is found that some but not all of the requests by attorney Collimore’s clients were directed to the respondent Bridgeport Department of Public Facilities.
26. The complainant maintains that the city of Bridgeport, as represented by attorney Howlett, has delayed providing documents until the Commission issues a notice of hearing and order to show cause.
27. It is found that the crux of the complainant’s evidence is that attorney Howlett herself has delayed providing documents. In some cases there have been delays of six months to one year in providing copies of records.
28. It is found, however, that attorney Howlett is not a respondent in this case, and that there is no other individual against whom the complainant has requested civil penalties.
29. Consequently, it is concluded that no civil penalty should be imposed against attorney Howlett.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent shall henceforth comply with the promptness provisions of §1-210(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of August 25, 2004.
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:
Tel Comm Technologies, Inc.
c/o Benjamin Proto, Esq.
2090 Cutspring Road
Stratford, CT 06614
Department of Public Facilities,
City of Bridgeport
c/o Melanie J. Howlett, Esq.
Associate City Attorney
999 Broad Street
Bridgeport, CT 06604
Petrea A. Jones
Acting Clerk of the Commission