FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Paul Choiniere and the New London Day,

 
  Complainants  
  against   Docket #FIC 2006-413

First Selectman,

Town of Preston,

 
  Respondent August 8, 2007
       

 

The above-captioned matter was consolidated for hearing with Docket #FIC 2006-400, Paul Choiniere and the Day v. Norwich Hospital Subcommittee, Norwich Hospital Advisory Committee, Town of Preston; Docket #FIC 2006-403, Paul Choiniere and the Day v. Norwich Hospital Advisory Committee, Town of Preston; and Docket #FIC 2006-414, Robert Fromer v. Michael Sinko, Chairman, Hospital Advisory Committee, Town of Preston; Allyn Brown III, Roy Beauregard, Kent Borner, Robert Congdon, Sandy Ewing, Merrill Gerber, Gerald  Grabarek, Dan Kulesza, and Kristina Gregory, as members, Hospital Advisory Committee, Town of Preston; and Hospital Advisory Committee, Town of Preston. On September 29, 2006, the Rivers Alliance of Connecticut was granted status as an intervener in Docket #s FIC 2006-400, 2006-403, and 2006-413. All four consolidated matters were heard as contested cases on October 5, 2006, at which time the complainants and the respondent in the above captioned matter appeared and presented testimony, exhibits and argument on the complaint.

 

Subsequently, Reports of Hearing Officer were considered by the Commission for all four consolidated cases on February 28, 2007, at which time a motion to adopt the Hearing Officer’s Reports failed by virtue of a 2-2 vote. The Commissioners then voted unanimously to remand the matter to a staff member to draft alternative, unsigned reports.  Thereafter, Proposed Final Decisions on all four consolidated cases were considered by the Commission on July 25, 2007, at which time the Commission voted to remand the matters again to a staff member to draft alternative, unsigned reports. The Commission specifically directed staff to re-examine the respondents’ claims of exemption pursuant to 1-210(b)(7), G.S.

 

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)(A), G.S.

2.  It is found that by letter dated August 10, 2006, the complainants addressed a request to the respondent for “all information and documents being received by the Town of Preston resulting from environmental and any other investigations that have been conducted at the former Norwich State Hospital property since June 1, 2006 (the “requested records”).  

 

3.  By letter dated August 15, 2006, the respondent acknowledged the August 10, 2006 request and declined to disclose the requested records based upon the exemptions at 1-210(b)(1) and (7), G.S.

    

4.  By letter dated and filed with the Freedom of Information Commission (“Commission”) on August 17, 2006, the complainant appealed to the Commission, alleging that the respondent failed to provide the requested records.

 

5.  Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:

 

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. 

 

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. 

 

6. It is found that the Town of Preston had contracted on November 2, 2005 to acquire the property known as the Norwich State Hospital from the State Department of Public Works (“DPW”).  Pursuant to that agreement, the Town would be responsible for any and all liabilities, costs and expenses arising from the need to clean up or to remediate pollution on, at, beneath or emanating from the property.  (DPW had conducted a Phase I and Phase II environmental assessment of the property, which indicated the presence of “certain environmental conditions” on the property.) 

 

7.  It is also found that the Town also entered into a development agreement for the property with Utopia Studios Ltd. (“Utopia”).  Utopia hired Earth Tech, an environmental consulting firm, to conduct a Phase III environmental assessment of the property to determine the nature of pollution there, the methods needed to get it cleaned up and the extent of hazardous materials found in the vacant buildings on the hospital campus, including lead paints, mold and asbestos.   Earth Tech also committed to delivering, no later than September 21, 2006, the Phase III assessment to the Town, at no cost to the Town.  It is not apparent that the Town provided any consideration to Earth Tech for this commitment.

 

8.  It is found that the Town had its own environmental firm, GZA GeoEnvironmental, Inc. (“GZA”), and that Earth Tech representatives were eager to meet with GZA representatives to give them a progress report on Earth Techs Phase III environmental assessment at Earth Tech’s office in Concord, Massachusetts.  Earth Tech first contacted the Town on August 3, 2006, and a meeting was ultimately arranged on Tuesday, August 8, 2006 to take place the next day.  Although the meeting was originally conceived as a meeting between Earth Tech and GZA, by 1 p.m. on Tuesday, August 8, 2006, more than a quorum of the Norwich Hospital Subcommittee of the Norwich Hospital Advisory Committee (“subcommittee”) also wished to attend, because of the possibility that representatives of Utopia would attend.  Rather than delaying the meeting, a decision was made to post a notice for an emergency meeting.

 

9.  It is found that the subcommittee held a so-called emergency meeting at mid-day on August 9, 2006 with Earth Tech and GZA (see Docket #FIC 2006-400, Paul Choiniere and the Day v. Norwich Hospital Subcommittee, Norwich Hospital Advisory Committee, Town of Preston). 

 

10.  It is also found that a regular meeting of the Norwich Hospital Advisory Committee was held on Wednesday, August 9, 2006, and that the purpose of the meeting was for the subcommittee to brief the Norwich Hospital Advisory Committee as a whole concerning the content of the oral report that Earth Tech had given the subcommittee that afternoon. (See Docket #FIC 2006-403, Paul Choiniere and the Day v. Norwich Hospital Advisory Committee, Town of Preston.)

 

11.  It is further found that the respondent was a member of both the subcommittee and the Norwich Hospital Advisory Committee. As such, the respondent may have maintained on the date of the records request (August 10, 2006) maps and other records that identified areas of concern for contamination on the Norwich State Hospital property. These maps and other records would have been primarily records generated by the individuals evaluating environmental contamination of the property.  It is also found that no “other investigations” within the scope of the request existed.

 

12.  It is concluded that any requested records maintained by the respondent at the time of the request, were “public records” within the meaning of 1-200(5) and 1-210(a), G.S.  

 

13.  The respondent claims that any such records were exempt from disclosure pursuant to 1-210(b)(7), G.S.

 

14.  It is found that the respondent failed to prove that any of the requested records maintained by the respondent at the time of the request constituted the contents of “real estate appraisals” or “engineering or feasibility estimates and evaluations” made for an agency relative to the acquisition of property, within the meaning of 1-210(b)(7), G.S.  (See Docket #FIC 2006-414, Robert Fromer v. Michael Sinko, Chairman, Hospital Advisory Committee, Town of Preston; Allyn Brown III, Roy Beauregard, Kent Borner, Robert Congdon, Sandy Ewing, Merrill Gerber, Gerald  Grabarek, Dan Kulesza, and Kristina Gregory, as members, Hospital Advisory Committee, Town of Preston; and Hospital Advisory Committee, Town of Preston).

 

15.  It is therefore concluded that any requested records maintained by the respondent at the time of the request were not exempt from disclosure pursuant to 1-210(b)(7), G.S.

 

16.  The respondent additionally claims that any such records were exempt from disclosure pursuant to the provisions of 1-210(b)(1), G.S. 

 

17.  Section 1-210(b)(1), G.S., permits the nondisclosure 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.” 

 

18.  It is found that the respondent failed to prove that any requested records maintained by the respondent at the time of the request constituted “preliminary drafts or notes” within the meaning of 1-210(b)(1), G.S.; moreover, the respondent failed to prove that he had determined that the public interest in withholding such records clearly outweighed the public interest in disclosure, as required for the application of the 1-210(b)(1), G.S., exemption. 

 

19.  It is therefore concluded that any records maintained by the respondent on the date of the records request were not exempt from disclosure pursuant to 1-210(b)(1), G.S.

 

20.  Accordingly, it is concluded that the requested records were not exempt from mandatory disclosure, and the respondent violated the requirements of 1-210(a) and 1-212, G.S., when he failed to provide them to the complainants. 

           

            The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

1.  If the respondent has not already done so, he shall provide the complainants with any requested records maintained by him on the date of the request and shall henceforth strictly comply with the provisions of 1-210(a) and 1-212(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 8, 2007.

 

________________________________

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:

 

Paul Choiniere and the New London Day  

c/o John Jay Pavano, Esq.

Faulkner & Boyce, P.C.

216 Broad Street

PO Box 391

New London, CT 06320

 

First Selectman,

Town of Preston  

c/o Henry J. Zaccardi, Esq.

Shipman & Goodwin

One Constitution Plaza

Hartford, CT 06103-1919

 

Rivers Alliance of Connecticut

c/o David Bingham

PO Box 1797

Litchfield, CT 06759

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-413FD/paj/8/14/2007