FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Marc Levy and the New Britain

Herald,

 
  Complainants  
  against   Docket #FIC 2008-313

Director, Parks and Recreation

Department, City of New Britain;

and Parks and Recreation

Department, City of New Britain,

 
  Respondents January 29, 2009
       

 

The above-captioned matter was scheduled to be heard on August 20, 2008, at which time the respondents appeared, however, the complainants did not.  A report of hearing officer was issued on August 21, 2008 dismissing the complaint for failure to prosecute; however, the Commission, at its regular meeting of September 10, 2008, voted to reopen the above-captioned matter and ordered that such matter be rescheduled for hearing.

 

The above-captioned matter was heard as a contested case on October 24, 2008, at which time the complainants and the respondents 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 respondents are public agencies within the meaning of 1-200(1), G.S.

 

2.      It is found that by letter dated April 3, 2008, the complainants made a request to the respondents for a copy of the results of environmental testing performed at the construction site of a neighborhood park.

 

3.      It is found that the respondents requested that an environmental test be conducted on city property known as the Willow Street Park (hereinafter “the park”), which test was conducted by CMG Environmental, Inc. (hereinafter “CMG”).  It is found that CMG provided the results of its testing to the respondents in a report captioned “Limited Subsurface Investigations” on or about March 28, 2008 (hereinafter “report”).

 

4.      It is found that the report described in paragraph 3, above, is the only record responsive to the complainants’ request.

 

5.      It is found that by letters dated April 7, and April 9, 2008 the respondents denied the complainants’ request stating that the report was exempt from disclosure because it was specifically requested in anticipation of the City of New Britain filing a claim against a number of potential parties and that the report was exempt pursuant to 1-210(b)(4), G.S. 

 

6.      It is found, however, that the respondents disclosed the report on April 16, 2008, by placing a copy of the report in the complainants’ press box located in city hall and further, e-mailed a press release to the complainants.

 

7.      By letter dated April 29, 2008 and filed on May 5, 2008, the complainants appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying their records request and then releasing the report to a competing newspaper.

 

8.      Section 1-200(5), G.S., provides in relevant part that:

 

“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.

 

9.      Section 1-210(a), G.S., provides in relevant part that:

 

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 . . . receive a copy of such records in accordance with section 1-212. 

 

10.   Section 1-212(a), G.S., provides in relevant part that “any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record . . . .”

 

11.   It is found that the report is a public record within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

12.   Section 1-210(b)(4), G.S., provides that nothing in the FOI Act shall be construed to require disclosure of:

 

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.

 

13.   Section 1-200, G.S., provides in relevant part that:

 

(9)  “Pending litigation” means . . . the agency's consideration of action to enforce or implement legal relief or a legal right.

 

14.   It is found that the city of New Britain purchased property from the Department of Housing and Urban Development (hereinafter “HUD”), which property HUD represented was free of contamination.  It is found, however, that after the city began its construction of the park, old construction debris along with pooled water was uncovered on the property giving rise to concerns that the property may be contaminated. 

 

15.   It is found that the respondents had the property tested in anticipation of a lawsuit against HUD in which the city intended to claim that HUD was liable for the contamination or for selling the contaminated property to the city.  It is found that the respondents informed HUD of its intention to sue.

 

16.   It is found that the respondents had “pending litigation” against HUD within the meaning of 1-200(9)(C), G.S., at the time of the complainants’ request.

 

17.   It is found, however, that the respondents engaged in negotiation discussions with HUD representatives on April 16, 2008 and that the respondents used the test results contained in the report during those discussions.   It is also found that the city was able to settle all its claims against HUD during those discussions and as already found, above, the respondents disclosed the report on April 16, 2008, promptly after the conclusion of the discussions.

 

18.   It is found that the report was used to develop the respondents’ strategy and as leverage during its negotiations with HUD.

 

19.   It is found, therefore, that the report pertained to “strategy” and “negotiations” with respect to pending claims or pending litigation to which the respondents were a party within the meaning of 1-210(b)(4), G.S., and that it was permissibly exempt from disclosure pursuant to such provisions at the time of the complainants’ request.  See City of Stamford et al. v. Freedom of Information Commission et al., 241 Conn. 310, (1997) [the report of an investigation of the propriety of several contracts and payments related to construction of a municipal transfer and recycling station pertained to strategy and negotiations with respect to pending claims or pending litigation within the meaning of 1-210(b)(4), G.S., because “the investigation was designed to determine whether municipal funds were improperly spent and, if so, to assess the prospects for recovery of those funds.”]

 

20.  It is therefore concluded that the respondents did not violate the disclosure provisions of 1-210(a) and 1-212(a), G.S., by failing to provide the complainants with a copy of the report at the time of their request.

 

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

 

1.  The complaint is hereby dismissed.

 

                       

Approved by Order of the Freedom of Information Commission at its regular meeting of January 29, 2009.

 

 

____________________________

S. Wilson

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:

 

Marc Levy and the New Britain Herald

1 Herald Square

New Britain, CT  06050

 

Director, Parks and Recreation

Department, City of New Britain;

and Parks and Recreation

Department, City of New Britain

c/o Joseph E. Skelly, Jr., Esq.

New Britain Corporation Counsel

27 West Main Street

New Britain, CT  06051

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-313FD/sw/2/2/2009