FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Jonathan Pelto,  
  Complainant  
  against   Docket #FIC 2008-341

State of Connecticut, University of Connecticut,

Office of Audit,

Compliance and Ethics,

 
  Respondent May 13, 2009
       

 

The above-captioned matter was heard as a contested case on October 6, 2008, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  A report of Hearing Officer was issued on April 1, 2009.  The Commission considered such report at its regular meeting of April 22, 2009 and voted against adoption of such report.  At such time, the Commission voted to remand the matter to the staff to draft an alternative, proposed final decision. 

 

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 email dated May 13, 2008 and filed with the Commission on May 14, 2008, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (hereinafter “FOI”) Act by denying his request for electronic copies of the databases described in paragraph 3, below, and by misrepresenting which databases the respondent maintains.

 

3.  It is found that, by letter dated April 15, 2008, the complainant requested from the respondent electronic copies of the following databases:

 

a.       “Databases maintained for paying University Faculty and Staff”;

b.      “Databases of retirees from the University (including the database maintained by the Office of Institutional Research)”;

c.       “Database maintained by the Office of University Events”;

d.      “Database used to mail UConn’s quarterly magazine, UConn Traditions”;

e.       “Databases maintained by Jorgenson Auditorium including subscribers, individual event ticket buyers and prospects”;

f.       “Database maintained by the Center for Continuing Studies to inform people about its programs and course offerings”;

g.      “Database maintained by University Athletics including season ticket and individual game purchasers”;

h.      “Database of Donors and Friends of the University Library”;

i.        “Database of Parents”;

j.        “Database of Alumni”; and

k.      “Database of Donors and Friends maintained by the UConn Foundation.”

 

The complainant limited his request to the “first name, last name, addresses, phone number and email addresses” of the persons listed in such databases.

 

4.  It is found that, by letter dated May 13, 2008, the respondent informed the complainant that “[i]t has taken [the respondent’s] office some time to locate the numerous databases [the complainant] requested and/or to determine that such databases do not in fact exist.”  The respondent also informed the complainant which databases existed and the extent to which the respondent believed “such databases are protected from the disclosure requirements of the Connecticut Freedom of Information statutes.”  With respect to such databases, the respondent’s letter stated as follows:

 

a.       “Databases maintained for paying University Faculty and Staff are exempted from the disclosure requirements of the Connecticut Freedom of Information as such database contains extensive information protected from such disclosure requirements under Conn. Gen. Stat. 1-210(b)(2);”

b.      “The Office of Institutional Research does not maintain a database of retirees.  As no such record exists, no record can be provided from the Office of Institutional Research.  Databases of retirees from the University maintained by other office(s) at the University are exempted from the disclosure requirement of the Connecticut Freedom of Information as such databases contains (sic) extensive Information protected from such disclosure requirements under Conn. Gen. Stat. 1-210(b)(2);”

c.       “The Office of University Events does not maintain a database.  As no such record exists, no record can be provided;”

d.      “The University does not maintain a database related to the UConn Traditions publication.  As no such record exists, no record can be provided;”

e.       “The databases you have requested that are maintained by Jorgenson Auditorium are exempted from the disclosure requirements of the Connecticut Freedom of Information under Conn. Gen. Stat 1-210(b)(5) as a customer list;”

f.       “The Center for Continuing Studies does maintain a database of individuals to inform them about its upcoming programs and course offerings.  However, such database is exempted from the disclosure requirements of the Connecticut Freedom of Information under Conn. Gen. Stat. 1-210(b)(5) as a customer list, and/or Conn. Gen. Stat. 1-210(b)(11) and 1-210(b)(17) as contact and/or other information related to students;”

g.      “The database you have requested that is maintained by the Division of Athletics is exempted from the disclosure requirements of the Connecticut Freedom of Information under Conn. Gen. Stat. 1-210(b)(5) as a customer list;”

h.      “The database of Donors and Friends of the University Library you have requested is exempted from the disclosure requirements of the Connecticut Freedom of Information under Conn. Gen. Stat. 1-210(b)(5) as a customer list;”

i.        “The University does not maintain a database of Parents. As no such record exists, no record can be provided;” and

j.        “The University does not maintain a database of Alumni.  As no such record exists, no record can be provided.”

 

Such letter did not respond to the complainant’s request for a database of Donors and Friends maintained by the UConn Foundation.

 

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

 

7.  Section 1-212(a), G.S., states in relevant part:

 

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

 

8.  It is found that to the extent the records described in paragraph 3, above, exist and are maintained by the respondent, such records are public records within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

9.  Prior to the hearing on this matter, the respondent offered to provide the complainant with the records described in paragraphs 3a. and 3b., above.

 

10.  Prior to the hearing on this matter, the complainant withdrew his requests for the records described in paragraphs 3i. and 3j., above.  Therefore, the only records at issue that will be addressed herein are the records described in paragraphs 3c. through 3h., and 3k., above (hereinafter the “requested records”).  Additionally, the complainant limited his request for such databases to the names and addresses of the persons contained therein.

 

11.  It is found that no database exists in response to the complainant’s request as described in paragraph 3c., above.

 

12.  Accordingly, it is concluded that the respondent did not violate 1-210(a), G.S., with respect to the request described in paragraph 3c., above.

 

13.  With respect to the records described in paragraph 3d., above, it is found that the respondent does not maintain such record.  However, the respondent also stated that the UConn Foundation does keep and maintain such a database.

 

14.  At the hearing on this matter, the respondent further contended that the UConn Foundation is not a public agency and its records are not public records under the FOI Act, even when in the custody of the respondent, pursuant to 4-37e(2) and 4-37f(9), G.S.

 

15.  At the hearing on this matter, the complainant submitted evidence containing excerpts of testimony from the 1989 hearings of the Government Administration and Elections Committee of the Connecticut General Assembly, to support the contention that the intent of the legislature in enacting the language in 4-37e(2) and 4-37f(9), G.S., was not to exclude the records of the UConn Foundation from public access provided under the FOI Act.

 

16.  Sections 4-37e(2) and 4-37f(9), G.S., provide in relevant part, respectively:

 

(2) "Foundation" means an organization, fund or any other legal entity which is (A) exempt from taxation pursuant to Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and (B) established for the principal purpose of receiving or using private funds for charitable, scientific, cultural, educational or related purposes that support or improve a state agency.  Such an organization, fund or other legal entity shall not be deemed to be a state agency or a public agency, as defined in section 1-200.

 

(9) There shall be a written agreement between the state agency and the foundation which (A) addresses any use by the foundation of the agency's facilities and resources including, but not limited to, office space, storage space, office furniture and equipment, utilities, photocopying services, computer systems and the maintenance by the state agency of the books and records of the foundation, provided any such books and records maintained by the state agency shall not be deemed to be public records and shall not be subject to disclosure pursuant to the provisions of section 1-210.

 

            17.  It is concluded that the UConn Foundation is a “foundation” within the meaning of 4-37e(2), G.S.

 

            18.  Consequently, it is concluded that the UConn Foundation is not a public agency within the meaning of 1-200, G.S.

 

            19.  It is found that the database described in paragraph 3d., above, is kept and maintained by the UConn Foundation.  It is also found that when the magazine is ready for publication, a UConn employee picks up a Compact Disc (“CD”) containing a copy of such database, puts it in an envelope and delivers the CD to a private printing entity for printing of the UConn Magazine.  It is further found that recipients of the UConn Magazine are instructed in the publication to “[s]end address changes to The University of Connecticut Foundation, Records Department.”

 

20.  It is therefore concluded that 4-37f(9), G.S., by its plain language applies to the records of the UConn Foundation, whether such records are kept or maintained by the foundation or by the respondent public agency, and prohibits disclosure of such records under 1-210, G.S.

 

21.  It is found that the complainant’s request for records described in paragraph 3k., above, also relate to records that are kept or maintained by the UConn Foundation.

 

22.  Consequently, it is concluded that the records described in paragraphs 3d. and 3k., above, are not subject to mandatory disclosure under the FOI Act.

 

23.  It is therefore concluded that the respondent did not violate the FOI Act, as alleged in the complaint, with respect to the records described in paragraphs 3d. and 3k., above.

 

24.  With respect to the records described in paragraphs 3f., above, the respondent contended at the hearing and in its post-hearing brief that significant portions of such database are protected under the Family Educational Rights and Privacy Act (hereinafter “FERPA”) since they contain considerable personal information about students that are taking courses through UConn’s Center for Continuing Studies (hereinafter “center”).  The respondent specifically contended that such database contains personal information including social security numbers and credit card information of students participating in the center’s credit and noncredit programs, as well as information about persons making general inquiries to the center.

 

25.  Section 1-210(b)(17), G.S., permits the nondisclosure of:

 

[E]ducational records which are not subject to disclosure under the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g.

 

26.  “Education records” are defined at 20 U.S.C. 1232g(a)(4)(A) as those records, files, documents, and other materials which (i) contain information directly related to a student and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.

 

27.  This Commission has concluded that 20 U.S.C. 1232g prohibits public schools that receive federal funding from disclosing information concerning a student that would personally identify that student, without the appropriate consent.  See contested case docket #FIC 1999-306, Brenda Ivory v. Vice-Principal, Griswold High School, Griswold Public Schools; and Griswold Public Schools (Final Decision dated January 26, 2000).

 

28.  It is concluded that portions of the records described in paragraph 3f., above, pertaining to persons who are not students, but who made inquiries to the center about their programs, do not constitute “education records” as defined at 20 U.S.C. 1232g(a)(4)(A).  Consequently, it is concluded that such portions of the records are not exempt under FERPA.

 

29.  It is also concluded that to the extent portions of the records described in paragraph 3f., above, directly relate to students of the center, such records constitute “education records” as defined at 20 U.S.C. 1232g(a)(4)(A).

 

30.  It is therefore concluded that to the extent information contained in the database described in paragraph 3f., above, constitutes “education records” as defined at 20 U.S.C. 1232g(a)(4)(A), such information is exempt from mandatory disclosure under FERPA.

 

31.  It is therefore concluded that the respondent did not violate the FOI Act, as alleged in the complaint, by withholding “education records” records exempt under FERPA and contained in the database described in paragraph 3f., above.

 

32.  With respect to the databases described in paragraphs 3e. through 3h., above, the respondent claimed that such records are customer lists and therefore exempt from mandatory disclosure as trade secrets, pursuant to 1-210(b)(5)(A), G.S.  The respondent also contended that such customer lists “derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons” like the complainant who “can obtain economic value from” the disclosure or use of the respondent’s customer list.  Additionally, the respondent contended that it has taken reasonable efforts under the circumstances to maintain the secrecy of databases described in paragraphs 3e. through 3h., above.

 

33.  During oral argument at the April 22, 2009 Commission meeting, the respondent stated that in order to prevail on its trade secrets claim, it must prove that the databases at issue herein are customer lists within the meaning of 1-210(b)(5)(A), G.S.

 

34.  The complainant contended that the Commission must first determine whether the respondent as a public agency can claim such databases are exempt as customer lists within the meaning of 1-210(b)(5)(A), G.S.  The complainant also contended that such a claim by the respondent is an unreasonable and inappropriate interpretation of the statute and should not be permitted.  The complainant further contended that if the respondent is permitted to prevail on such claim, it would mean that “virtually any list of people who are ‘deemed’ customers or potential customers by a public entity could be kept private.”  The complainant additionally contended that the Commission must determine whether it is even appropriate for the respondent to raise the complainant’s private business dealings as a motive for wanting the requested records.

 

            35.  Section 1-210(b)(5)(A), G.S., exempts from disclosure:

 

“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 its disclosure or use, and (ii) are the subject of efforts that are reasonable under the circumstances to maintain secrecy…”

 

36.  With respect to whether a public agency can claim the trade secrets exemption, the Supreme Court has stated that in order “to qualify for an exemption within the meaning of 1-210(b)(5)(A), the requested records must constitute a trade secret within the meaning of the Act.”  See Director, Department of Information Technology v. Freedom of Information Commission, 274 Conn. 179, 194 (Conn. 2005) (affirming the trial court’s decision that the plaintiff, Town of Greenwich, failed to meet its burden of proof to show that the requested GIS data were exempt as trade secrets within the meaning of 1-210(b)(5)(A), G.S.).  In addition, the Commission takes administrative notice of the final decision in contested case Rick Green and The Hartford Courant v. Connecticut Lottery Corporation, Docket #FIC 2002-061 (holding that the Connecticut Lottery Corporation’s claim of trade secret exemption did not apply on other grounds).

 

            37.  The Commission has not previously explicitly ruled whether 1-210(b)(5)(A), G.S., applies to records that a public agency asserts are its own trade secrets, rather than the trade secrets of private entities submitted to or filed with the agency.

 

38.  Black’s Law Dictionary (8th Ed. 2004) defines “trade” in relevant part as:

 

The business of buying and selling or bartering goods or services …  A transaction or swap …  A business or industry occupation; a craft or profession.

 

39.  The Commission takes administrative notice of the fact that public agencies are generally engaged in governance, not trade.

 

            40.  The Commission also takes administrative notice of the fact that the principal function of the University of Connecticut is not trade, but rather education, a traditional governmental function.

 

41.  As to the records described in paragraph 3e., above, it is found that UConn’s Jorgensen Center for Performing Arts (hereinafter “Jorgensen”) conducts a myriad of entertainment events including opera, dance, classical music, concerts, and various performances.  It is also found that the Jorgensen database contains personal purchasing information about subscribers, individual event ticket buyers and prospects that would be of economic value to entities such as Foxwoods Casino, Mohegan Sun Casino, Bushnell Theater, Goodspeed Theater, and other entertainment venues in the greater New England area.

 

42.  It is found that the Jorgensen rarely shares the database described in paragraph 3e., above, with persons outside of the Jorgensen.  The Jorgensen’s director testified that on a few occasions he has shared limited portions of the database with particular nonprofit arts organizations in exchange for similar information that would have economic value.  The director also testified that he has also denied requests from other organizations to share similar database information.

 

43.  With respect to the records described in paragraph 3g., above, it is found that a database kept and maintained by the University of Connecticut’s Athletics Department exists containing, among other things, names of season ticket purchasers.  It is also found that the associate director of such department testified that the respondent does not keep or maintain a database containing individual ticket purchasers since such tickets are processed through Ticket Master, a private ticket sales and distribution company.

 

44.  It is found that the season ticket purchaser database is maintained in such a way as to avoid its disclosure, particularly to entities in the business of providing athletics events or entertainment throughout Connecticut.

 

45.  It is also found that there have been various requests for the season ticket purchasers database and the respondent has always made reasonable efforts to protect such information by denying disclosure of such database.

 

46.  It is further found that the respondent keeps and maintains a database containing season ticket purchasers, but no such database exists for “individual game purchasers” as described in paragraph 3g., above.

 

47.  It is found however that unlike a private business entity engaged in “trade” where profits are closely linked to such entities’ existence and economic advantage, the cultural and athletic activities of the University of Connecticut are incidental to its primary governmental function of education.  It is also found that the University of Connecticut is largely subsidized by public funding, unlike a private business engaged in trade that depends on earned income for its continued existence.

 

48.  It is therefore found, under the specific facts and circumstances of this case, that the respondent failed to prove that it is engaged in “trade” in connection with the following two areas that are incidental to its educational mission: (1) the marketing and selling of tickets to events at Jorgenson Auditorium; (2) the marketing and selling of tickets for university athletic events.

 

49.  It is therefore concluded that the lists of subscribers, individual event ticket buyers and prospects contained in the database described in paragraph 3e., above, are not “customer lists” within the meaning of 1-210(b)(5)(A), G.S.  It is further concluded that the lists of purchasers contained in the season ticket purchasers database described in paragraph 3g., above, are not “customer lists” within the meaning of 1-210(b)(5)(A), G.S.

 

50.  Consequently, it is also concluded that the databases described in paragraph 3e. and 3g., above, do not constitute “trade secrets” within the meaning of 1-210(b)(5)(A), G.S., and are not exempt from mandatory disclosure.

 

51.  It is therefore concluded that the respondent violated the FOI Act, as alleged in the complaint, with respect to the records described in paragraphs 3e. and 3g., above.

 

52.  With respect to the database described in paragraphs 3h., above, it is found that a database kept and maintained by the library exists containing information about thousands of individuals who have donated to the library, who are listed by virtue of positions they hold, and who have a professional relationship with the chief administrator.

 

53.  It is found that the library uses the donations for a variety of different projects and programs such as renovations to the library, lecture series, and visiting scholars.  It is also found that the list has economic value to the library since there is a fair amount of competition among Connecticut universities, high schools and town libraries for donations to engage in different projects and programs.

 

54.  It is found there has been no previous request for the database described in paragraphs 3h., above.  It is also found that the library has not disclosed such database to any entity outside of the University of Connecticut.  It is further found that the library has taken reasonable efforts to maintain the secrecy of such database.

 

55.  However, the Commission is not persuaded by the respondent’s argument that the database described in paragraph 3h., above, constitutes “customer lists” within the meaning of 1-210(b)(5)(A), G.S. 

 

56.  It is well established that the FOI Act carries a presumption of disclosure of public records, and any exception to the general rule of openness must be narrowly construed.

 

57.  It is found that, while there is an important purpose served by a public university in creating and supporting its facilities and programs through the solicitation and receipt of donations, there is an important public interest in knowing the source of such donations.  It is also found that it is important to know the connection between donors, their donations, and their final use by a public agency.  However, it is customary in all charitable organizations to withhold the names of anonymous donors.

 

58.  It is further found that the respondent failed to prove how donor lists of persons who provide monetary donations to the library constitute “customer lists” within the meaning of 1-210(b)(5)(A), G.S.  While the patronage of such donors often provides financial assistance to the programs and projects of the library, the Commission is not persuaded that the library is engaged in trade with such donors who make monetary donations.  Accordingly, it is found that the acceptance of such donations is not “in the nature of a trade secret.”  See Town and Country House & Homes Services, Inc. v. Evans, 150 Conn. 314, 317-320 (1963) (ordering a new trial where a former employee violated his duty to his former employer by soliciting such employer’s list of customers during his employ).

 

59.  It is therefore concluded that the lists of donors contained in the database described in paragraph 3h., above, are not “customer lists” within the meaning of 1-210(b)(5)(A), G.S.

 

60.  Consequently, it is concluded that the database described in paragraph 3h., above, does not constitute “trade secrets” within the meaning of 1-210(b)(5)(A), G.S., and is not exempt from mandatory disclosure.

 

61.  It is concluded that the respondent violated the FOI Act, as alleged in the complaint, with respect to the records described in paragraph 3h., above.

 

62.  While it is concluded that the database described in paragraph 3h., above, does not constitute “trade secrets” within the meaning of 1-210(b)(5)(A), G.S., under the discreet circumstances presented, the Commission, as a matter of discretion declines to order disclosure of information in such database, of donors who requested anonymity in exchange for their donations to the library.

 

63.  With respect to the records described in paragraph 28, above, as to the respondent’s trade secrets contention, the center’s director testified that continuing studies is a “highly competitive” and “entrepreneurial business.”  The center’s director also testified that the center provides a significant economic return back to UConn which is derived from fees charged for additional educational activities that are not part of funding by the state.  The center’s director further testified that the center is a self-supporting unit of UConn that pays all of its expenses including the salaries of its employees except for one and one-half salary.

 

64.  In addition, the center’s director testified that the center competes with all of the universities in Connecticut for continuing education students.  The center’s director also testified that she is unaware of any request for the database described in paragraph 3f., above, or that such database has ever been disclosed to anyone from outside of UConn.  The center’s director further testified that such database is the center’s economic livelihood since it is used to secure the registration and associated fees of persons who have indicated a particular interest in the center’s courses and events.

 

65.  It is found that the center vies for the business of an indeterminable number of actual and potential course and event registrants.  It is also found that such registrants give the respondent an opportunity to obtain an economic advantage over competitors who do not know and cannot ascertain through regular business channels the identity or the personal information of persons contained in the database described in paragraph 3f., above.

 

66.  However, the Commission is not persuaded by the respondent’s argument that the portion of the database described in paragraph 28, above, which is a subset of paragraph 3f., above, constitutes “customer lists”  within the meaning of 1-210(b)(5)(A), G.S.  The Commission concludes that the provision of education is not a trade, and therefore the trade secrets exemption does not apply to the portion of the database described in paragraph 28, above.

 

67.  It is concluded that the respondent violated 1-210(a), G.S., when it denied the complainant’s request with respect to information stored in the database described in paragraph 28, above.

 

 

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 databases described in paragraphs 3e., 3g., 3h., and the portion of the database described in paragraph 28 of the findings, above, limited to the names and addresses of the persons contained therein, free of charge.

 

2.  The respondent may redact information pertaining to donors, who requested to remain anonymous, from the database described in paragraph 3h. of the findings, above.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 13, 2009.

 

 

________________________________

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:

 

Jonathan Pelto

Impact Strategies Inc.

PO Box 400

Storrs, CT 06268

 

State of Connecticut,

University of Connecticut,

Office of Audit, Compliance and Ethics

c/o Michael J. Sullivan, Esq.

Assistant Attorney General

University of Connecticut

343 Mansfield Road, Unit 2177

Storrs, CT 06269-2177

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2008-341FD/paj/5/13/2009