FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

 

In the Matter of a Request
    for Advisory Opinion


 

     Advisory Opinion   #58

State Treasurer, Applicant

    

 

 

 

On December 28, 1983, the Commission considered and agreed to respond to the request for an advisory opinion filed by the Treasurer of the State of Connecticut.

 

A

 

In his request, the applicant states that his office has the responsibility for administering Conn. Gen. Stat.3‑13f. That statute requires the applicant to disinvest all state funds and invest no new funds in corporations which: (1) do not adopt the, "Sullivan Principles" and do not obtain a rating in the top two categories of the "Sullivan Principles" rating system; (2) supply strategic products or services to the government of South Africa, its police or military, and (3) do not recognize the right of all South African employees to strike and organize in support of social and economic objectives free from the fear of dismissal or blacklisting.

 

In furtherance of his responsibilities under 3‑13f, the applicant has had his staff request information from certain corporations whose stock he holds as trustee for the benefit of state teachers, state employees and municipal employees. Some of the responses to the request for information have been exemplary and do not appear to have required an undue amount of effort or inordinate disclosure. On the other hand, four corporations have expressed a reluctance to divulge the requested information on the ground that it is competitive in to nature and they do not want it disclosed as a "public record" to their competitors.

 

The four corporations that have not provided an adequate response to the applicant's inquiry are companies that sell or lease computer or data processing equipment. One company has evidenced a general reluctance to disclose requested information about its activities in South Africa. The other three have not responded specifically to the following interrogatory asked by the applicant:

 

 

 

 

Has your corporation sold, directly or indirectly, any computers and/or data processing equipment to the government of South Africa or any of its instrumentalities, or for use by the military or police in South Africa, or in connection with the pass system as practiced in South Africa since June 9, 1982, the effective date of Connecticut P.A *82‑324?

 

If yes, please describe product sold and purchasing agency.

 

The applicant seeks this information in order to make an independent determination as to whether the subject corporations are, in fact, "doing business in South Africa." as that term is defined in 3‑13f; and, if so whether they are subject to the divesting provisions of that statute because they are supplying "strategic products and services. There is a statutory prohibition against supplying "strategic products and services" such as computers and data processing equipment for "military or police use or for use in connection with the pass system as practiced in the Republic of South Africa." The applicant believes that the requested information is not otherwise available from public sources.

 

B

 

In essence, the applicant seeks the Commission's opinion as to whether the lists of customers, or their agents, who purchase or lease certain products, and the specific descriptions of such products, which information is received by the applicant in response to his inquiries to qualifications for state investments under Conn. Stat.3‑13f, are exempt from public disclosure as a "trade secret" pursuant to Conn. Gen. Stat.1‑19(b)(5).

 

C

 

The exemption to disclosure for trade secrets, found in Conn. Gen. Stat.1‑19(b)(5), is in two parts. The first part defines trade secrets for purposes of the Freedom of Information (FOI) Act as

 

unpatented, secret, commercially valuable plans, appliances, formulas, or processes, which are used for the making, preparing, compounding, treating or processing of articles or materials which are trade commodities obtained from a person and which are recognized by law as confidential..

 

It is clear that the 1ists of customers or agents and the descriptions of computer or data processing equipment sought by the applicant do not fall within this portion of the definition of trade secrets.

 

 

 

The second part of the 1‑19(b)(5) definition of secrets refers to

 

commercial or financial information given in confidence, not required by law and obtained from the public.

 

It is this provision that must be analyzed in depth in order to answer the question posed by the applicant.

 

D

The FOI Act embodies a broad and strong legislative policy favor of the open conduct of government and free public access to government records, Board of Trustees of Woodstock Conn. Academy . v. FOI Commission 181 Conn. 544, 550 (1980). In effect, this is a corollary to a fundamental rule of statutory construction that when a statute creates an exception to a general rule (in this instance, the general rule is public access to records received by a public agency), the exception is to be strictly construed and its language is not to be extended beyond its evident intent. Willoughby v. New Haven, 1‑23 Conn. 446, 454 (1937). Thus, the Commission is obliged to interpret strictly and narrowly the operative provisions of the 1‑19(b)(5) exemption to disclosure.

 

 

The first issue necessary to a determination of the applicability of the exemption is whether the subject information constitutes "commercial or financial information. It is the Commission's opinion that lists of customers, or their agents, who purchase or lease a company's products, and the specific descriptions of such products, constitute commercial information within the meaning of 1‑19(b)(5).

 

The second issue necessary to a determination of applicability of the exemption is whether the subject information was "given in confidence." In this regard, two factors are relevant, both of which the Commission believes must be present before this element of the exemption can be found to apply. Initially, the corporation submitting the information must request confidentiality. If that factor is met, then the agency still must make its own independent evaluation of the confidential nature of the information. For example, even if the corporation requests confidentiality, it is the Commission's opinion that the information is not given in confidence for purposes of the exemption if that same information is available to the public, from other sources. Accord, Town & Countrv House & Homes Service, Inc. v. Evans, 150 Conn. 314, 320 (1963) (" ... where the identity of the customers is readily ascertainable through ordinary business channels or through classified business or trade directories, the courts refuse to accord to the list the protection of a trade secret.").

 

The applicant states that he believes that the specific information requested is not readily available from other sources. If that is the case, and the responding company requests confidentiality, then in the circumstances presented, it is the Commission's opinion that the "given in confidence" component of the 1‑19(b)(5) exemption has been met.

 

The third issue necessary to a determination of the applicability of the exemption is whether the subject information is required by law. Only in the situation where the information is "not required by law" will the exemption apply.

 

Conn. Gen. Stat.3‑13f does not mandate that a corporation provide the applicant with the information in question. Indeed, that statute merely provides for the disinvesting of assets held by the applicant under certain circumstances. Furthermore, the Commission is unaware of any other law that requires a corporation to disclose the subject information to the applicant. If a corporation chooses not to disclose the requested information, the Commission believes that it is making nothing more than a business judgment to risk the loss of investment funds rather than suffer whatever perceived harm it fears in complying with the request. Consequently, in the absence of the express legal power by which the applicant can compel disclosure of the information at issue, it is Commission's opinion that such information, when given to applicant, is "not required by law" for purposes of 1‑19(b)(5) exemption.

 

The fourth and final issue necessary to a determination of the applicability of the exemption is whether the subject information was "obtained from the public." The Commission interprets this provision to include specific elements ordinarily considered as part of the public such as individuals, corporations and other legally constituted persons other than public agencies. Thus, it is also the Commission's opinion that the requested information given to the applicant in this context constitutes information "obtained from the public," within the meaning of 1‑19(b)(5).

 

E

 

Based upon the foregoing facts and analysis, the applicant's question, as set forth in Section B above, is answered in the affirmative. But the Commission believes that this conclusion ought not to be totally dispositive of the problem presented by this request for an advisory opinion. For the Commission believes that there are other important considerations that the applicant ought to take into account.

 

The exemptions to disclosure in Conn. Gen. Stat.1‑19(b) are permissive, not mandatory. They are not mandatory because they are prefaced by the limitation that "[n]othing in ... [the FOI Act) shall be construed to require disclosure of ... [at present, 14 specific kinds of records]." Therefore, 1‑19(b) does not compel confidentiality. It merely states that disclosure exempted records is not required by the FOI Act.

 

As a result, under the limited circumstances described in this opinion, the applicant has discretion to confer confidentiality if so requested by corporations that provide him with documents in response to his request for information. In deciding whether to exercise that discretion, however, the Commission believes that the applicant ought to keep in mind both the purpose of 3‑13f and the broad policy in favor of public disclosure as embodied in the FOI Act, and attempt to accommodate them.

 

 

The Commission believes that the fundamental purpose underlying 3‑13f is that corporations "doing business in South Africa" ought not to enjoy the benefits of funds invested by the State of Connecticut. This is because such corporations are deemed to support a regime that employs apartheid practices contrary to the public policy of this state and universal concepts of human rights and dignity. When the applicant determines that he must obtain the information in question from certain corporations, he is seeking the information in order to independently ascertain whether they, in fact, are "doing business in South Africa." If the applicant, or any successor in office, declines to make that information public, the people of Connecticut will not know whether a decision in this regard has been made on a sound basis, or whether the applicant or successor is somehow negligently or willfully subverting purpose of 3‑13f.

 

Thus, public disclosure not only aids in achieving the goals of 3‑13f, it fosters the policy underlying the FOI, Act. That policy is that the people in a representative democracy have the right to know not only what actions their government is taking, but what considerations go into making the decisions that result in such actions. It is the Commission's opinion that those considerations ought to be given great weight in the applicant's prospective judgments concerning confidentiality of the subject information. This is particularly true because there is no legal compulsion that forces a corporation to disclose the requested information to the applicant. If a corporation provides the information (as some already have in an exemplary fashion), it is doing so purely as a business matter in order to assure continuing investment of significant resources managed by the applicant in his fiduciary capacity on behalf of the people of Connecticut.

 

 

 

                                                                                            By Order of the Freedom of
                                                                                            Information Commission

                                                                                           

                                                                                ________________________
                                                                                            Judith A. Lahey, Chairman of
                                                                                            of the Freedom of Information
                                                                                            Commission

Date ___________________

 

Ordered_________________

Mary Jo Jolicoeur
Clerk of the Commission