Final Decision FIC2011-152
In the Matter of a Complaint by
James Craven and the Norwich Bulletin,
||Docket #FIC 2011-152|
Governor, State of Connecticut; and State of Connecticut, Office of the Governor,
March 14, 2012
The above-captioned matter was heard as a contested case on October 27, 2011, at which time the complainants and respondents appeared 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 in a speech to the Eastern Connecticut Chamber of Commerce on February 22, 2011, the Governor said that 10 employers had contacted his office concerning the proposed First Five initiative. It is found that the First Five program was legislation proposed by the Governor that would provide special tax incentives and other financial benefits to the first five companies that agreed to create 200 new jobs in the state. It is found that the proposal was signed into law on July 8, 2011.
3. It is found that on March 4, 2011, the complainants requested from the respondents “identification of the ten (10) companies cited, but not identified, by Gov. Dannel P. Malloy during his breakfast address on February 22, 2011 to the Chamber of Commerce of Eastern Connecticut, in Groton, Connecticut.”
4. It is found that on March 8, 2011, the Governor’s General Counsel replied by letter to the complainants’ request. It is found that the general counsel claimed that the “commercially recorded name” of each company was exempt from mandatory disclosure pursuant to §1-210(b)(5)(B), G.S.
5. By letter filed March 21, 2011, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide them with the copies of records he requested.
6. Section 1-200(5), G.S., defines “public records” as follows:
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, …whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.
7. 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.
8. Section 1-212(a), G.S., provides in relevant part: “Any person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
9. It is concluded that the records requested by the complainants are public records within the meaning of §§1-200(5) and 1-210(a), G.S.
10. It is found that the respondents maintained records at the time of the complainants’ request that identified the employers referenced by the Governor in his speech on February 22, 2011.
11. Section 1-210(b)(5)(B), G.S., provides in relevant part that nothing in the FOI Act shall be construed to require disclosure of “commercial or financial information given in confidence, not required by statute.”
12. It is concluded that §1-210(b)(5)(B), G.S., consists of three elements, which must all be proven for the exemption to apply: (1) commercial or financial information (2) given in confidence, (3) not required by statute.
13. “Commercial information,” as it is used in the federal FOI Act, 5 U.S.C. 552,1 has been construed broadly to mean any information related to business or trade. Pub. Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983).
Exemption 4 of the federal FOI Act, 5 U.S.C. §552(b)(4), protects “trade secrets and commercial or financial information obtained from a person and privileged and confidential[.]”
14. It is found that a company’s name is related to the company’s business or trade. It is concluded, therefore, that the names of the employers referenced by the Governor in his February 22, 2011 address are commercial information, within the meaning of §1-210(b)(5)(B), G.S.
15. With respect to the second element of the claimed exemption, commercial information is “given in confidence” when it is provided “under an express assurance of confidentiality or in circumstances from which such an assurance could reasonably be inferred. Whether the circumstances show an implied assurance of confidentiality is ordinarily a question of fact.” (Internal citation omitted.) Chief of Staff, Office of the Mayor, City of Hartford v. Connecticut Freedom of information Commission, 199 Conn. Super. LEXIS 2209, *8 (August 12, 1999).
16. It is found that the employers did not receive an express assurance of confidentiality from the respondents.
17. The respondents claim that the names were given in confidence because in this context confidentiality was implied by customary practice in economic development negotiations.
18. The complainants observe that confidentiality does not lie where the information is publicly available elsewhere. The complainants contend that because the names of the employers are publicly available, they are not confidential under any circumstances.
19. The respondents, however, claim that, although the names are publicly available, the name of an employer that contacted the governor concerning possible potential participation in the First Five initiative is not information that is in the public domain.
20. It is found, based on the evidence presented at the hearing in this matter, that it is the custom to maintain the secrecy of economic development leads until an agreement is reached.
21. It is found that it was reasonable to infer an assurance of confidentiality in the names of employers that made preliminary inquiries to the respondents about possible participation in the First Five initiative.
22. It is found that, based on the customary confidentiality that attaches to economic development negotiations, the employers that contacted the respondents concerning the First Five initiative gave their names to the respondents in confidence, within the meaning of §1-210(b)(5)(B), G.S.
23. With respect to the third element – whether the information was required by statute, the complainants contend that because the name of the employer would be required if it were to participate in the First Five program, the name was required by statute to be provided.
24. It is found, however, that the First Five initiative was not signed into law until well after the complainants’ request. It is concluded that no statute required the employers to contact the respondents to inquire about the First Five initiative in February.
25. Moreover, it is found that the name of an applicant for a government benefit would be required only at the time of formal application, not at a preliminary stage before the benefit program was in existence.
26. It is found, therefore, that the employers who contacted the respondents in February about the First Five initiative were not required by statute to provide their names.
27. It is found that the respondents satisfied all three elements of their claimed exemption.
28. It is concluded, based on the specific facts of this case, that §1-210(b)(5)(B), G.S., exempts from mandatory disclosure the names of the employers that contacted the respondents concerning the First Five initiative by February 22, 2011.
29. It is concluded that the respondents did not violate the FOI Act as alleged by the complainants.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of March 14, 2012.
Cynthia A. Cannata
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:
James Craven and the Norwich Bulletin
c/o William A. Hurst, Esq.
Greenberg Traurig, LLP
54 State Street
Albany, NY 12207
Governor, State of Connecticut; and State of Connecticut
Office of the Governor
c/o Philip Miller, Esq.
Assistant Attorney General
Office of the Attorney General
55 Elm Street
Hartford, CT 06106
Cynthia A. Cannata
Acting Clerk of the Commission