55 Conn. App. 527 | Conn. App. Ct. | 1999
Opinion
The plaintiff department of public utilities of the city of Norwich (Norwich) appeals from the judgment of the trial court upholding an order of the defendant freedom of information commission (commission)
The defendant attorney Joseph J. Cassidy, representing Yankee, complained to the commission, which ordered the disclosure of the study. Norwich appealed from that order to the Superior Court, which affirmed the order of the commission. Norwich now appeals to this court.
Norwich claims that the study is a trade secret and, as such, is exempt from disclosure pursuant to § 1-19 (b) (5). Norwich relies on the reasoning of our Supreme Court in Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 125-26, 222 A.2d 220 (1966), which held that a corporation’s costs, pricing and bidding procedures
Applying the criteria set forth in Town & Country House & Homes Service, Inc., the trial court found that “(1) cost of service studies are routinely viewed as confidential by [the department of public utility control]; (2) the agreement is available to [Norwich’s] personnel, the Norwich utility commissioner, the tribal personnel and the [United States] Bureau of Indian Affairs; (3) no evidence of confidentiality agreements
On the basis of these findings, the court concluded that “[t]he evidence of dissemination of the study and the absence of any confidentiality agreement or any steps taken to limit its dissemination defeat the claim of secrecy or confidentiality essential to the definition of ‘trade secret.’ [Norwich] failed to meet its burden of establishing the application of the exemption.”
General Statutes § l-21i (d), now § 1-206 (d), provides that “appeals from the decisions of the commission are taken pursuant to the Uniform Administrative Procedure Act (UAPA). General Statutes §§ 4-166 through 4-189. . . . This court is required to defer to the subordinate facts found by the commission, if there is substantial evidence to support those findings. Dufraine v. Commission on Human Rights & Opportunities, 236 Conn. 250, 259, 673 A.2d 101 (1996); Newtown v. Keeney, 234 Conn. 312, 319-20, 661 A.2d 589 (1995).” (Citations omitted; internal quotation marks omitted.) Furhman v. Freedom of Information Commission, 243 Conn. 427, 430-31, 703 A.2d 624 (1997). In the present case, the subordinate facts are not in dispute. Rather, it is the meaning of the statute that is disputed. “The determination of the meaning of a statute presents a question of law, which is within the province of the trial court and of this court.” Id., 431.
The court found, and Norwich agrees, that the definition of trade secrets adopted by our Supreme Court in
“[I]t is well established that the general rule under the Freedom of Information Act [FOIA] is disclosure, and any exception to that rule will be narrowly construed in light of the ‘general policy of openness expressed in the FOIA legislation.’ Board of Education v. Freedom of Information Commission, [208 Conn. 442, 450, 545 A.2d 1064 (1988)]. ‘The burden of proving the applicability of an exception to the FOIA rests upon the party claiming it.’ Rose v. Freedom of Information Commission, 221 Conn. 217, 232, 602 A.2d 1019 (1992).” Ottochian v. Freedom of Information Commission, 221 Conn. 393, 398, 604 A.2d 351 (1992).
Norwich contends that the fact that some public officials reviewed the study does not defeat a claim of secrecy and, furthermore, that there was no evidence to show that access to it was allowed to the general public. See Plastic & Metal Fabricators, Inc. v. Roy, 163 Conn. 257, 269, 303 A.2d 725 (1972) (inspection by public official does not contradict element of secrecy). “[A] substantial element of secrecy must exist, to the extent that there would be difficulty in acquiring the information except by the use of improper means.” (Internal quotation marks omitted.) Id., 265. However, “absolute secrecy is not essential and the plaintiff does not abandon his secret ‘by delivering it or a copy to another for a restrictive purpose, nor by a limited publication.’ ” Id., 268.
Here, the trial court found that there was no evidence that the study was to be kept confidential. Although the court cited the lack of a confidentiality agreement as part of its reasoning for such a conclusion, it coupled
The judgment is affirmed.
In this opinion the other judges concurred.
Attorney Joseph J. Cassidy, acting on behalf of Yankee Gas Services Company, requested the cost of service study from Norwich. After Norwich denied his request, he appealed to the commission, which ordered disclosure. Cassidy is a defendant in this appeal.
Norwich also claims that the court improperly determined that the study was not held in confidence where it was available only to Norwich, its customer and essential regulatory agencies. This claim is subsumed in the arguments addressed to the main issue of whether the study was a trade secret and whether it was exempt from disclosure under the statute.
General Statutes (Rev. to 1997) § 1-19, now § 1-210, provides in relevant part: “(a) 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 inspect such records promptly during regular office or business hours or to receive a copy of such records ....
“(b) Nothing in [the Freedom of Information Act] . . . shall be construed to require disclosure of . . . (5) trade secrets, which for purposes of [the Freedom of Information Act], are defined 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