City lawyers are like gatecrashers dropping a turd in the party punch bowl of good news. Bridgeport’s boarded-up Downtown twin jewels Poli Palace and Majestic theaters have finally–after 40 years–received some attention based on the city’s Office of Economic Development issuing a “Request for Expressions of Developer Interest” for a development plan vision. Four potential developers have responded. Thus far, only city officials know the names of the entities and the content of their proposals. That’s because the City Attorney’s Office has closed the curtain on OIB’s request to simply release the company names of the competing parties.
Well, lawyers fear, according to part of their argument, the good names of the companies could be soiled in the comments section of OIB. OIB posters bite, they argue. So much for positive public disclosure. This is a blanket nondisclosure by city lawyers; it’s not specific to OIB, but that was one of the assertions.
Lawyers for the city are not in the risk business. They are paid to protect city interests, although that is not always the end result. What’s the real risk of simply disclosing names of competing entities? It does not occur to them that broadcasting the potentially good news of theater interest coupled with the bright light of scrutiny could create even greater competition and a better deal for the city.
Is the city required to list details of the proposals at this stage of the process? No, not until the process is completed and a development deal sealed, according to the Connecticut Freedom of Information Act. Is the city permitted to release information at this stage of the process. Yes, according to the same act.
From CT FOI Act:
“Responses to any request for proposals or bid solicitation issued by a public agency or any record or file made by a public agency in connection with the contract award process, until such contract is executed or negotiations for the award of such contract have ended, whichever occurs earlier, provided the chief executive officer of such public agency certifies that the public interest in the disclosure of such responses, record or file is outweighed by the public interest in the confidentiality of such responses, record or file.”
Understandably, businesses include in the solicitation responses confidential company information. But for the city to not simply release the names of the competing entities?
OIB’s request for release of response names started with professional staff which then referred to the City Attorney’s Office. OIB made its pitch. A team of city lawyers declared they were against releasing the information. Public dissemination to a site such as OIB could be unproductive to the process. Associate City Attorney Mark Anastasi, the senior member of the legal office, is historically loathe to releasing information to the public, if it can be avoided. The office advised information could only be released upon authority of the mayor.
OIB reached out to Mayor Joe Ganim who responded he sees no problem with releasing the names. His communications team as well wants to disclose names to drive as much positive information about the process. But when the mayor asked the lawyers what’s wrong with releasing the business names, they pushed back. As a result, we are in limbo.
The city covered its butt in the solicitation package that included the following language under “Treatment of Confidential Information.”
Financial statements, proposals and other business confidential information may not be subject to disclosure under the Connecticut Freedom of Information law, Section 1-210(b)(5)(A) of the Connecticut General Statutes (FOIA), if such information constitutes “trade secrets” as defined therein. If a Respondent desires certain information to be protected from disclosure under FOIA as a trade secret, the Respondent should clearly identify such information, place such information in a separate envelope appropriately marked, and submit such information with its response. Such information shall be retained by OPED in confidence, shall only be viewed by City employees and consultants having a “need to know,” and shall be returned to all unsuccessful Respondents, or will be destroyed, upon the conclusion of the City’s selection process.
If such information is sought to be disclosed, OPED will afford notice to the party or parties whose information is being sought so that each has an opportunity to dispute disclosure in a court of law at such party’s sole cost and expense. The City shall protect information from disclosure or refuse to disclose such information unless it (i) is already known; (ii) is in the public domain through no wrongful act of the City; (iii) is received by the City from a third party who was free to disclose it; (iv) is properly disclosable under FOIA; or (v) is required to be disclosed by a court of law.
OIB, at this point of the process, has asked only for the names of the competing parties.
Mayor Joe Ganim has the opportunity to overrule city lawyers in the cause of taxpayer transparency. Will he?