DocketNumber: No. CV97 0573178
Citation Numbers: 1998 Conn. Super. Ct. 7589, 22 Conn. L. Rptr. 192
Judges: McWEENY, J.
Filed Date: 6/5/1998
Status: Non-Precedential
Modified Date: 4/17/2021
Norwich is a public agency within the meaning of General Statutes §
Cassidy by letter of November 7, 1996, requested of Norwich copies of three agreements including the Transportation Standby and Balancing Agreement (agreement) between Norwich and the Utility Authority. Norwich, by letter of November 13, 1996, indicated that the agreement would be provided except for "Exhibit 1" which Norwich claimed to be exempt from disclosure under General Statutes §
Cassidy by letter of November 22, 1996, complained to the FOIC of the denial of the requested document (Exhibit 1). The CT Page 7590 FOIC pursuant to §
In its decision the FOIC found that Norwich failed to prove that Exhibit 1 to the agreement constitutes a trade secret under §
The subordinate facts in this case are not substantially in dispute. Yankee Gas had been the gas supplier for the Mashantucket Pequot Tribe (the tribe). Norwich entered into a contract with the tribe for supplying gas over a ten-year period. In order to effectuate the contract, Norwich would construct a gas pipeline to the tribal facility. The terms of the arrangement between Norwich and the Mashantucket Pequot Tribe are set forth in the August 1, 1996 agreement. (Return of Record (ROR), Item 5 Ex.C.)
The exhibit at issue is a 15-20 page cost of service study which measures Norwich's marginal or incremental costs. The cost of service study reflects a specific formula to allocate costs to deliver volume of product at a determined rate. Thus, the contract price of $0.75 per/MCF (cubic feet of gas) is adjusted based on volume. (ROR, Item 5, Ex. C, p. 15.)
The exhibit was produced by a consultant. It consists of a cost of service study obtained by Norwich for several thousands of dollars. (ROR, Item 9, p. 24.) The exhibit is not directly available to the public. (ROR, Item 9, p. 25.) It reflects a specific formula which allocates costs to deliver a volume of product within a rate determined. (ROR, Item 9, p. 22.) Norwich is not regulated by the Connecticut Department of Public Utility Control (Connecticut DPUC) and is not required by statute to file such information. (ROR, Item 9, pp. 8,
In its final decision dated July 9, 1997, and mailed July 23, 1997, the FOIC ordered the disclosure of "Exhibit 1." Norwich is aggrieved by such decision. Norwich appealed the decision on August 26, 1997. The answer and record were filed on February 23, 1997. Briefs were filed by Norwich on January 22, 1998, Cassidy, CT Page 7591 on February 23, 1998, and the FOIC, on February 25, 1998. The parties were heard in oral argument on May 19, 1998.
Sections
The FOIC refers to the plaintiff's failure to prove the application of the exemptions. The court is required to defer to the facts found by the FOIC. Dufraine v. Commission on HumanRights Opportunities,
Connecticut law has adopted the definition of trade secrets from the Restatement of Laws. Town Country House Home Service,Inc. v. Evans,
A trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.
Some of the factors to be considered in determining whether given information is a trade secret are (1) the extent to which the information is a trade secret outside the business; (2) the CT Page 7592 extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the employer to guard the secrecy of the information; (4) the value of the information to the employer and to his competitors; (5) the amount of effort or money expended by the employer to developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.
Applying such criteria to the facts of this case the court finds the following. (1) Cost of service studies are routinely viewed as confidential by DPUC. (2) The agreement is available to plaintiff's personnel, the Norwich utility commissioner, the tribal personnel, and the Bureau of Indian Affairs (R. Ex. 5 p. 33). (3) No evidence of confidentiality agreements or internal controls is in the record. There is testimony that it would not generally be available to the public. (ROR, Item 9, p. 25.) (4) The cost of service study was paid for by plaintiff at a cost of thousands of dollars and is desired by a competitor Yankee Gas. (5) The cost of the consultant was incurred by the plaintiff. (6) The information is available to various members of the Mashantucket Tribe, plaintiff's employees; the Norwich Utility Commission and the Bureau of Indian Affairs.
The 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. The plaintiff failed to meet its burden of establishing the application of the exemption.
Similarly, the plaintiff failed to establish the applicability of the §
The FOIC decision is affirmed and the appeal is dismissed.
McWEENY J.