Connecticut’s FOI Loophole: Third-Party Contracts (Part 2)

Editor’s Note: The following article is written by Jacqueline Wattles, who studied journalism and recently graduated from the University of Connecticut. She will be attending the Columbia University Graduate School of Journalism this fall. Most of the reporting she did for this article can also be found at UConn’s The Daily Campus and This article is posted in two parts. The first part can be read here.

By Jacqueline Wattles

wattlesSteven D. Ecker, an attorney for IMG and Webster, wrote a letter to the commission in February 2013 stating that the public interest “clearly favors nondisclosure” because disclosing information regarding the agreement between IMG and Webster would “negatively affect UConn’s ability to generate maximum revenue” from corporate sponsorships. He argued that if the university is unable to ensure the confidentiality of its sponsors, prospective sponsors would be “sorely tempted” to contract with private universities instead.

Ecker also argued that the document detailed “trade secrets” of the university, as well as of the private companies, which are exempt from disclosure under state FOI law. Ecker’s argument is backed by a 2011 state Supreme Court decision, which ruled against former state Rep. Jonathan Pelto‘s argument that public institutions cannot retain “trade secrets.” Trade secrets are defined by the Connecticut FOI law as

“information, including formulas, patterns, compilations, programs, devices, methods, techniques, processes, drawings, cost data, customer lists, film or television scripts or detailed production budgets that derive independent economic value, actual or potential, from not being generally known to […] other persons.”

The state Supreme Court’s 2011 ruling essentially confirmed that public universities, such as UConn, can in fact keep some of its fundraising practices a secret.

After the decision, Pelto said allowing a public entity to claim trade secrets starts the state down a slippery slope. He added that the FOI law was written extraordinarily broad with very specific exemptions to ensure public access to as much information as possible. Still, FOIC attorney Cliff Leonhardt relied on another argument in the case and instead acknowledged that UConn’s ability to keep some things secret is especially important because of the state’s large investments in its bioscience program. The state, he said, must allow UConn to protect its research if it wants a return on those investments.

Leonhard’s words echo those of Ecker. UConn, just like other public universities, has to keep some secrets to stay competitive. Tough economic times and waning financial support from the state, it can be argued, are forcing public institutions to leverage those “trade secrets” to help increase revenue.

In March 2014, the UConn Board of Trustees confirmed a projected $40 million deficit in the upcoming budget. At that same meeting, the board announced dismal private fundraising figures, having reached only 47 percent of its goal at the end of the third quarter of the fiscal year. Meanwhile, UConn President Susan Herbst said in an interview that those private funds are central to fueling the university’s operations, as the state in recent years reduced its financial support to the university by about $40 million. Meanwhile, tuition has increased for students as the school tried to make up for other cuts. A $678 tuition hike is expected next year.

But the question remains: Even if the university is strapped for cash, does that justify allowing its athletic department to avoid disclosing major contract deals — deals that would otherwise be subject to public disclosure — by contracting through a third party? At least one state lawmaker doesn’t think so. State Sen. Martin Looney proposed S.B. 204 in January 2013. After hearing about the university’s refusal to release its contract with Webster Bank, he introduced the legislation that would have amended the state’s FOI law to

“require that any contract relating to a public institution of higher education becoming a marketing partner with an entity that is a party to such contract, whether or not such institution of higher education is a party to such contract, be subject to disclosure.”

FOIC Executive Director Colleen Murphy issued a statement in support of the bill, saying it “would close an unfortunate loophole” that shields such documents from public view — but the bill died in committee. Looney revealed in a later interview that UConn officials held a meeting with him to discuss the bill. He said university officials essentially gave him their word that UConn would not do any more third-party contracting to raise money.

In the end, the Associated Press provided legal counsel to help Eaton-Robb’s case, but the AP attorney decided that despite the merits of the case, the facts were more complicated than first understood. According to the AP’s withdrawal letter,

Rather than seek to reopen the record in the present appeal, we intend to serve new, and considerably broader, FOI requests on UConn and, if appropriate, IMG directly. These new requests will help us develop a complete factual record reflecting the true relationship between UConn, IMG and WebsterBank.

The court dismissed the complaint with prejudice.

While the public may never see UConn’s deal with Webster, the story line offers a foreboding look at FOI’s future in the increasingly competitive world of higher education. While continuing to raise enough private money to offset rising tuition costs is a principled goal, assuring best practices and combating corruption rarely occurs without free and accessible information. The modern journalist must be aware of these new fundraising practices and be prepared to ensure that the Freedom of Information Act is not threatened by a moneymaking agenda.

Jacqueline graduated from the University of Connecticut in 2014. She will be attending the Columbia University Graduate School of Journalism this fall. Her work can be read at The Daily Campus and

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