FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Andrea B. Buermeyer,
Complainant
against Docket #FIC 92-132
Regulation of Wages Division, State of Connecticut Department of Labor,
Respondent March 24, 1993
The above-captioned matter was heard as a contested case on October 8, 1992, at which time the complainant and the respondent appeared, stipulated to certain facts 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 respondent is a public agency within the meaning of 1-18a(a), G.S.
2. By letter of complaint filed April 16, 1992, the complainant appealed to the Commission, alleging that her March 18, 1992 request for certain records had been denied.
3. It is found that the complainant had been the acting director of the Women's Center of Southeastern Connecticut, Inc., a private nonprofit corporation.
4. It is found that the Women's Center was investigated by the respondent on or about December 17, 1991, as a result of which it was ordered to pay previously unpaid wages.
5. It is found that the complainant, by letter dated March 18, 1992, requested from the respondent copies of the following records:
a. any and all letters of complaint that gave rise to the field investigation;
b. all correspondence sent to or received from the Women's Center relative to this investigation; and
c. a copy of the respondent's final report.
6. It is found that the respondent provided some information to the complainant by letter dated March 20, 1992, but did not then provide copies of any of the requested documents.
Docket #FIC 92-132 Page 2
7. It is found that the respondent provided copies of certain documents responsive to the complainant's request under cover of letters dated September 16, 1992 and September 29, 1992.
8. It is found that the documents provided under cover of letter dated September 16, 1992 consisted of a letter dated January 17, 1992 from the respondent to the Women's Center directing payment of unpaid wages; a letter dated January 27, 1992 from the Women's Center's counsel to the respondent requesting an extension of the payment date; and the respondent's Notice of Wage Violation to the employer.
9. It is found that the Notice of Wage Violation is the only record responsive to the complainant's request for a final report.
10. It is found that the documents provided under cover of letter dated September 29, 1992 consisted of a Notice to Employer Unpaid Wages Due, from which had been redacted the names, addresses and social security numbers of the employees other than the complainant to whom unpaid wages were due.
11. It is found that the respondent also provided to the complainant copies of records of correspondence indicating the amounts of checks issued for unpaid wages, with the names of the employees receiving the checks redacted.
12. It is found that the employees whose names were redacted from the records described in paragraph 11, above, received notice of the complainant's request and objected to their names being disclosed.
13. At the hearing, the respondent represented that it had failed to reach five employees, that it would make a second effort to do so, and that if it did not succeed or the employees did not object, the names of those employees with the amount of the checks they received would be disclosed.
14. It is found that the respondent offered additional records before the hearing on this matter, which the complainant declined to accept.
15. It is found that the additional documents offered consisted of 114 Wage Transcription and Computation Sheets that record the date of the work week, the hours worked, the number of hours paid and worked, the rate of pay, the wages paid, the wages due, and the difference due.
16. It is found that the employees' names, addresses, social security numbers and job descriptions were redacted from the documents described in paragraph 15, above.
Docket #FIC 92-132 Page 3
17. It is also found that the documents described in paragraph 15, above, are not responsive to the complainant's March 18, 1992 request.
18. It is concluded that all the records provided to the complainant and responsive to her request are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
19. It is concluded that the records provided to the complainant were not provided promptly, in violation of 1-19(a) and 1-15, G.S.
20. The respondent submitted for in camera inspection the records not provided to the complainant.
21. It is found that the documents submitted by the respondent for in camera inspection consist of copies of the following:
a. a Statement of Claim for Wages, identified as in camera document 92-132-1.
b. a memorandum from a Women's Center employee to the Women's Center dated February 11, 1991 and copied to the complainant, identified as in camera record 92-132-2.
c. daily attendance records for the employee referenced in paragraph 21(b), above, identified as in camera records 92-132-3 through 92-132-5.
d. a memorandum from the Women's Center employee referenced in paragraph 21(b), above, to the Women's Center dated February 7, 1991, identified as in camera records 91-132-6 through 91-132-9.
e. a memorandum dated January 31, 1991 from the complainant to the employee referenced in paragraph 21(b), above (which memorandum was originally attached to the memorandum described in paragraph 21(d), above) identifed as in camera record 92-132-10.
f. a Statement of Claim for Wages, identified as in camera record 92-132-11.
g. page nine of the Women's Center personnel policy, identified as in camera record 92-132-12.
h. a letter to the respondent dated February 2, 1991 from a Women's Center employee, identified as in camera record 92-132-13.
Docket #FIC 92-132 Page 4
i. two pay check stubs for the employee referenced in paragraph 21(h), above, identified as in camera record 92-132-14.
j. daily attendance records for the employee referenced in paragraph 18(h), above, identified as in camera records 92-132-15 through 92-132-17.
22. At the request of the complainant during the hearing, the Commission takes administrative notice of its final decision in Docket #FIC 78-202, Marc Gunther and Mark Stillman against Labor Department et al.
23. In Docket #FIC 78-202, the Commission ordered disclosure of records similar to those at issue in the present case.
24. It is concluded that the Commission's decision in that case was predicated upon a finding that there is a legitimate public interest in the disclosure of information concerning the enforcement of minimum wage laws.
25. It is concluded that the weighing of public interest in dislosure is part of a balancing test under 1-19(b)(2), G.S., which test has been abandoned by the Supreme Court in Chairman v. FOIC, 217 Conn. 193 (1991).
26. It is also found that the decision in Docket #FIC 78-202 also rested upon findings that the employer had no privacy rights, and that the employer had failed to prove that disclosure would result in an invasion of privacy.
27. It is found that the respondent's position in the present case is that the employees', not the employer's, privacy rights would be violated, and that the respondent offered evidence in this regard.
28. It is therefore concluded that Docket #FIC 78-202 is not determinative of the present controversy, having been decided under a different interpretation of 1-19(b)(2), G.S., as well as a different privacy claim and different facts.
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29. It is found that all of the documents described in paragraph 21, above, with the exception of the document described in paragraph 21(g) (which is not itself responsive to the complainant's request), and the records described in paragraph 11, above, are precisely the kind of records ordinarly contained in an employee's personnel file, such as attendance records, pay records, complaints about unpaid wages, and records concerning employee terminations or resignations.
30. It is concluded that the records referenced in paragraph 29, above, are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
31. It is also concluded that the records referenced in paragraph 29, above, are personnel or similar files within the meaning of 1-19(b)(2), G.S.
32. It is found that private employees, who are neither paid with governmental funds nor perform governmental functions, have a reasonable expectation of privacy in the information contained in the records at issue in this case.
33. It is therefore concluded that the records withheld from the complainant by the respondent are permissibly exempt from disclosure pursuant to 1-19(b)(2), G.S.
34. The respondent additionally maintains that the disputed records are exempt from disclosure pursuant to 1-19(b)(3).
35. Having concluded that the subject records are exempt from disclosure pursuant to 1-19(b)(2), G.S., the Commission concludes that it is unnecessary to determine the respondent's claim of exemption under 1-19(b)(3), G.S.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. With respect to the conclusion in paragraph 19 of the findings, above, henceforth the respondent shall strictly comply with the promptness requirement of 1-15 and 1-19(a), G.S.
2. With respect to the records submitted for in camera inspection, the complaint is dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of March 24, 1993.
Debra L. Rembowski
Acting Clerk of the Commission
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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:
Andrea B. Buermeyer
40 Spicer Avenue
Groton, CT 06340
Regulation of Wages Division, State of Connecticut,
Department of Labor
c/o Asst. Atty. Gen. Laurie Adler
55 Elm Street
Hartford, CT 06106
Debra L. Rembowski
Acting Clerk of the Commission