FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
George Brey and AFSCME Local 1565,
Complainants
against Docket #FIC 93-205 and
Docket #FIC 93-206
State of Connecticut, Auditors of Public Accounts; State of
Connecticut, Office of the Attorney General,
Respondent February 16, 1994
The above-captioned matters were heard as contested cases on October 22, 1993, at which time the complainants and the respondents 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 respondents are public agencies within the meaning of 1-18a(a), G.S.
2. It is found that in a telephone conversation on or about December 4, 1992, and by letter dated December 9, 1992, complainant Brey complained to the respondent auditors about unpaid wages and earned time reductions stemming from a time and attendance audit of state employees at Hartford's Morgan Street Detention Center (hereinafter "center").
3. It is found that pursuant to 4-61dd, G.S., an investigation was conducted by the respondent auditors as a result of complainant Brey's December complaints.
4. It is found that in the winter of 1993, the respondent auditors completed their investigation, created a report containing their recommendations and findings, and in February, 1993, forwarded a copy of that report to the respondent Office of the Attorney General (hereinafter "respondent attorney general").
5. It is found that in June, 1993, complainant Brey was orally informed by someone in the respondent auditors' office that the auditors' had finished their report and that his complaint to the auditors was deemed to have merit.
Docket #FIC 93-205 and Docket #FIC 93-206 Page Two
6. It is found that on or before June 15, 1993 (hereinafter "June request"), complainant Brey requested that the respondent auditors provide him with a copy of the report relating their findings and recommendations.
7. It is found that the respondent auditors failed to respond to, or comply with, the complainants' June request.
8. It is found that by letters dated June 15 and July 15, 1993, complainant Brey requested that the respondent attorney general provide him with a copy of the report.
9. It is found that by reply letter dated July 15, 1993, the respondent attorney general informed the complainants that the report at issue was exempt from disclosure pursuant to 1-19(b)(13) and 4-61dd, G.S.
10. By letters of complaint dated July 22, 1993, and filed with the Commission on July 27, 1993, the complainants appealed the respondent auditors' failure to respond to, or comply with their records request, and the respondent attorney general's denial.
11. It is found that the report at issue is approximately ten pages in length and contains the findings and recommendations of the auditors, interspersed with third party statements corroborating those findings.
12. Section 4-61dd(a), G.S., concerning the disclosure of information to auditors of public accounts and subsequent investigation by the respondent attorney general, states in relevant part that:
(a) Any person having knowledge of any matter involving corruption, unethical practices, violation of state laws or regulations ... abuse of authority or danger to the public safety ... may transmit all facts and information ... concerning such matters to the auditors of public accounts. The auditors of public accounts shall review such matter and report their findings and any recommendations to the attorney general.... [T]he attorney general shall make such investigation as he deems proper.... [T]he attorney general shall where necessary, report his findings to the governor ... or chief state's attorney .... The auditors of public accounts and the attorney general shall not, after receipt of any information from a person under the provisions of this section, disclose the identity of such person without his consent unless ... such disclosure is unavaoidable during the course of the investigation.
Docket #FIC 93-205 and Docket #FIC 93-206 Page Three
13. It is found that at the hearing on this matter, complainant Brey waived his right to anonymity under 4-61dd, G.S., in an effort to establish his uniquely important interest in knowing the results of his effort to bring the malfeasance or nonfeasance of center or state officials to the attention of the respondent auditor.
14. It is found that while the language of 4-61dd(a), G.S., no longer expressly requires the reporting of the findings and conclusions of the attorney general to the party initiating the 4-61dd, G.S. complaint, nothing in 4-61dd, G.S., expressly precludes either the respondent auditor or the respondent attorney general from disclosing records or reports relating to a 4-61dd, G.S. investigation when requested by the complaining party.
15. The respondent attorney general conceded at the hearing on this matter that information from investigatory files created pursuant to 4-61dd, G.S., in a limited form have been disclosed to persons other than the governor or chief state's attorney, despite the preferred practice of not disclosing any information.
16. The respondent attorney general maintained that typically disclosure of limited information from such investigatory files was done to facilitate or effectuate a remedy under 4-61dd, G.S., and where disclosure is not attendant to the effectuation of a remedy, it occurs after due consideration of "certain factors".
17. The respondent attorney general conceded that with respect to the complainants' request for a copy of the report, consideration was given to the fact that complainant Brey was pursuing grievances arising from the circumstances which prompted his 4-61dd, G.S., complaint. Consequently, the respondent attorney general declined to provide a copy of the report during the pendency of complainant Brey's grievance matters, in accordance with 1-19b(b)(1), G.S.
18. It is found that in the spring of 1993 all pending grievance matters arising from the circumstances of the 4-61dd, G.S., complaint had either been adjudicated or otherwise terminated.
19. It is found, however, that the respondents continue to deny the complainants' request for a copy of the report.
Docket #FIC 93-205 and Docket #FIC 93-206 Page Four
20. Section 1-19(b)(13), G.S., gives a public agency discretion to withhold disclosure of information obtained pursuant to 4-61dd, G.S. Specifically, 1-19(b)(13) states that:
Nothing in the [Freedom of Information ("FOI") Act], shall be construed to require disclosure of ... records of an investigation or the name of an employee providing information under the provisions of section 4-61dd; ....
21. It is concluded that under the facts of this case the respondents have chosen to withhold disclosure of the report in accordance with the permissive exemption language of 1-19(b)(13), G.S.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is hereby dismissed.
2. The Commission urges the respondents to reconsider their decision to deny Mr. Brey a copy of the report. Connecticut's citizens cannot have faith or confidence in government agencies when a complainant comes forward to allege wrongdoing in government, and further places himself at risk by waiving his right to anonymity, only to have those agencies deny him access to the report containing the findings and conclusions of the investigation allegedly because of a senseless fear of the consequences in a now moot grievance proceeding. Under such circumstances the questionable decision to keep the report secret may lead to the general perception of a governmental cover-up.
Approved by Order of the Freedom of Information Commission at its special meeting of February 16, 1994.
Elizabeth A. Leifert
Acting Clerk of the Commission
Docket #FIC 93-205 and Docket #FIC 93-206 Page Five
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:
Mr. George Brey
AFSCME Local 1565
970 Flanders Road
Coventry, CT 06238
State of Connecticut, Auditors of Public Accounts;
State of Connecticut, Office of the Attorney General
c/o Sharon A. Scully, Esq.
Assistant Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT 06106
Elizabeth A. Leifert
Acting Clerk of the Commission