FREEDOM OF INFORMATION
COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by Final Decision
Bruce Bellm, Kendres Lally,
Philip Cater, Peter Hughes,
Carol Northrop, Brad
Pellissier, Todd Higgins and Bruce Garrison,
Complainants
against Docket
#FIC 95-81
State of Connecticut, Office
of Protection and Advocacy for Persons
with Disabilities, Sharon
Story and Marlene Fein,
Respondents March 13, 1996
The above-captioned matter was heard as a contested
case on October 27 and November 27, 1995, at which times the complainants and
the respondents appeared, stipulated to certain facts and presented testimony,
exhibits and argument on the complaint.
At the October 27, 1995 hearing Sharon Story and Marlene Fein, whose
records are some of the records at issue, were granted party status, and AFSCME
Local 2663 was granted intervenor status limited to presenting argument on the
complaint.
After consideration of the entire record, the
following facts are found and conclusions of law are reached:
1. The
respondent office is a public agency within the meaning of 1-18a(a), G.S.
2. By
memorandum dated March 15, 1995, the complainants requested that the respondent
office provide them with access to inspect and copy the following records pertaining
to and used during the selection process for the hiring of the Assistant
Director of the Abuse Investigation Division (hereinafter "Assistant
Director"):
a) a
description of the selection process including all categories/factors used to
evaluate candidates;
b) the
weights of categories/factors if applicable;
c) the
questions asked in each interview;
d) a
description of the rating system used to rate candidates;
Docket #FIC 95-81 Page
2
e) by
category/factor, the score or rating of each candidate;
f) the
rank order of the candidates after each phase of the selection process;
g) any
notes made by individual hiring committee members;
h) any
and all documents utilized during the selection process;
i) supervisor's
comments regarding individual candidates;
j) the
criteria utilized by the hiring committee to determine which candidates
qualified for the final interview; and
k) the
"matrix" utilized during the selection process.
3. Having
failed to receive a reply to their March 15, 1995 request the complainants, by
letter dated March 23, 1995, filed this appeal with the Commission on March 27,
1995.
4. It is
found that on December 16, 1994 and January 6, 1995 the complainants had made
two requests for records to the respondent office that were similar to the
March 15, 1995 request, now at issue in this appeal.
5. It is
found that the respondent office responded to the December 16, 1994 and January
6, 1995 requests, described in paragraph 4, above, by letter dated January 11,
1995, and at that time provided the complainants with some of the requested
records but denied access to others.
6. It is
found that the respondent office maintains the following records which it has
not provided to the complainants, and which are now at issue in this appeal:
a) written
questions asked individually of the four candidates during the second round of
interviews;
b) handwritten
notes of the selection committee members made during interviews on note pads
and on question sheets;
c) supervisor's
comments contained on candidates' prior performance ratings;
Docket #FIC 95-81 Page
3
d) Melanie
Haber's handwritten notes regarding discussions with supervisors;
e) a
work-sheet or matrix (consisting of three pages, the first page having been
created after the March 15, 1995 request, and the remaining pages having been
in existence before such request) containing candidates names, categories or
factors being assessed pertinent to the selection process and numerical scores
assigned to each candidate;
f) respondents
Story and Fein's performance evaluations, attendance records and Department of
Administrative Services ("DAS") score and rank; and
g) a
December 13, 1994 memorandum from Jim McGaughey, Executive Director of the
respondent office to Lauren Schuck, Affirmative Action Officer outlining the
selection process and prepared in response to a discrimination complaint filed
against the respondent office by an unsuccessful candidate.
7. It is
found that the requested records now at issue and described in paragraph 6,
above, (hereinafter "requested records") are public records within
the meaning of 1-18a(d) and 1-19(a), G.S.
8. The
respondent office contends that all of the requested records are exempt from
disclosure pursuant to 1-19(b)(6), 5-225 and 5-237, G.S.; that the
records described at paragraph 6a) through 6e), above, are also exempt pursuant
to 1-19(b)(1), G.S.; that the records described in paragraph 6a) through
through 6f), above, are also exempt pursuant to 1-19(b)(2), G.S.; and that
the December 13 memorandum, described in paragraph 6g), above, is unresponsive
to the request and exempt from disclosure pursuant to 1-19(b)(2) and
1-19(b)(4), G.S.
9. It is
found that the complainants were unsuccessful candidates for promotion to the
position of Assistant Director.
10. It is
found that the respondent Story, the successful candidate, and respondent Fein,
an unsuccessful candidate objected on January 13 and 19, 1995, respectively, to
the release of records pertaining to them following the respondent office's
timely notification that their performance appraisals, leave and attendance
records and DAS score and rank records were requested by the complainants.
Docket #FIC 95-81 Page 4
11. Section
1-19(b)(6), G.S., permits the nondisclosure of test questions and other
examination data used to administer an examination for employment.
12. It is
concluded that the written questions asked of candidates during the
examination, as described in paragraph 6a, above, are test questions used to
administer an examination for employment within the meaning of 1-19(b)(6),
G.S., and are permissibly exempt from public disclosure.
13. With
respect to the selection committee members' handwritten notes, the supervisor's
comments, Haber's notes, the matrix and DAS score and rank, described in
paragraphs 6b) through 6f), inclusive, above, it is found that such records
constitute "papers, markings and other items used in determining the final
earned ratings" within the meaning of 5-225.
14. Section
5-225, G.S., in relevant part, gives those who take state employment
examinations the right to inspect certain examination records used in the
determination of a final earned rating on such employment examinations.
15. Section
5-237(a), G.S., in relevant part, gives any state employee in the classified
service the right to inspect their employment service ratings.
16. It is
concluded that under the specific facts of this case the selection committee
members' notes, comments, matrix, and the DAS score and rank, compiled and used
for the purpose of determining the final earned rating in the examination for
promotion to Assistant Director are disclosable only to the candidate pursuant
to Personnel Director v. FOIC, 214 Conn. 312 (1990).
17. With
respect to the respondents Story and Fein's performance evaluations and
attendance records, as described in paragraph 6f) above, it is found that such
records constitute a personnel file within the meaning of 1-19(b)(2), G.S.
18. Under
Perkins v. FOI Commission, 228 Conn. 158 (1993) the test for exemption from
disclosure under 1-19(b)(2), G.S., consists of two parts and requires that
those claiming exemption establish that:
the files in question are within the
categories of files protected by the exemption, that is, personnel, medical or
'similar' files. Second, they must show
that disclosure of the records 'would constitute an invasion of personal
privacy.
Docket #FIC 95-81 Page
5
19. The Court
in Perkins further instructs:
[T]he invasion of personal privacy
exception of 1-19(b)(2) precludes disclosure, therefore, only when the
information sought by a request does not pertain to legitimate matters of
public concern and is highly offensive to a reasonable person. [Emphasis
added.]
20. It is
found that disclosure of the requested performance evaluations and attendance
records would not be highly offensive to a reasonable person.
21. Further,
it is found that the information contained in public employees' performance
evaluations and attendance records pertains to legitimate matters of public
concern.
22. It is
therefore concluded that the requested performance evaluations and attendance
records are not exempt from disclosure pursuant to 1-19(b)(2),
1-19(b)(6), 5-225 and 5-237, G.S.
23. At the
request of the respondent office, following the hearing on this matter an in
camera inspection was conducted on the December 13, 1994 memorandum, described
in paragraph 6g) above.
24. It is
found that the December 13, 1994 memorandum describes the selection process and
the criteria used for final selection of the Assistant Director as recalled by
the respondent office's Executive Director.
25. It is
also found that the December 13, 1994 memorandum is responsive to the
complainants' March 1995 request for informatiom pertinent to the selection
process.
26. It is
further found that the December 13, 1994 memorandum does not constitute a
personnel or similar file within the meaning of 1-19(b)(2), G.S.
27. Even if
the December 13, 1994 memorandum could be considered a personnel or similar
file, it is found that disclosure of the information contained therein would
not be highly offensive to the reasonable person. It is further found that the method and criteria used to select
public employees pertain to legitimate matters of public concern.
28. It is
therefore concluded that the December 13, 1994 memorandum is not exempt from
disclosure pursuant to 1-19(b)(2), G.S.
Docket #FIC 95-81 Page
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29. Section
1-19(b)(4), G.S., permits the nondisclosure of records pertaining to strategy
and negotiations with respect to pending claims or pending litigation during
the pendency of such claim or litigation.
30. It is
found that the December 13, 1994 memorandum does not pertain to strategy or
negotiations within the meaning of 1-19(b)(4), G.S.
31. It is
therefore concluded that 1-19(b)(4), G.S., does not exempt the memorandum
from disclosure.
32. In light
of the conclusions set forth in paragraphs 12 and 16, above, it is not
necessary to address the respondents further claim of exemption as to
1-19(b)(1), G.S.
33. It is
concluded that the respondent office did not violate the FOI Act when it failed
to disclose the records described at paragraph 6a), 6b), 6c), 6d), 6e) and the
DAS score and rank, described in paragraph 6f).
34. However,
it is concluded that the respondent office violated the FOI Act when it failed
to disclose the performance evaluations and attendance records, as described in
paragraph 6f) and the December 13, 1994 memorandum, as described in paragraph
6g), above, to the complainants.
The following order by the Commission is hereby
recommended on the basis of the record concerning the above-captioned
complaint:
1. The
respondent office shall within seven days of the receipt of the notice of the
final decision in this matter provide the complainants with a copy of the
requested performance evaluations, as described in paragraph 6f) and the
December 13, 1994 memorandum, as described in paragraph 6g), of the findings,
above.
2. The
complaint is hereby dismissed with respect to the remaining records requested.
Approved by Order of the
Freedom of Information Commission at its regular meeting of March 13, 1996.
Elizabeth A. Leifert
Acting Clerk of the
Commission
Docket #FIC 95-81 Page
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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:
Bruce Bellm, Kendres Lally,
Philip Cater, Peter Hughes, Carol Northrop, Brad Pellissier, Todd Higgins and
Bruce Garrison
c/o Bruce Bellm
117 Spring Hill Road
Storrs, CT 06268
State of Connecticut, Office
of Protection and Advocacy for Persons with Disabilities
c/o Susan Quinn Cobb, Esq.,
Assistant Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120
Sharon Storey and Marlene
Fein
AFSCME, Council #4
c/o Jason Cohen, Esq.
J. William Gagne &
Associates
1260 Silas Deane Highway
Wethersfield, CT 06109
Elizabeth A. Leifert
Acting Clerk of the Commission