FREEDOM OF INFORMATION
COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by Final Decision
Chris Powell and Journal
Inquirer,
Complainants
against Docket
#FIC 95-125
Commissioner, State of
Connecticut, Department of Social Services,
Respondent March 13, 1996
The above-captioned matter was heard as a contested
case on November 8, 1995, at which time the complainants and the respondent
appeared and presented testimony, exhibits and argument on the complaint. Tristram Carpenter, a service representative
from the American Federation of State, County and Municipal Employees
("AFSCME"), Connecticut Council 4, was present on behalf of the
disciplined employees who are the subjects of the records at issue in this case. However, Mr. Carpenter, indicated that he
was not seeking party or intervenor status for those employees.
One of the subject employees, who was identified only
as "John Doe" during the hearing on the contested case, was
represented by Attorney Richard Conti.
There was a conditional grant of intervenor status to "John
Doe" in this case by the hearing officer, provided the actual name of the
employee was submitted to the Commission by Mr. Conti in accordance with its in
camera procedure. Attorney Conti failed
to provide the Commission with his client's name as agreed.
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. It
is found that by letter dated March 23, 1995, the complainants requested access
to the respondent's records identifying and discussing employees who misused
their access to computerized government records documenting the salary of
Kenneth Decko, the president of the Connecticut Business and Industry
Association, and who were disciplined or resigned as a result of their
misconduct.
Docket #FIC 95-125 Page
Two
3. It
is found that by letter dated April 3, 1995, the respondent acknowledged
receipt of the complainants' records request, and informed them that pursuant
to 1-20a(b) and 1-20a(c), G.S., they intended to notify the subject
employees ("disciplined employees"), and then await a reply. The respondent further informed the
complainants that existing records ("disciplinary records"), had to
be reviewed by the attorney general's office before a decision could be made
about disclosure.
4. By
letter of complaint dated April 13, 1995, and filed with this Commission on
April 17, 1995, the complainants alleged that the respondent failed to comply
with their records request.
5. It
is found that the disciplinary records are public records within the meaning of
1-18a(d) and 1-19(a), G.S.
6. It
is found that five of the respondent's employees were disciplined in connection
with the unauthorized access and use of Decko's salary information.
7. The
respondent claims that the names and identities of the disciplined employees,
as well as the contents of any disciplinary records, are exempt from disclosure
as an invasion of the personal privacy of the subject employees, in accordance
with the provisions of 1-19(b)(2), G.S.
8. Specifically,
the respondent maintains that the names and other identifying information of
the disciplined employees are contained in "similar files" within the
meaning of 1-19(b)(2), G.S.
9. The
respondent contends further that the disciplined employees were notified of the
complainants' records request and objected to disclosure.
10. The
disciplined employees did not appear at the hearing on this matter.
11. Section
1-19(b)(2), G.S., provides that disclosure shall not be required of
"personnel, medical or similar files, the disclosure of which would
constitute an invasion of personal privacy."
12. It
is found that the respondent conducted an investigation that produced probable
cause to proceed with pre-disciplinary proceedings against five of its
employees, and ultimately four employees received suspensions from employment,
while a fifth employee was terminated from employment.
Docket #FIC 95-125 Page
Three
13. It
is found that the discipline records generated from the respondent's
investigation into the Decko complaint are "similar files" within the
meaning of 1-19(b)(2), G.S.
14. Perkins
v. FOI Commission, 228 Conn. 158 (1993), sets forth the standard for the
exemption contained in 1-19(b)(2), G.S.
The claimant has a twofold burden of proof:
First, [he] must establish that the
files in question are within the categories of files protected by the
exemption, that is, personnel, medical or 'similar' files. Second, [he] must show that disclosure of
the records 'would constitute an invasion of personal privacy.'
15. 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.]
16. It is
found that documentation of public employees' misconduct, the actions or
activity constituting such misconduct, and the discipline, if any, meted out,
pertain to legitimate matters of public concern.
17. It is
found further that the respondent failed to prove that disclosure of the
disciplinary records would be highly offensive to a reasonable person.
18. Further,
no evidence was presented to support the respondent's claims that the names and
identities of the disciplined public employees are exempt from disclosure under
1-19(b)(2), G.S.
19. It
is therefore concluded that disclosure of the disciplinary records would not
constitute an invasion of personal privacy of the disciplined employees, within
the meaning of 1-19(b)(2), G.S.
Docket #FIC 95-125 Page
Four
20. The
respondent further claims that because the discipline that was meted out
resulted from negotiation with the collective bargaining representatives of the
disciplined employees, the records sought are necessarily records of collective
bargaining within the meaning of 1-19(b)(9), G.S.
21. Section
1-19(b)(9), G.S., provides that disclosure is not required of records, reports
and statements of strategy or negotiations with respect to collective
bargaining.
22. The
American Heritage Dictionary, Second College Edition, defines "collective
bargaining" as "[n]egotiation between the representatives of
organized workers and their employer ... to determine wages, hours, rules, and
working conditions."
23. It
is found that the respondent and the disciplined employees negotiated an
agreement for discipline whereby the disciplined employees agreed that they
would accept more severe disciplinary action, and forego any challenge to the
discipline meted out, in exchange for the respondent's agreement not to pursue
criminal prosecution, or release their names.
24. It
is found that while a public employee is free to bargain over
employment-related issues, including disciplinary issues, a public agency may
not bargain away the public's right to know under Connecticut's Freedom of
Information ("FOI") Act.
Moreover, neither 1-19(b)(2), nor 1-19(b)(9), G.S., were
intended to shield the misconduct of public employees in the performance of
their duties.
25. In
this case, it is found that the names and identities of the five disciplined
employees do not constitute "records, reports or statements of strategy or
negotiations with respect to collective bargaining," within the meaning of
1-19(b)(9), G.S., and consequently are not exempt from public disclosure
under that section of the FOI Act.
26. It
is further found that the disciplinary records did not result from
"strategy or negotiations with respect to collective bargaining,"
within the intended meaning of 1-19(b)(9), G.S., and consequently are not
exempt from public disclosure under that section of the FOI Act.
27. Accordingly,
under the facts of this case, the respondent has failed to prove the
applicability of any exemption to disclosure of the disciplinary records at
issue.
Docket #FIC 95-125 Page
Five
28. It
is therefore concluded that the respondent's failure to provide the
complainants with copies of the disciplinary records is a violation of
1-15 and 1-19(a), G.S.
The following order by the Commission is hereby
recommended on the basis of the record concerning the above-captioned
complaint:
1. Forthwith,
the respondent shall provide the complainants with a copy of the requested
disciplinary records, as more fully described in paragraph 2 of the findings,
above, free of charge, and furnish to the complainants an affidavit stating
that the records provided constitute the only records responsive to the
complainants' request.
2. In
complying with paragraph 1 of this order, the respondent may redact the
identities and personally identifiable information of individuals who provided
statements, but were not disciplined, in connection with the Decko matter.
3. Henceforth,
the respondent shall strictly comply with the public records requirements set
forth in 1-15 and 1-19(a), G.S.
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 95-125 Page
Six
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:
Chris Powell and Journal
Inquirer
306 Progress Drive
P.O. Box 510
Manchester, CT 06045-0510
Commissioner
State of Connecticut
Department of Social Services
25 Sigourney Street
Hartford, CT 06106-5033
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