FREEDOM
OF INFORMATION COMMISSION
OF
THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final
Decision
Thomas Lally,
Complainant
against Docket
#FIC 1995-368
Executive Director, State of
Connecticut Board of Education
and Services for the Blind, and Special Projects
Coordinator, State of Connecticut, Board of
Education
and Services for the Blind,
Respondents October
9, 1996
The
above-captioned matter was heard as a contested case on April 25, 1996, at
which time the complainant and the respondents appeared 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. By letter dated September 25, 1995, the
complainant requested of the respondent director copies of a number of
documents.
3. By letter dated October 4, 1995, the
respondent director responded to the complainant’s September 25, 1995 request,
providing copies of some of the requested documents and declining to provide
others.
DOCKET #FIC 1995-368 PAGE
2
4. By letter of complaint dated October 12,
1995, and filed with this Commission on October 16, 1995, the complainant
alleged that the respondents violated the Freedom of Information (“FOI”) Act by
denying his September 25, 1995 request with respect to those records which were
not provided to him.
5. Specifically, the records requested and
still at issue are:
a. Itemized budgets for fiscal years 1991-
1994 inclusive, which describe the
individual payroll records for all staff
members employed by the respondent as
full-time, part-time and temporary
employees;
b. performance reviews;
c. all employee applications for employment of
all staff currently employed as permanent, part-time and temporary during the
aforementioned fiscal period;
d. verification of all employees’ education and
training; and
e. appraisals of employees’ performance.
6. It is found that the records identified in
paragraph 5, above, are public records within the meaning of §1-18a(d),
G.S.
7. The respondents claim that the records at
issue are exempt pursuant to (a) §1-19(b)(2),
G.S., which in pertinent part provides as follows:
Nothing in sections
1-15, 1-18a, 1-19 to 1-19b, inclusive, and 1-21 to 1-21k, inclusive, shall be
construed to require disclosure of …personnel or medical files and similar
files the disclosure of which would constitute an invasion of personal privacy.
and (b) §5-237,
G.S., which in pertinent part provides as follows:
DOCKET #FIC 1995-368 PAGE
3
Any employee in the
classified service shall have the right, at reasonable times during office
hours, to inspect his service ratings, as shown by the records of the
department of administrative services or of the department, agency or
institution in which such employee is employed.
8. The respondents also claim that they are
prohibited from disclosing the records at issue by virtue of §§1-20a(b)
and (c), G.S.
9. The law with respect to what constitutes an
invasion of privacy for purposes of the §1-19(b)(2),
G.S., exemption has been well established since December 1993 when the Supreme
Court issued its decision in Perkins v.
FOI Commission, 228 Conn. 158 (1993) and thereafter when the Supreme Court
issued its decision in Kureczka v. FOI
Commission, 228 Conn. 271 (1994) (which is particularly apt here because it
treats public employee employment applications).
10. In Perkins,
the court stated:
When the claim for
exemption involves §1-19(b)(2),
“[t]he plaintiffs must meet a twofold burden of proof. . . . First, they 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, they must show that disclosure of the records ‘would constitute
an invasion of personal privacy.’ ” Id.
At 168.
.
. .
[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. Id. at 175.
11. Although it is the respondents’ burden to
meet the Perkins twofold test, the
respondents did not meet their burden of proof. Indeed they did not even offer the records at issue for in camera
inspection by the Commission.
12. With respect to the requested records
described in paragraph 5a., above, it is found that itemized budgets do not
constitute personnel, medical or similar files within the meaning of §1-19(b)(2),
G.S., rather they are agency budgetary and payroll records which, it is found,
show the specifics of agency appropriations and expenditures.
DOCKET #FIC 1995-368 PAGE
4
13. With respect to all five categories of the
requested records described in paragraph 5, it is also found that such records
do pertain to legitimate matters of public concern and are not highly offensive
to a reasonable person.
14. It is therefore concluded that the records
identified in paragraph 5, above, are not exempt from disclosure pursuant to §1-19(b)(2),
G.S.
15. Sections 1-20a(b) and (c), G.S., provide in
pertinent part:
(b) Whenever a public agency receives a request
to inspect or copy records contained in any of its employees' personnel or
medical files and similar files and the agency reasonably believes that
the disclosure of such records would legally constitute an invasion of privacy,
the agency shall immediately notify in writing (1) each employee concerned,
provided such notice shall not be required to be in writing where impractical
due to the large number of employees concerned and (2) the collective
bargaining representative, if any, of each employee concerned. Nothing herein shall require an agency to
withhold from disclosure the contents of personnel or medical files and similar
files when it does not reasonably believe that such disclosure would
legally constitute an invasion of personal privacy. [Emphasis added.]
(c) A public agency which has provided notice
under subsection (b) of this section shall disclose the records requested
unless it receives a written objection from the employee concerned or the
employee's collective bargaining representative. . . . Upon the filing of an
objection as provided in this subsection, the agency shall not disclose the
requested records unless ordered to do so by the freedom of information
commission pursuant to section 1-21i.
Failure to comply with a request to inspect or copy records under this
section shall constitute a denial for the purposes of section 1-21i.
16.
In light of the Perkins, Kureczka and other cases, it is found
that the respondents could not “reasonably believe that the disclosure of [the
requested] . . . records would legally constitute an invasion of privacy”
within the meaning of §1-20a(b),
G.S.
17.
Consequently, it is concluded that the provisions of §§1-20a(b)
and 1-20a(c), G.S., should not have been invoked in this case and do not shield
the respondents from their responsibility to comply with the public disclosure
provisions of §§1-19
and 1-15, G.S.
DOCKET #FIC 1995-368 PAGE
5
18.
With respect to the requested records described in paragraph 5b. and
5e., above, however, it is found that such records constitute “service ratings”
within the meaning of §5-237,
G.S., and consequently they are exempt from public disclosure pursuant to §1-19(a),
G.S., as construed by the Supreme Court in Personnel
Director v. FOI Commission, 214 Conn. 312 (1990).
19.
It is therefore concluded that the respondents violated the provisions
of §§1-19(a)
and1-15(a), G.S., by failing to promptly provide to the complainant copies of
the records described in paragraphs 5a., 5c. and 5d., above.
The following order by
the Commission is hereby recommended on the basis of the record concerning the
above-captioned complaint.
1. The respondents shall forthwith provide to
the complainant a copy of the records described in paragraphs 5a., 5c. and 5d.
of the findings, above.
2. Henceforth the respondents shall strictly
comply with the provisions of §§1-15(a),
1-19(a) and 1-20a(b) and (c), G.S.
Approved by Order of the Freedom of Information
Commission at its regular meeting of October 9, 1996.
__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
Docket # FIC 1995-368 Page
6
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:
Thomas Lally
PO Box
674
Storrs, CT 06268
Executive Director, State of Connecticut Board
of Education and Services for the Blind, and Special Projects Coordinator,
State of Connecticut, Board of Education and Services for the Blind
c/o
Ralph E. Urban, Esq.
Assistant Attorney General
110 Sherman Street
Hartford, CT 06105
__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission