Freedom of Information Commission

of the State of Connecticut

 

 

In the Matter of a Complaint by                                    Final Decision

 

Francine Cimino,

 

                        Complainant

 

            against                                                              Docket #FIC 1996-056

 

Chief of Police, Glastonbury Police

Department; Town Manager, Town of

Glastonbury; and Town of Glastonbury,

 

                        Respondents                                         September 25, 1996

 

 

            The above-captioned matter was heard as a contested case on June 20, 1996, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  At the hearing on this matter, Dennis Daigneault requested to be made a party respondent to this appeal, which request was granted by the undersigned hearing officer.

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

            1.  The town respondents are public agencies within the meaning of §1-18a(a), G.S.

 

            2.  By letter dated February 9 and received February 13, 1996, the complainant, a Glastonbury police officer, requested that the respondent chief provide her with a copy of the internal investigation involving herself and respondent Daigneault.

 

            3.  By letter dated and filed February 20, 1996, the complainant appealed to the Commission alleging that the respondent chief violated the Freedom of Information (“FOI”) Act by failing to provide her with the requested internal investigation report.

 

4.  It is found that the respondent chief maintains an internal investigation report concerning allegations of sexual harassment involving the complainant and respondent Daigneault, identified as case no. 93-18749 (hereinafter “report”).

 

5.  It is found that the report is a public record within the meaning of §§1-18a(d) and 1-19(a), G.S.

 

6.  It is found that the respondent chief forwarded the complainant’s request to the respondent town manager, who received it on February 23, 1996.

 

7.  It is found that by letter dated February 27, 1996, the Director of Human Resources for the Town of Glastonbury (hereinafter “the town”) informed the complainant that respondent Daigneault had been notified of her request, in accordance with §1-20a(b), G.S., and that he had a seven day period within which to file an objection to disclosure of the report.

 

8.  It is found that by letter dated February 28, 1996, and received by the respondent town manager on March 1, 1996, respondent Daigneault objected to the release of the report to the complainant.

 

9.  It is found that by letter dated March 1, 1996, the town Director of Human Resources informed the complainant that because an objection to her request had been filed by respondent Daigneault, the town could not comply with her request pursuant to §1-20a(b), G.S.

 

            10.  Sections 1-20a(b) and (c), G.S., in relevant part, provide:

 

“(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.

 

(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, if any, within seven business days from the receipt by the employee or such collective bargaining representative of the notice or, if there is no evidence of receipt of written notice, not later than nine business days from the date the notice is actually mailed, sent, posted or otherwise given.  Each objection filed under this subsection shall be on a form prescribed by the public agency, which shall consist of a statement to be signed by the employee or the employee’s collective bargaining representative, under the penalties of false statement, that to the best of his knowledge, information and belief there is good ground to support it and that the objection is not interposed for delay.  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.” … [Emphasis added.]

 

11.  The town respondents do not object to the disclosure of the report, but maintain that they were not permitted to release it after an objection had been filed pursuant to §1-20a(b), G.S.

 

            12.  It is found, however, that the town failed to provide a prescribed objection form along with their notification to respondent Daigneault, as mandated by §1-20a(c), G.S.

 

            13.  It is therefore concluded that the respondents did not properly invoke the mandatory stay provisions of §1-20a(c), G.S.

 

            14.  The respondent Daigneault maintains that the report is exempt from disclosure pursuant to §§1-19(b)(2) and 1-19(b)(3)(G), G.S., and requested that his counsel be granted limited access to the report, which was submitted for in camera inspection, because he claims that such access is necessary to prove the above-claimed exemptions.

 

            15.  It is indeed ironic that respondent Daigneault now seeks access for his own purposes to the very document he wishes to prevent the complainant from obtaining.

 

            16.  It is found that respondent Daigneault, who resigned from the town police department after the commencement of the subject internal investigation, was questioned concerning the allegations in the report and was aware of the nature of the allegations made against him in the subject report.

 

            17.  Nonetheless, provision is hereby granted to respondent Daigneault’s counsel, after execution of a protective order prohibiting him from disclosing the contents of the report to anyone during the pendency of the case and until further order by the Commission, to inspect the subject record held in camera by the Commission.

 

            18.  With respect to the claimed exemptions, §1-19(b)(2), G.S., permits the nondisclosure of “personnel or medical and similar files the disclosure of which would constitute an invasion of personal privacy.”

 

            19.  The two-part test for the application of the §1-19(b)(2), G.S., exemption first requires a finding that the record at issue constitutes a personnel, medical or similar file and, if so, then a finding that disclosure would constitute an invasion of personal privacy.  Disclosure only constitutes an invasion of personal privacy when the information sought does not pertain to a legitimate matter of public concern and is highly offensive to a reasonable person.  Perkins v. Freedom of Information Commission, 228 Conn. 158 (1993).

 

            20.  It is found that the subject report is similar to a personnel file with respect to respondent Daigneault.

 

            21.  It is found that the investigation of allegations of misconduct against a police officer is a legitimate matter of public concern.  Consequently, it is not necessary for the Commission to consider whether disclosure of the report would be highly offensive to a reasonable person.

 

            22.  Accordingly, it is concluded that the report is not exempt from disclosure pursuant to §1-19(b)(2), G.S.

 

            23.  Section 1-19(b)(3)(G), G.S., permits the nondisclosure of:

 

records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of uncorroborated allegations subject to destruction pursuant to section 1-20c.  [Emphasis added.]

 

            24.  Section 1-20c, G.S., provides:

 

Except for records the retention of which is otherwise controlled by law or regulation, records of law enforcement agencies consisting of uncorroborated allegations that an individual has engaged in criminal activity shall be reviewed by the law enforcement agency one year after the creation of such records.  If the existence of the alleged criminal activity cannot be corroborated within ninety days of the commencement of such review, the law enforcement agency shall destroy such records.

 

            25.  It is found that the subject internal investigation report was compiled in connection with the investigation of alleged violations of administrative regulations and civil sexual harassment statutes and was not compiled in connection with the detection or investigation of crime.

 

            26.  It is found that because he resigned from his employment with the town police department, respondent Daigneault was never charged with, or disciplined for, the allegations made in the report.

 

            27.  It is further found that even if the report had been compiled in connection with the detection or investigation of crime, the allegations contained within the report were corroborated.

 

            28.  It is therefore concluded that the subject internal investigation report is not exempt from disclosure pursuant to §1-19(b)(3)(G), G.S.

 

            29.  It is concluded that the respondents violated §1-19(a), G.S., by failing to promptly provide the complainant with a copy of the requested internal investigation report.

 

            The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

            1.  The town respondents shall immediately provide the complainant with a copy of the requested internal investigation report, free of charge.

 

            2.  Henceforth, the respondents shall strictly comply with the requirements of §§1-19(a) and 1-20a(c), G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 25, 1996.

 

 

 

                                                                                    __________________________

                                                                                    Elizabeth A. Leifert

Acting Clerk of the Commission

 

 

 

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:

 

Francine Cimino

41 Wapping Avenue

South Windsor, CT 06074

 

 

Chief of Police, Glastonbury Police Department; Town Manager, Town of Glastonbury; and Town of Glastonbury,

c/o  William S. Rogers, Esq.

Tyler, Cooper & Alcorn

CityPlace 35th Floor

Hartford, CT 06103-3488

 

 

Christopher R. Stone, Esq.

Chadwick, Libbey, Szilagyi & Stone

555 Franklin Avenue

Hartford, CT 06114

 

 

                                                                                    __________________________

                                                                                    Elizabeth A. Leifert

                                                                                    Acting Clerk of the Commission