FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on January 16, 1997, at which time the complainant and the respondent 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 respondent is a public agency within the meaning of Section 1-18a(a), G.S.

2. It is found that by letters dated September 2, 1996, the complainant requested of the respondent copies of the following documents:

a. all evaluations of the complainant by staff members and other persons;
b. all notes received by the respondent in support of said evaluations;
c. all notes of interviews conducted by council subcommittee members with respect to said evaluations;
d. all correspondence received or transmitted with respect to said evaluations, including correspondence referenced in the draft evaluation presented to the complainant on August 8, 1996;
e. the final town manager’s evaluation, the subject of which was the complainant; and
f. the letter submitted by Mrs. Tuttle to the town council on February 12, 1996, regarding the complainant’s performance of renovations to the senior center.

3. By letter dated September 9, 1996, and filed with the Commission on September 11, 1996, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information Act by denying the complainant access to the documents described at paragraph 2 of the findings, above.

4. It is found that the documents described at paragraphs 2b and 2c, above, have never existed, that the documents described at paragraphs 2d and 2f, above, were furnished belatedly to the complainant, and that the document described at paragraph 2e, above, was furnished to the complainant in a timely manner. Accordingly, the only records remaining at issue are those described at paragraph 2a, above.

5. The respondent contends that the evaluations at issue are exempted from mandatory disclosure by § 1-19(b)(1), G.S.

6. Section 1-19(b)(1), G.S., states that nothing in the Freedom of Information Act shall be construed to require disclosure of:

preliminary drafts and notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure….

7. Section 1-19(c), G.S., however, provides in relevant part:

Notwithstanding the provisions of subdivisions (1) and (16) of subsection (b) of this section, disclosure shall be required of (1) interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency.…

8. It is found that each evaluation at issue constitutes a recommendation or report "comprising part of the process by which governmental decisions and policies are formulated," and therefore are not exempt from disclosure under § 1-19(b)(1), G.S.

9. The respondent also contends that the evaluations are exempted from mandatory disclosure by § 1-19(b)(2), G.S., as "personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy."

10. It is found that the evaluations at issue constitute personnel files within the meaning of § 1-19(b)(2), G.S.

11. The respondent does not claim that disclosure of the evaluations at issue would constitute an invasion of the personal privacy of the subject of those evaluations. Rather, the respondent argues that such disclosure would constitute an invasion of the privacy of the evaluators since they were promised that their evaluations of the complainant would be kept confidential.

12. It is concluded, however, that the reference to invasion of personal privacy in § 1-19(b)(2), G.S., relates only to the subject of the personnel or medical file or similar file at issue.

13. It is also concluded that in determining whether the § 1-19(b)(2), G.S., personal privacy exemption is applicable, the appropriate test is that set forth in Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993). The test requires that two elements be met: first, that the information sought does not pertain to legitimate matters of public concern, and second, that such information is highly offensive to a reasonable person.

14. It is found that the information contained in the evaluations at issue pertains to legitimate matters of public concern.

15. It is also found that the information contained in the evaluations at issue is not highly offensive to a reasonable person.

16. Furthermore, § 1-19b(a), G.S., provides in relevant part:

Sections … 1-19 to 1-19b, inclusive … shall be … construed as requiring each public agency to disclose information in its personnel files… to the individual who is the subject of such information.

17. Consequently, notwithstanding the respondent’s claims to exemption under § 1-19(b)(1) and (2), G.S., it is concluded that the evaluations at issue are public records subject to mandatory disclosure pursuant to § § 1-19(a) and 1-19b(a), G.S.

18. It is therefore concluded that the respondent violated § § 1-19(a) and 1-15(a), G.S., by failing to provide the complainant with a copy of the evaluations more fully described in paragraph 2a of the findings, above.

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

1. The respondent shall forthwith provide the complainant with a copy of the evaluations described in paragraph 2a of the findings, above.

2. The respondent is cautioned not to give assurances of confidentiality concerning public records in circumstances where such assurances may be contrary to the Freedom of Information Act.

Approved by Order of the Freedom of Information Commission at its regular meeting of March 26, 1997.

__________________________
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:

John B. Harkins
96 Hunter Road
PO Box 683
Tolland, CT 06084

Chairman, Tolland Town Council
c/o Dennis J. O’Brien, Esq.
PO Box 699
Willimantic, CT 06226

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC1996-421/FD/eal/04041997