FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
FINAL DECISION
Docket #FIC 1996-322
May 28, 1997
In the Matter of a Complaint by Carolyn Moreau and The
Hartford Courant, Complainants
against
Chief of Police, Southington Police Department; and Susan
Williams Respondents
The above-captioned matter was heard as a contested case on January 13, 1997 and February 26, 1997, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. The caption has been corrected and restated to conform with the granting of party status to Susan Williams as a respondent.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent Chief of Police, Southington Police Department (the "respondent police chief") is a public agency within the meaning of § 1-18a(a), G.S.
2. By letter dated July 23, 1996, the complainants requested of the respondent police chief access to each document in the personnel file of the respondent Williams, with the exception of documents relating exclusively to medical information.
3. By letter dated July 29, 1996, the respondent police chief denied the complainants access to the requested personnel file.
4. Thereafter, on July 30, 1996, the respondent Williams submitted an objection to disclosure to the Southington Police Department.
5. By letter filed on August 5, 1996, the complainants appealed to the Commission alleging that the respondent police chief violated the Freedom of Information ("FOI") Act by denying the complainants their right to inspect the requested records.
6. Section 1-19(a), G.S., states in pertinent part:
all records maintained or kept on file by any public agency…shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records….
7. Section 1-20a(b), G.S., also states in pertinent part:
Whenever a public agency receives a request to inspect or copy records contained in any of its employees' personnel or medical 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 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.
8. Section 1-20a(c), G.S., further provides in pertinent part:
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....Each objection filed under this subsection shall [contain]…a statement...that...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….
9. Following the January 13, 1997 hearing in this matter, the respondent police chief submitted an index of the requested records and the respondent Williams submitted a letter narrowing the scope of her objection to disclosure. Based upon these documents, at the February 26, 1997 hearing, 107 records were made public by agreement of the parties. These records were the records numbered on the index as 22, 24, 25, 27, 28, 29, 30, 31, 32, 50, 51, 52, 56, 61, 88, 89, 90, 91, 92 (with the credit card number redacted), 93, 94, 95 (with the credit card number redacted), 96, 105, 106, 109, 110, 111, 112, 113, 114, 115, 116, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 205, 215, 216, 217, 218, 219, and 252.
10. At the February 26, 1997 hearing, the complainants requested the imposition of civil penalties and also that the Commission determine the status of records claimed to be medical files, although medical information was excluded from the scope of records sought by the complainants. As a result, the legal status of 236 records remained to be determined by the Commission.
11. The Commission takes administrative notice of its final decisions in FIC Docket #s. 1995-59 and 1996-159.
12. It is found that the 107 records described in paragraph 9, above, are not exempt from public disclosure by federal law or state statute and that by virtue of Perkins v. FOI Commission, 228 Conn. 158 (1993) (see below), the respondent police chief could not reasonably have believed that disclosure of such records would legally constitute an invasion of personal privacy for purposes of § 1-21a(b), G.S.
13. Therefore, it is concluded that the failure of the respondent police chief to provide the complainants with prompt access to the 107 records described in paragraph 9, above, violated the provisions of § 1-19(a), G.S.
14. With respect to the 236 records that remain at issue, the respondent police chief contends that:
a. certain records are exempt personnel or medical files, pursuant to § 1-19(b)(2), G.S. (the respondent Williams joins in this claim);
b. certain records are exempt records of law enforcement agencies, pursuant to § 1-19(b)(3), G.S.;
c. as a result of pending civil litigation in U.S. District Court, certain records are exempt records pertaining to strategy and negotiations with respect to pending claims or pending litigation, pursuant to § 1-19(b)(4), G.S.;
d. as a result of two pending grievance proceedings, certain records are exempt records pertaining to strategy and negotiations with respect to collective bargaining, pursuant to § 1-19(b)(9), G.S.; and
e. certain records are exempt attorney-client communications, pursuant to § 1-19(b)(10), G.S.
15. On March 6, 1997, the respondent police chief submitted the remaining records at issue, together with an revised index, for an in camera inspection.
16. It is found that the requested records are public records within the meaning of § § 1-18a(d) and 1-19(a), G.S.
17. Section 1-19(b)(2), G.S., exempts from mandatory public disclosure "personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy."
18. With respect to the respondents’ § 1-19(b)(2), G.S., claim identified in paragraph 14a, above, it is found that 32 records examined in camera constitute personnel or similar files, pursuant to § 1-19(b)(2), G.S.
19. It is found that disclosure of two personnel records examined in camera (records numbered 213, and 222) do not pertain to matters of legitimate public concern and would be highly offensive to a reasonable person. It is therefore concluded that disclosure of the two personnel records numbered 213 and 222 would constitute an invasion of personal privacy pursuant to the Perkins case, above, and such records are therefore exempt from mandatory public disclosure pursuant to § 1-19(b)(2), G.S.
20. It is found that, with the exception of the three personnel records identified in paragraph 19, above, the remaining 29 personnel records examined in camera (records numbered 6, 7, 13, 14, 15, 16, 23, 48, 53, 54, 55, 57, 58, 59, 60, 97, 98, 99, 100, 101, 102, 103, 104, 107, 108, 120, 140, 220, and 221) pertain to legitimate matters of public concern. It is therefore concluded that the disclosure of such records would not constitute an invasion of personal privacy pursuant to § 1-19(b)(2), G.S.
21. It is also found, pursuant to § 1-19(b)(2), G.S., that 78 records examined in camera constitute medical or similar files (records numbered 207, 211, 212, 213, 214, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 298, 299, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 311, 312, 313, 314, 315, 316, 317, 318, 319, 320, 321, 322, 323, 324, 325, 326, 327, 328, 329, 330,331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 342, and 343).
22. Section 1-19(b)(3), G.S., exempts from mandatory public disclosure:
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 (A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known, (B) signed statements of witnesses, (C) information to be used in a prospective law enforcement action if prejudicial to such action, (D) investigatory techniques not otherwise known to the general public, (E) arrest records of a juvenile, which shall also include any investigatory files, concerning the arrest of such juvenile, compiled for law enforcement purposes, (F) the name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof or (G) uncorroborated allegations subject to destruction pursuant to section 1-20c….
23. With respect to the claim of the respondent police chief pursuant to § 1-19(b)(3), G.S., identified in paragraph 14b, above, it is found that 34 records examined in camera constitute records of law enforcement agencies pursuant to § 1-19(b)(3), G.S. The Commission notes that the respondent police chief has already redacted many of the records submitted for in camera inspection in this category.
24. It is found that eight law enforcement records examined in camera (records numbered 40, 41, 42, 43, 44, 45, 84, and 85) contain confidential witness names or specifically identify investigative techniques and were compiled in connection with the detection or investigation of a crime. It is therefore concluded that disclosure of the records numbered 40, 41, 42, and 43, and the redacted portions of records numbered 44, 45, 84, and 85 are exempt from mandatory public disclosure pursuant to § 1-19(b)(3), G.S.
25. It is concluded that, with the exception of the eight law enforcement records identified in paragraph 24, above, the remaining 26 law enforcement records examined in camera (records numbered 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 86, 87, 234, and 235) are not exempt from mandatory public disclosure pursuant to § 1-19(b)(3), G.S.
26. Section 1-19(b)(4), G.S., exempts from mandatory public disclosure:
records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled….
27. It is found that, with respect to the claim of the respondent police chief pursuant to § 1-19(b)(4), G.S., identified in paragraph 14c, above, the respondent police chief has disclosed the entire requested personnel file to the respondent Williams.
28. It is also found, however, that among the 132 records examined in camera pursuant to the respondent police chief’s § 1-19(b)(4), G.S., claim identified in paragraph 14c, above, 13 records constitute: a) records which are medical records outside the scope of complainant’s request (records numbered 1, 2, 3, 4, 5, 21, 206, 207, 208, 209, 211, and 214); or, b) a record exempt from mandatory disclosure because it is a personnel record the disclosure of which would constitute an invasion of privacy (record number 33). It is therefore concluded that these 13 records are not requested or are exempt from mandatory disclosure within the meaning of § 1-19(b)(2), G.S. The Commission again notes that the respondent police chief has already redacted many of the records submitted for in camera inspection in this category.
29. It is further found that, with the exception of the 13 records identified in paragraph 28 above, the remaining 119 records examined in camera pursuant to the respondent police chief’s § 1-19(b)(4), G.S., claim do not constitute records of strategy or negotiations with respect to pending claims or pending litigation (records numbered 6, 8, 9, 10, 11, 12, 17, 18, 19, 20, 34, 35, 36, 37, 38, 39, 46, 47, 49, 53, 54, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 117, 118, 119, 121, 122, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 210, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, and 269). It is therefore concluded that such records are not exempt from mandatory public disclosure within the meaning of § 1-19(b)(4), G.S.
30. Section 1-19(b)(9), G.S., exempts from mandatory public disclosure "records, reports and statements of strategy or negotiations with respect to collective bargaining."
31. It is found that, with respect to the claim of the respondent police chief pursuant to § 1-19(b)(9), G.S., identified in paragraph 14d, above, the respondent police chief has disclosed the entire personnel file to the respondent Williams.
32. It is found that none of the 15 records examined in camera pursuant to the respondent police chief’s § 1-19(b)(9), G.S., claim (records numbered 236, 237, 238, 239, 240, 241, 242, 243, 249, 253, 263, 266, 267, 268, and 269) constitute records, reports or statements of strategy or negotiations with respect to collective bargaining. It is therefore concluded that such records are not exempt from mandatory public disclosure pursuant to § 1-19(b)(9), G.S.
33. Section 1-19(b)(10), G.S., in pertinent part, exempts from mandatory public disclosure "communications privileged by the attorney-client relationship…."
34. With respect to the claim of the respondent police chief pursuant to § 1-19(b)(10), G.S., identified in paragraph 14e, above, it is found that the two records (records numbered 197 and 206) examined in camera do constitute communications privileged by the attorney-client relationship. It is therefore concluded that such records are exempt from mandatory public disclosure pursuant to § 1-19(b)(10), G.S.
35. It is also concluded that the respondent police chief violated § 1-19(a), G.S., by failing to provide the complainants with access to the requested records, with the exception of the records specifically identified as exempt in paragraphs 19, 24, 28 and 34, above, and the medical records outside the scope of the complainants’ request, identified at paragraphs 21 and 28, above.
36. It is found that the violations found in paragraph 13, above, were without reasonable grounds, within the meaning of § 1-21i(b)(2), G.S., and that the respondent police chief is the official responsible for such violations. However, given the lateness of the complainants’ request for a civil penalty, the Commission declines to impose one in this case.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent police chief shall forthwith permit the complainants to inspect the requested records without any redaction thereof, with the exception of the records specifically identified as exempt in paragraph 35 of the findings, above, and the redactions specifically identified in paragraphs 9 and 24, above.
2. Henceforth, the respondent police chief shall strictly comply with the provisions of § 1-19(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of May 28, 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:
Carolyn Moreau and The Hartford Courant
c/o Matthew Kauffman
285 Broad Street
Hartford, CT 06115
Chief of Police, Southington Police Department
c/o Frederick L. Dorsey, Esq.
Siegel, O’Connor, Schiff & Zangari, PC
171 Orange Street
New Haven, CT 06510
Susan Williams
c/o William F. Clark, Esq.
Lynch, Traub, Keefe & Errante
52 Trumbull Street
New Haven, CT 06506
__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC1996-322/FD/eal/06061997