FREEDOM
OF INFORMATION COMMISSION
OF
THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL
DECISION
Laura Amon,
Complainant
against Docket
#FIC 1997-142
Program Manager, Affirmative Action
Division, State of Connecticut, Department
of Transportation,
Respondent December
3, 1997
The
above-captioned matter was heard as a contested case on September 17, 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 §1-18a(1),
G.S. (prior to October 1, 1997, §1-18a(a),
G.S.).
2.
By
letter dated April 4, 1997, the complainant requested that the respondent allow
her to review and possibly obtain a copy of her Affirmative Action folder.
3.
By
letter dated April 15, 1997, the respondent denied the complainant’s request
but offered to provide a chronology of contacts between the complainant and
respondent.
4.
By
letter dated April 30, 1997, and filed with the Commission on May 2, 1997, the
complainant appealed to the Commission, alleging that the respondent violated
the Freedom of Information Act by denying her access to the requested
documents.
5.
It
is found that the requested records are public records within the meaning of §
1-18a(5), G.S. (prior to October 1, 1997, §1-18a(d),
G.S.) and 1-19(a), G.S.
6.
The
respondent submitted the subject records to the Commission for in-camera
inspection, which records have been identified as in-camera document #s
1997-142-1 - 1997-142-26, inclusive.
7.
It
is found that certain crossed-out portions of in-camera document #s
1997-142-5 and 1997-142-6 contain information related to matters not directly
pertaining to the complainant’s affirmative action complaints and which are
outside the scope of the complainant’s request. Therefore, such portions need not be disclosed to her.
8.
With
respect to the remaining records, the respondent contends that they are exempt
from disclosure by virtue of §§1-19(b)(10),
and 46a-68, G.S.
9.
Section
1-19(a), G.S., provides in relevant part:
Except as otherwise
provided by any federal law or state statute, all records maintained…by any
public agency, whether or not such records are required by any law or by any
rule or regulation, shall be public records and every person shall have the
right to inspect such records promptly during regular office…hours or to
receive a copy of such records…. Any
agency rule or regulation, or part thereof, that conflicts with the provisions
of this subsection or diminishes or curtails in any way the rights granted by
this subsection shall be void…
10. Section 1-19(b)(10), G.S., provides that an
agency need not disclose “records, tax returns, reports and statements exempted
by federal law or state statutes…”
11. Section 46a-68, G.S., requires state
agencies to develop affirmative action plans in cooperation with the
Connecticut Commission on Human Rights and Opportunities (CHRO). Section 46a-68(g), G.S., further provides
that the CHRO shall adopt regulations to carry out the affirmative action
requirements of §46a-68, G.S. In
accordance with §46a-68, G.S., CHRO adopted Regulations of Conn. State Agencies
§46a-68-46, requiring state agencies to establish an internal complaint system,
which system shall include “confidential counseling and procedures for informal
resolution at the agency level by the affirmative action officer” and shall
also require that all records of grievances and dispositions thereof shall be
confidential except where disclosure is required by law.
12. It is found that the state Department of
Transportation established an internal complaint system in accordance with the
regulation described in paragraph 11, above.
13. It is found, however, that such regulation
does not constitute an exemption to disclosure pursuant to §1-19(b)(10),
G. S., since it is not a federal law or state statute. Moreover, it is further found that the
regulations cited by the respondent explicitly provide for disclosure of
records where disclosure is required by law.
14. It is further found that §46a-68,
G.S., does not mandate or permit confidentiality of grievance records.
15. Accordingly, it is concluded that §§1-19(b)(10)
and 46a-68, G.S., do not preclude disclosure of the subject records.
16. Respondent also contends that the following in-camera
documents are exempt from disclosure by virtue of §1-19(b)(2),
G.S.: 1997-142-10 - 1997-142-11,
inclusive; and 1997-142-13 - 1997-142-26, inclusive.
17. Section 1-19(b)(2), G.S., provides for the
nondisclosure of “personnel or medical files and similar files the disclosure
of which would constitute an invasion of personal privacy.”
18. In Perkins v. Freedom of Information
Commission, 228 Conn. 158, 175 (1993), the Supreme Court set forth the test
for the exemption contained in §1-19(b)(2),
G.S. The claimant must first establish
that the files in question are personnel, medical or similar files. Second, the
claimant must show that disclosure of the records would constitute an invasion
of personal privacy. In determining
whether disclosure would constitute an invasion of personal privacy, the
claimant must establish both of two elements: 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.
19. It is found that the requested records are
files similar to personnel files as those terms are utilized at §1-19(b)(2),
G.S., because the information therein is pertinent to traditional personnel
decisions, such as deciding whether an employee should be transferred,
disciplined, promoted, or reassigned. Connecticut
Alcohol and Drug Abuse Commission v. Freedom of Information Commission, 233
Conn. 28, 41 (1995).
20. It is further found that in-camera
document #s 1997-142-10 - 1997-142-11, inclusive, contain information the
disclosure of which would be highly offensive to a reasonable person and which
does not pertain to legitimate matters of public concern. Accordingly, such
documents are exempt from disclosure under §1-19(b)(2),
G.S., and are not subject to mandatory disclosure pursuant to §1-19(a),
G.S.
21. It is found, however, that in-camera
document #s 1997-142-13 - 1997-142-26, inclusive, do not contain information
the disclosure of which would be highly offensive to a reasonable person
because they are either comprised of: form letters wherein no individual is
named; form letters wherein individuals are named but which do not reveal any
personal or intimate information about those persons; or records known to the
complainant and made a part of the record in this case.
22. It is further found that in-camera document #s 1997-142-13
- 1997-142-26, inclusive, do pertain to legitimate matters of public concern in
that they relate to the conduct of public business in a public office. Accordingly, such documents are not exempt
from disclosure under §1-19(b)(2),
G.S., and are subject to mandatory disclosure pursuant to §1-19(a),
G.S.
23. It is therefore concluded that the
respondent violated §1-19(a),
G.S., by failing to provide the complainant with access to or copies of the
requested records, with the exception of in-camera document #s
1997-142-10 - 1997-142-11, inclusive, and those portions of in-camera
document #s 1997-142-5 and 1997-142-6, described in paragraph 7, 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 in-camera document #s 1997-142-1 -
1997-142-9, inclusive; and 1997-142-12 - 1997-142-26, inclusive.
2.
In
complying with paragraph 1 of the order, above, the respondent may redact from in-camera
document #s 1997-142-5 and 1997-142-6 those crossed-out portions that are
outside the scope of the complainant’s request, as described in paragraph 7 of
the findings, above.
3.
Henceforth,
the respondent shall strictly comply with the provisions of §1-19(a),
G.S.
Approved
by Order of the Freedom of Information Commission at its special meeting of
December 3, 1997.
_________________________
Doris V. Luetjen
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:
Laura Amon
15 Fifth Avenue
Baltic, CT 06330-1103
Program Manager, Affirmative Action
Division, State of Connecticut, Department
of Transportation
c/o Robert L. Marconi
Assistant Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120
__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-142/FD/tcg/12031997