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