FREEDOM
OF INFORMATION COMMISSION
OF
THE STATE OF CONNECTICUT
In the Matter of a
Complaint by FINAL
DECISION
John B. Harkins
Complainant
against Docket
#FIC 1997-088
Acting Town Manager, Town
of Tolland
Respondent January
28, 1998
The
above-captioned matter was heard as a contested case on September 4, 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., (§1-18a(a),
G.S., prior to Oct. 1, 1997).
2. The Commission takes administrative notice
of the decisions in contested case docket #FIC 1996-421, John B. Harkins v.
Chairman, Tolland Town Council, (“FIC 1996-421”) and contested case docket
#FIC 1996-521, Carol Butterworth v. Town Council, Town of Tolland, (“FIC
1996-521”).
3. It is found that in 1996, during his tenure
as Town Manager of the town of Tolland (“town”), the complainant was evaluated
by the Tolland Town Council (hereinafter “town council”).
4. It is found that certain town employees
(“employees”) participated in the evaluation process by completing
questionnaires. Ultimately, the
employees’ answers to the questionnaires were incorporated into the town
council’s evaluation of the complainant.
5. It is found that based upon the respondent’s
evaluation, the complainant was relieved of his position as town manager.
6. It is found that by letter dated September
20, 1996, the complainant requested that the town council provide him with a
copy of the evaluation records. That
request was denied in part by the town council, and the complainant appealed
the denial to the Commission. That
appeal was docketed as FIC 1996-421, and a hearing was held on January 16,
1997.
7. It is also found that by letter dated August
30, 1996, Carol Butterworth, a private citizen, requested that the town council
provide her with a copy of the evaluation records. That request was denied in part by the town council, and
following an appeal to the Commission by Ms. Butterworth, docketed as FIC
1996-521. A hearing was held in FIC
1996-521 on February 13 and 19, 1997.
8. Following the hearings in FIC 1996-421 and
FIC 1996-521, the complainant, by letter dated February 24, 1997, requested
that the respondent provide him with a copy of the following records, which are
the subject of this appeal, hereinafter (“requested records”):
a. video tape of the September 19, 1996 public
hearing concerning the complainant;
b. employees’ objections to the disclosure of
their questionnaire answers (hereinafter “objections”); and
c. responses of any union affiliated persons
regarding the respondent’s notice sent to employees pursuant to §1-20a(b)
and (c), G.S.
9. After receiving the complainant’s request,
described in paragraph 8b and 8c of the findings, above, the respondent, by
letter dated March 4, 1997, notified the employees of the complainant’s request
for their objections.
10. It is found that in response to the March 4,
1997 notice, described in paragraph 9 of the findings, above, three employees
objected to the disclosure of their objections.
11. Having failed to receive the requested
records, the complainant, by letter dated March 7, 1997, and filed with the
Commission on March 12, 1997, alleged that the respondent violated the Freedom
of Information Act by denying him a copy of the requested records.
12. By letter dated March 18, 1997, the
respondent requested that the Commission dismiss this appeal because it was
prematurely filed in that the time period set forth at §1-20a(c),
G.S., within which objecting employees could respond, had not expired.
13. It is concluded that the appeal was filed
within the appropriate time period and therefore, the Commission has
jurisdiction to hear it.
14. With respect to the record requested and
described in paragraph 8a of the findings, above, it is found that by letter
dated March 3, 1997 the respondent agreed to provide the complainant with the
requested record and provided the complainant with such record a few weeks
following his request.
15. With respect to the record requested and
described in paragraph 8c of the findings, above, it is found that such record
never existed.
16. With respect to the record requested and
described in paragraph 8b of the findings, above, it is found that the
respondent maintains objections responsive to the complainant’s request and
such objections are public records within the meaning of §1-18a(5),
G.S., (§1-18a(d),
G.S., prior to Oct. 1, 1997) and §1-19(a),
G.S.
17. The respondent contends that the objections
are exempt from disclosure pursuant to §1-19(b)(2),
G.S.
18. It is found that the objections constitute
personnel, medical or similar file within the meaning of §1-19(b)(2),
G.S.
19. The respondent claims that disclosure of the
objections would identify the employees who objected to the disclosure of their
questionnaire answers, and therefore, would constitute an invasion of such
employees’ privacy.
20. 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.
21. It is found that the information contained
in the objections pertains to legitimate matters of public concern.
22. It is also found that the information
contained in the objections is not highly offensive to a reasonable person.
23. It is therefore, concluded that the
objections are not exempt from disclosure pursuant to §1-19(b)(2),
G.S.
24. It is further concluded that the respondent
violated §§1-19(a)
and 1-15(a), G.S., by failing to promptly provide the complainant with a copy
of the requested tape, more fully described in paragraph 8a of the findings,
above, and by failing to provide the complainant with a copy of the objections,
more fully described in paragraph 8b of the findings, above. The respondent did not violate §§1-19(a)
and 1-15(a), G.S., with respect to the record requested and described in
paragraph 8c 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 objections, more fully described in paragraph 8b
of the findings, above.
2. Henceforth the respondent shall strictly
comply with the promptness provisions of §§1-19(a)
and 1-15(a), G.S.
Approved
by Order of the Freedom of Information Commission at its regular meeting of
January 28, 1998.
_________________________
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:
John B. Harkins
96 Hunter Road
P.O. Box 683
Tolland, CT 06084
Acting Town Manager, Town of Tolland
c/o Dennis J. O’Brien
Law Offices of Howard B. Schiller
55 Church Street
P.O. Box 699
Willimantic, CT 06226
__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-088/FD/tcg/01281998