FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

William C. Kaempffer

and New Haven Register,

 

 

Complainants

 

 

against

 

Docket #FIC 1998-372

Police Department, City of New Haven;

City of New Haven; and James Sorrentino,

 

 

Respondents

June 9, 1999

 

            The above-captioned matter was heard as a contested case on March 12 and April 7, 1999, at which times the complainants and the respondents appeared, and presented testimony, exhibits and argument on the complaint. The caption above has been amended to reflect the admission of James Sorrentino as a party.

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

            1.  The respondents, Police Department, City of New Haven, and City of New Haven (the “City respondents”), are public agencies within the meaning of §1-200(1) (formerly 1-18a(a)), G.S.

 

2.  By letter dated November 18, 1998, the complainants requested that the City respondents provide them with a copy of the “personnel file for Capt. James V. Sorrentino” (the “requested records”) and further requested that the fee for such copy be waived.

 

            3.  By letters dated November 19 and December 1, 1998, the City respondents declined to furnish the requested records, citing §1-214(c), (formerly §1-20a(c)), G.S., and stating that a written objection to disclosure would be filed by respondent Sorrentino.

 

4.  By letter dated December 3, 1998, and filed with the Commission on December 7, 1998, the complainants appealed to the Commission alleging that the City respondents violated the Freedom of Information Act by declining to provide a copy of the requested records, with medical records and other excluded materials redacted.

5.  Section 1-210(a), (formerly 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….

 

 6.  However, §1-210(b), (formerly 1-19(b)), G.S., provides that various records shall be exempt from mandatory disclosure, including:

 

(3)  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 …(C) information to be used in a prospective law enforcement action if prejudicial to such action…[and]

 

(4)  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….

           

7.  On March 17, 1999 and April 7, 1999, the City respondents submitted the requested records, with indices, for in camera inspection, which the Commission has now performed.

 

8.  It is found that the records provided for in camera inspection do not include materials on any investigation of respondent Sorrentino that was the basis for his arrest for larceny on November 17, 1998. Accordingly, it is also found that the requested records were not “compiled in connection with the detection or investigation of crime”, as the term is utilized in §1-210(b)(3), (formerly 1-19(b)(3)), G.S.

 

9.  It is therefore concluded that the requested records are not records of law enforcement agencies which are exempt from mandatory disclosure pursuant to §1-210(b) (3), (formerly 1-19(b) (3)), G.S.

 

10.  It is found that an administrative action within the respondent Police Department and a criminal action are currently pending against respondent Sorrentino.

 

11.  However, it is also found that there was no specific evidence showing that the requested records pertain to any aspect of strategy and negotiations with respect to the pending litigation.

 

12.  It is concluded that the requested records are not exempt from mandatory disclosure as records pertaining to strategy and negotiations with respect to pending claims or pending litigation, pursuant to §1-210(b)(4), (formerly 1-19(b)(4)), G.S.

 

13.  Section 1-210(b)(2), (formerly 1-19(b)(2)), G.S., provides that a public agency need not disclose “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy”.

 

14.  Section 1-214(b), (formerly 1-20a(b)), G.S., 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. [emphasis added]

 

15.  And finally, §1-214(c), (formerly 1-20a(c)), G.S., provides that:

 

                        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….

 

            16.  In that the requested records were the personnel file of respondent Sorrentino (see paragraph 2, above), it is concluded that the requested records are a personnel or medical file or similar file for purposes of §1-210(b)(2), (formerly 1-19(b)(2)), G.S.

 

            17.  It is concluded that, in determining whether “the agency reasonably believes that disclosure of such records would legally constitute an invasion of privacy”, pursuant to §1-214(b), (formerly 1-20a(b)), G.S., and also whether the disclosure of such records would legally constitute an “invasion of privacy”, pursuant to §1-210(b)(2), (formerly 1-19(b)(2)), G.S., the appropriate test for an invasion of privacy is set forth in Perkins v. Freedom of Information Commission, 228 Conn. 158 (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. Perkins at 175.

18.  It is found that the requested records (including record 75, but excluding records 9, 13, 20, 34, 36, 37, 139, 141, 149, 150, and 160) directly pertain to legitimate matters of public concern, in that they detail in a traditional fashion the job performance of a public employee, in this case a police officer. The records excepted in the previous sentence pertain to individualized payroll deductions, pension matters and related issues which have long been considered matters private to an individual.

 

19.  It is also found that the requested records contain information pertaining personally to respondent Sorrentino, some of which information could reasonably be considered highly offensive to a reasonable person.

 

20.  In view of the information contained in the requested records pertaining personally to respondent Sorrentino, it is concluded that the City respondents could reasonably have believed that disclosure of the requested records would legally constitute an invasion of privacy for purposes of §1-214(b), (formerly 1-20a(b)), G.S.

 

21.  Therefore, it is concluded that the City respondents’ failure to provide the complainants with prompt access to the requested records did not violate the promptness provisions of §1-210(a), (formerly 1-19(a)), G.S.

 

22.  However, applying the Perkins test which requires a finding as to each of its two requirements in order to hold an invasion of privacy, it is concluded, in light of the finding concerning legitimate matters of public concern at paragraph 18, above, that disclosure of the requested records (except for records 9, 13, 20, 34, 36, 37, 139, 141, 149, 150, and 160) would not cause “an invasion of personal privacy” with reference to respondent Sorrentino, as the term is utilized in §1-210(b)(2), (formerly 1-19(b)(2)), G.S.

 

23.  It is therefore concluded that the City respondents violated §§1-210(a) and 1-212, (formerly 1-19(a) and 1-15(a)), G.S., by failing to provide the complainants with a copy of the requested records (including record 75, which was part of the personnel file of respondent Sorrentino when the November 18, 1998 request was made, but excluding records 9, 13, 20, 34, 36, 37, 139, 141, 149, 150, and 160).

 

24.  It is concluded that the complainants request for the “personnel file for Capt. James V. Sorrentino” was not limited to any given period of time, and in order to provide a practical remedy without the filing of another complaint to cover the period of time since the filing of the last complaint, the remedy should include all items in the personnel file up until the date of the last hearing in this matter.

 

25.  It is found that the complainants are not indigent, and accordingly, it is concluded that the City respondents are not required by the terms of §1-212(d), (formerly1-15(d)), G.S., to waive the copying fee.

 

 

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

 

            1.  The City respondents shall forthwith furnish the complainants with a copy of the requested records (including record 75), with all additions to the file up until April 7, 1999, but excluding records 9, 13, 20, 34, 36, 37, 139, 141, 149, 150, and 160, provided, however, that there shall be no requirement that the copying fee be waived.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of

June 9, 1999.

 

 

_________________________

Melanie R. Balfour

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:

 

 

William C. Kaempffer

and New Haven Register

c/o Christopher C. Hoffman

40 Sargent Drive

New Haven, CT  06511

 

Police Department,

City of New Haven;

City of New Haven;

and James Sorrentino

c/o Atty. Thayer Baldwin, Jr.

Corporation Counsel

City of New Haven

165 Church Street

New Haven, CT  06510

and

c/o Atty. William J. Dow III

Jacobs, Grudberg, Belt & Dow, PC

PO Box 606, 350 Orange Street

New Haven, CT  06503-0606

 

 

 

 

 

 

 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

 

FIC1998-372FD/mrb/06141999