FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Richard Manuel Rivera,

 

 

Complainants

 

 

against

 

Docket #FIC 1999-015

Superintendent of Schools,

Torrington Public Schools; and

Board of Education, Torrington

Public Schools,

 

 

Respondents

June 9, 1999

 

            The above-captioned matter was heard as a contested case on March 3, 1999, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of §1-200(1), G.S. [formerly §1-18a(1), G.S.].

 

            2.   By letter dated December 7, 1998, the complainant requested that the respondents provide him with access to:

 

a.      all 578 employee files;

b.     objection letters of Mr. Dorie and Mr. Paganini;

c.      the EOE file;

d.     the files of Mr. Dorie and Mr. Paganini; and

e.      the minutes of the respondent board’s meeting of April 1, 1998.

 

            3.   By letter dated December 11, 1998, the respondents provided the complainant with an estimate of costs for copies of records responsive to the requests described in paragraphs 2.b and 2.e, above, and informed the complainant that, based upon objections received, they would not make available to the complainant the records described in paragraph 2.d, above.  The respondents also informed the complainant that they would not release records described in paragraph 2.a, above without offering the subject employees an opportunity to object.  Finally, the respondents informed the complainant that they needed a more specific definition of an EOE file before they could respond to the request described in paragraph 2.c, above.    

 

            4.   By letter dated December 21, 1998, the respondents provided the complainant with a copy of a letter objecting to disclosure of the records of teachers who are members of the Torrington Education Association, which letter was signed by a duly authorized collective bargaining agent on December 15, 1998. 

 

            5.   By letter dated January 4, 1999, and filed January 8, 1999, the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying him access to the requested records.  

 

            6.   It is found that the requested records are public records within the meaning of §1-200(1), G.S. [formerly §1-18a(1), G.S.]

 

            7.   Section 1-210(a), G.S. [formerly §1-19(a), G.S.], provides in relevant part:

 

[e]xcept as otherwise provided by any federal law or state statute, 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 in accordance with the provisions of section 1-15….”

 

            8.   It is found that, with respect to the response described in paragraph 3, above, as it relates to the complainant’s request for records described in paragraph 2.b and 2.e, above, the respondents mistakenly provided an estimate of copying costs, rather than a production of records for inspection.  It is concluded that the respondents thereby violated §1-210(a), G.S. [formerly §19(a), G.S.]  

 

            9.   With respect to the response described in paragraph 3, above, as it relates to the request described in paragraph 2.c, above, it is found that the respondents were unable to ascertain what records the complainant was seeking and the complainant did not clarify his request; therefore, the respondents could not provide the complainant with records responsive to such request.  Accordingly, it is concluded that the respondents did not violate §1-210(a), G.S. [formerly §19(a), G.S.] by failing to provide access to the records described in paragraph 2.c, above. 

 

            10.   With respect to the records described in paragraph 2.a and 2.e, above, (hereinafter “personnel records”), the respondents contend that such records are exempt from mandatory disclosure pursuant to §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.]. 

 

            11.   Section 1-210(b)(2), G.S. [formerly §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.”

 

            12.  In Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993), the Supreme Court set forth the test for the exemption contained in §1-210(b)(2), G.S. [formerly §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.

 

            13.  It is found that the personnel records are personnel files within the meaning of §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.]

 

            14.  Section 1-214(b), G.S. [formerly §1-20a(b), G.S.], in relevant part states:

 

[w]henever a public agency receives a request to inspect or copy records contained in any of its employees' personnel or medical files 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…each employee concerned….

 

            15.  It is found that the respondents reasonably believed that disclosure of portions of the personnel records would legally constitute an invasion of privacy within the meaning of §1-214(b), G.S. [formerly §1-20a(b), G.S.]

 

            16.  It is found that the respondents duly notified the subjects of the personnel records, pursuant to §1-214(b), G.S. [formerly §1-20a(b), G.S.] and that the teachers described in paragraph 4, above, as well as Mr. Dorie and Mr. Paganini, objected to disclosure of their respective records.

 

            17.  Section 1-214(c), G.S. [formerly §1-20a(c), G.S.], in relevant part states:

 

[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 or the employee's collective bargaining representative, if any, …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 [FOI] Commission pursuant to section 1-206….

 

            18.  It is found that to the extent the personnel records contain information relating to a public employee’s family life, personal financial situation, medical condition, and social security number, such portions do not pertain to legitimate matters of public concern, and their disclosure would be highly offensive to a reasonable person within the meaning of §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.]

 

            19.  Accordingly, it is concluded that the portions of the personnel records described in paragraph 18, above, are exempt from mandatory disclosure by virtue of §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.], and that the respondents did not violate §1-210(a), G.S. [formerly §1-19(a), G.S.], by denying the complainant access to such portions of records.

 

            20.  Further, §10-151c, G.S., in relevant part provides that:

 

[a]ny records maintained or kept on file by any local or regional board of education which are records of teacher performance and evaluation shall not be deemed to be public records and shall not be subject to the provisions of [§1-210, formerly] §1-19, provided that any teacher may consent in writing to the release of his records by a board of education.  Such consent shall be required for each request for a release of such records.  For the purposes of this section the term “teacher” shall include each certified professional employee below the rank of superintendent employed by a board of education in a position requiring a certificate issued by the State Board of Education.

 

            21.  It is concluded that records of teacher performance and evaluation are exempt from mandatory disclosure by virtue of §10-151c, G.S., and that the respondents did not violate §1-210(a), G.S. [formerly §1-19(a), G.S.], by denying the complainant access to such records contained within the personnel records.

 

            22.  It is also concluded, however, that the remaining portions of the personnel records which are not exempt from disclosure, as described in paragraphs 18 and 21, above, are subject to disclosure pursuant to §1-210(a), G.S. [formerly §1-19(a), G.S.], and that the respondents’ failure to provide the complainant with access to those non-exempt portions of such records constituted “a denial of [a] right conferred by the [FOI] Act”, as that term is utilized in §1-206, G.S. [formerly §1-21i, G.S.]

 

 

 

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

            1.   The respondents shall forthwith provide the complainant with access to the records described in paragraph 2.a, 2.b, 2.d and 2.e of the findings, above. 

 

            2.   In complying with paragraph 1 of the order, the respondents may redact the records more fully described in paragraphs 18 and 21 of the findings, above. 

 

 

 

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:

 

 

Richard Manuel Rivera

178 Washington Avenue

Torrington, CT  06790

 

Superintendent of Schools,

Torrington Public Schools;

and Board of Education,

Torrington Public Schools

c/o Atty. George B. Simoncelli, Jr.

Muschell & Simoncelli, LLP

104 Church Street

Torrington, CT  06790

 

 

 

 

 

 

 

 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

 

FIC1999-015/mrb/06141999