The above-captioned matter was heard as a contested case on April 7, 1999 at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. Pursuant to § 1-206(b)(1), G.S., (formerly § 1-21i(b)(1), G.S.) the hearing officer granted party status to Police Chief Shull, Captain Sevetz and Sergeants Beck and Cavanagh, the employees whose personnel file records are at issue. Schull, Sevetz and Cavanagh appeared at the hearing. With the agreement of all parties concerned, Beck who was unable to attend the hearing was ordered to provide his testimony in a written affidavit to the Commission by April 16, 1999. The records at issue were reviewed in camera.

        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. It is found that by letter dated February 3, 1999, the complainant requested that the respondent first selectman provide her with access to the personnel files of Police Chief Shull, Captain Sevetz, and Sergeants Beck and Cavanagh (hereinafter "requested records").

        3. It is found that by letter dated February 3, 1999 the respondent director notified the employees concerned of the complainant’s request, and indicated that "the Town does not believe that the disclosure of these records would constitute an invasion of privacy".

        4. Section 1-214(b), G.S., (formerly § 1-20a(b), G.S.) provides:

Whenever 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 (1) each employee concerned, provided such notice shall not be required to be in writing where impractical due to the large number of employees 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.

        5. Notwithstanding the determination that the town did not believe that the disclosure of the requested records would constitute an invasion of privacy, referred to in paragraph 3, above, the respondent director notified the employees concerned of the complainant’s request. The employees were provided with an official notice of the complainant’s request and an opportunity to object to the disclosure of the requested records on or about February 5, 1999.

        6. It is found that by letter (undated) the respondent director informed the complainant that the employees concerned had filed objections to the disclosure of the requested records and therefore, such records would not be released unless so ordered by the Freedom of Information ("FOI") Commission.

        7. By letter dated February 11, 1999 and filed with the Commission on February 17, 1999, the complainant appealed to the Commission alleging that the respondents violated the FOI Act by denying her access to the requested records.

        8. Section 1-210(a), G.S., (formerly § 1-19(a), G.S.) provides in relevant part that "[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…."

        9. It is found that the respondent director maintains the requested records and such records are public records within the meaning of § 1-210(a), G.S., (formerly § 1-19(a), G.S.).

        10. Section 1-210(b)(2), G.S., (formerly § 1-19(b)(2), G.S.), permits the nondisclosure of personnel, medical or similar files the disclosure of which would constitute an invasion of personal privacy.

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

        12. Pursuant to Perkins v. Freedom of Information Commission, 228 Conn. 158 (1993), the appropriate test when examining a claim of exemption pursuant to § 1-210(b)(2), (formerly § 1-19(b)(2), G.S.) is as follows, first the information sought must constitute "personnel or medical files and similar files" and second, two elements must be met: the information sought does not pertain to legitimate matters of public concern, and such information is highly offensive to a reasonable person.

        13. Following the hearing in this matter, the respondents submitted the records at issue to the Commission for an in camera inspection. The in camera records have been designated IC# 1999-064-1 through 1999-064-36. Counsel for the respondents, by letter dated April 16, 1999, informed the Commission that Sergeant Beck has withdrawn his objection to the disclosure of his personnel file records. Consequently, the records at issue and received for in camera inspection pertain to Police Chief Shull, Captain Sevetz and Sergeant Cavanagh.

        14. The in camera records consist of the following categories of records: evaluations, reprimands, objections to disclosure of the records at issue and personnel memoranda.

        15. It is found that the in camera records contain information that pertains to legitimate matters of public concern.

        16. It is also found that none of the information contained in the in camera records, if disclosed, would be highly offensive to a reasonable person.

        17. It is therefore, concluded that the in camera records are not exempt from disclosure pursuant to § 1-210(b)(2), G.S., (formerly § 1-19(b)(2), G.S.).

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

        1. Forthwith the respondents shall provide the complainant with a copy of the in camera records as well as Sergeant Beck’s personnel file records.

        2. Henceforth, the respondents shall strictly comply with § 1-210(a), G.S., (formerly § 1-19(a), G.S.).

        3. None of the findings and conclusions in this decision shall be used as the basis for imposing civil penalties against the respondents in this or any subsequent complaint.

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

July 28, 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:

Joan Coe
26 Whitcomb Drive
Simsbury, CT 06070
First Selectman, Town of Simsbury; Director, Human Resources Department, Town of Simsbury; and Town of Simsbury
c/o Atty. Robert M. DeCrescenzo
Updike, Kelly & Spellacy, PC
PO Box 231277
Hartford, CT 06123-1277
and
Chief Alfred Shull
Simsbury Police Department
933 Hopmeadow Street
Simsbury, CT 06070
and
Captain Peter P. Sevetz
Simsbury Police Department
933 Hopmeadow Street
Simsbury, CT 06070
and
Sergeant Brian Cavanagh
Simsbury Police Department
933 Hopmeadow Street
Simsbury, CT 06070
and
Sergeant Richard Beck
Simsbury Police Department
933 Hopmeadow Street
Simsbury, CT 06070
 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

FIC1999-064FD/mrb/08051999