FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Wayne Mercier,

 

 

Complainants

 

 

against

 

Docket #FIC 1999-355

Patricia C. Washington, Director of Personnel,

City of Hartford; and Department of Personnel,

City of Hartford,

 

 

Respondents

November 10, 1999

 

The above-captioned matter was heard as a contested case on September 22, 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 July 6, 1999 the complainant submitted a request to the respondents for:

 

a.      all correspondence between the respondent department and Howard Alston,

b.     all correspondence between Chief Robert Dobson and Howard Alston; 

c.      and all correspondence between the respondent department, Chief Robert Dobson, Howard Alston, and HFDL Local 760 Union.

 

The complainant also renewed a prior request dated June 4, 1999 for the work record of Howard Alston.

 

3.     By letter dated July 8, 1999, the respondents received an objection to disclosure of the records described in paragraph 2, above, from Mr. Howard Alston.

4.     By letter dated July 22, 1999, the respondents informed the complainant that Mr. Alston had objected to the disclosure of the requested records.

 

5.     By letter dated and filed on August 2, 1999, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his request for the records described in paragraph 2, above.  The complainant also requested the imposition of civil penalties.

 

6.     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, 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 or business hours or to receive a copy of such records in accordance with the provisions of section 1-212. 

 

7.     Section 1-212(a), G.S. [formerly §1-15(a), G.S.], provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

8.     At the hearing on this matter, the complainant clarified his request for Mr. Alston’s work records as a request for Mr. Alston’s attendance records

 

9.     It is found that the requested records are public records within the meaning of §1-210(a), G.S. [formerly §1-19(a), G.S.]. 

 

10. At the hearing on this matter, the respondents argued that “the complainant is not entitled to the requested records because of the FOI Act exemption from disclosure of personnel, medical or similar files of an employee, particularly where the information contains matters of personal privacy to the individual whose records are requested.”

 

11. Section 1-210(b)(2), G.S. [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”.

 

12. The appropriate test for determining whether §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.], is applicable to the requested records is 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.

 

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

 

14. It is also found, however, that the respondents failed to prove that the requested records do not pertain to a legitimate matter of public concern or that the information contained in the requested records is highly offensive to a reasonable person. 

 

15. Consequently, it is concluded that the respondents failed to prove that the requested records are exempt from disclosure under §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.].

 

16. At the hearing on this matter, the respondents also argued that “because the city of Hartford and [the complainant] are engaged in a matter which is currently in litigation, on the basis of the pending litigation exemption the city would be entitled, absent the objection of Mr. Alston, to deny [the complainant] access to the requested records and that because [the complainant] intends to use the records in the litigation, the city is entitled to exercise their rights under the exemption for pending litigation.”

 

17. Section 1-210(b)(4), G.S. [formerly §1-19(b)(4), G.S.], provides in relevant part that a public agency need not disclose “[r]ecords pertaining to strategy and negotiation 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 . . . .”

 

18. It is found that the respondents failed to prove that the requested records pertained to “strategy and negotiation” within the meaning of §1-230(b)(4), G.S. [formerly §1-19(b)(4), G.S.]. 

 

19. It is concluded therefore that the respondents failed to prove that the requested  records are exempt from disclosure under §1-210(b)(4), G.S. [formerly §1-19(b)(4), G.S.]. 

 

20. It is further concluded that the respondents violated §§1-210(a) and 1-212(a) [formerly §§1-19(a) and 1-15(a), G.S., respectively] by failing to provide the complainant with a copy of the records described in paragraph 2, above. 

 

21. The Commission declines to impose a civil penalty in this case.

 

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 a copy of the records described in paragraph 2 of the findings, above, free of charge.

 

 

 

 

 

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

November 10, 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:

 

 

Wayne Mercier

Apt. 15, Mail Box AG6

915 Town Colony Drive

Middletown, CT  06457

 

 

 

Patricia C. Washington, Director of Personnel, City of Hartford; and Department of Personnel, City of Hartford

c/o Atty. Karen K. Buffkin

Office of the Corporation Counsel

550 Main Street

Hartford, CT  06103

 

 

 

 

 

 

 

 

 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

 

FIC1999-355/FD/mrb/11151999