FIC1999-289

FREEDOM OF INFORMATION COMMISSION OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by			FINAL DECISION
Thomas Moran,
		Complainants
	against		Docket #FIC 1999-289
Director, Human Resources, Town of Simsbury; and Department of Human Resources, Town of Simsbury,
		Respondents	February 9, 2000

The above-captioned matter was heard as a contested case on September 14, 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 the following individuals whose personnel file records are at issue and who are employees of the Simsbury Police Department: Alfred Schull, Richard Beck, David Fisher (retired), Joseph Jurczak and Brian Cavanagh. Schull attended the hearing. The hearing officer permitted all of the employees concerned to file written affidavits with the Commission, if they so chose, which affidavits have been made a part of the record in this case. The records at issue were reviewed in camera. [1]

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

1. The respondent director is a public agency within the meaning of §1-200(1), G.S., (formerly §1-18a(1), G.S.).

2. It is found that on May 24, 1999, the complainant requested that the Simsbury Police Department (“department”) provide him with access to the complete service records for employees Jurczak and Fisher.

3. It is found that on June 3, 1999 the complainant then requested that the department provide him with access to the complete service records of Jurczak and Fisher, in addition to the complete service records of Shull, Beck and Cavanagh (hereinafter “requested records”).

4. It is found that by letter dated June 3, 1999 the respondent director notified the employees concerned of the complainant’s requests and provided them with an opportunity to object to the disclosure of the requested records.

5. 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… 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.

6. It is found that by letter dated June 11, 1999 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 June 18, 1999 and filed on June 21, 1999, the complainant appealed to the Commission alleging that the respondents violated the FOI Act by denying him 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” and “similar” 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. Although the legislature has determined that disclosures relating to the employees of public agencies are presumptively legitimate matters of public concern, this presumption is not conclusive. Perkins, supra at 174. Disclosure of internal, departmental, personnel evaluations may not be a legitimate matter of public concern where such evaluations have been conducted under appropriate confidential circumstances. Id.

14. Following the hearing in this matter, the respondents submitted the records at issue to the Commission for an in camera inspection, with the exception of records concerning Richard Beck (hereinafter “in camera records”).

15. For identification purposes, the in camera records have been grouped by employee, and then by document, as follows: Schull IC# 1999-289-1 through 1999-289-18; Cavanagh IC# 1999-289-1 through 1999-289-13; Jurczak IC# 1999-289-1 through 1999-289-31; and Fisher IC# 1999-289-1 through 13.

16. The in camera records include the following: personnel evaluations, job applications, records concerning conduct, objections to disclosure of personnel records, gross salary information, attendance records, department rules and regulations, achievement awards, course completion certificates, diplomas, school transcripts, examination scores and records concerning requests for financing.

THE PERSONNEL EVALUATIONS

17. It is found that the personnel evaluations in this matter were conducted under appropriate confidential circumstances.

18. It is therefore, concluded that the personnel evaluations are not matters of legitimate public concern.

19. However, it is also found that the personnel evaluations do not contain information that is highly offensive to a reasonable person.

20. It is therefore, concluded that disclosure of the personnel evaluations would not constitute an invasion of privacy and therefore, such evaluations are not exempt from disclosure pursuant to §1-210(b)(2), G.S. (formerly §1-19(b)(2), G.S.).

THE REMAINING DOCUMENTS

21. It is found that all of the remaining in camera records pertain to legitimate matters of public concern, with the exception of the following information contained in some of the records: information concerning spouses, children, financial lending institutions, and details of illness in connection with sick leave requests.

22. It is further found that disclosure of the information contained in the in camera records, with the exception of the information concerning spouses, children, financial lending institutions, and details of illness in connection with sick leave requests, would not be highly offensive to a reasonable person.

23. It is therefore concluded that, with the exception of the information concerning spouses, children, financial lending institutions, and details of illness in connection with sick leave requests, disclosure of the in camera records would not constitute an invasion of privacy and therefore, such records are not exempt from disclosure pursuant to §1-210(b)(2), G.S., (formerly §1-19(b)(2), G.S.).

24. It is further found that some of the in camera records contain social security numbers. With respect to social security numbers, the Commission has historically declined to order the disclosure of such numbers. In contested case FIC 89-76, Eric Garrison v. Supervisor, Unclaimed Property Division, State of Connecticut, Office of the Treasurer, the Commission found that:

…social security numbers are used by both the public and private sector for a wide range of personal identification purposes including but not limited to use of this number for state and federal taxpayer identification.

It is found that disclosure of social security numbers would allow persons with knowledge of such numbers to access a wealth of data, including personal, financial, and tax data concerning the individual assigned that number.

25. Consequently, in keeping with Commission precedent, the Commission declines to order the disclosure of the social security numbers contained in the in camera records.

26. It is also found that some of the in camera records contain the residential addresses and telephone numbers of the employees concerned, which employees are police officers.

27. Section 1-217, G.S., (formerly §1-20f, G.S.), provides, in relevant part: “[N]o state department, agency, board, council, commission or institution may disclose, under the Freedom of Information Act, the residential address of… (2) A sworn member of a municipal police department ….”

28. It is therefore, concluded that the home addresses contained in the in camera records are exempt from disclosure pursuant to §1-217, G.S., (formerly §1-20f, G.S.), and the Commission declines to order the disclosure of the home telephone numbers contained therein.

29. It is concluded that the respondents did not violate §1-210(a), G.S., (formerly §1-19(a), G.S.) when they failed to provide the complainant with access to the following information contained in the in camera records: information concerning spouses, children, financial lending institutions, details of illness in connection with sick leave requests, and the home addresses, telephone numbers and social security numbers of the individuals concerned.

30. It is further concluded that the respondents violated §1-210(a), G.S., (formerly §1-19(a), G.S.) when they failed to provide the complainant with access to the in camera records, excluding the information described in paragraph 29, above.

31. With respect to the records concerning Beck, it is concluded that the respondents failed to prove that such records are exempt from disclosure.

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 access to inspect the in camera records and the records requested that pertain to Beck.

2. In complying with paragraph 1 of the order the respondents may redact the information described in paragraph 29, above. In addition, the respondents may redact any similar information contained in the records concerning Beck.

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

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

February 9, 2000.

________________________

Ann B. Gimmartino

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:

Thomas Moran

P.O. Box 436

Tariffville, CT 06081

Director, Human Resources, Town of

Simsbury; and Department of Human

Resources, Town of Simsbury

c/o Robert DeCrescenzo, Esq.

Updike, Kelley & Spellacy, P.C.

P.O. Box 231277

One State Street

Hartford, CT 06123-1277

Alfred Shull