FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by |
FINAL DECISION |
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Hoffman and New Haven Register, |
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Complainant |
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against |
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Docket #FIC 1999-502 |
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Director of Personnel, State of Connecticut, |
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Respondents |
April 26, 2000 |
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The above-captioned matter was heard as a contested case on January 6, 2000, at which time the complainants 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 September 30, 1999, the complainants requested access to the personnel file of Denise Botto, an employee of the respondents. The complainants did not seek access to Ms. Botto’s medical or family information, or her social security number.
3. By letter dated October 6, 1999, the respondents denied the request described in paragraph 2, above, citing the Collective Bargaining Agreement between the Board of Trustees for the Connecticut State University System and the Connecticut State University American Association of University Professors [hereinafter “the agreement”], section 4.14.2.10.
4. By letter dated October 18, 1999, and filed with the Commission on October 22, 1999, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information Act by virtue of the denial described in paragraph 3, above.
5. It is found that the personnel file of Ms. Botto, absent medical, family, and social security information, as requested by the complainants, is a public record within the meaning of §1-200(5), G.S. [formerly §1-18a(5), G.S.]
6. 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….”
7. It is found that the
agreement was approved in 1997 by the Connecticut General Assembly in accordance with the provisions of §§5-270 to 5-280, G.S., and that such agreement was in effect at all
times relevant herein.
8. The respondents contend that section 4.14.2.10 of the agreement provides a basis for withholding the requested file.
9. Section 4.14.2.10, of the agreement provides:
“The
entire contents of personnel files shall be considered private
and may not be opened to any outside scrutiny except when ordered
by a court of law. When a
file is requested by an outside party for
any reason, the affected member shall be promptly notified and
provided with a copy of the request and reason therefore.”
10. Section 5-278, G.S., provides in relevant part:
“(b)
Any [collective bargaining] agreement… shall be reduced to writing….
The agreement, together with a request for …approval of any
provisions of
the agreement which are in conflict with any statute or any
regulation of
any state agency….shall be filed …with the clerks of the House of
Representatives and the Senate…”
(Emphasis added.)
“(e)
Where there is a conflict between any agreement or arbitration award
approved in accordance with the provisions of sections 5-270 to
5-280,
inclusive, on matters appropriate to collective bargaining…and any
general
statute or special act, or regulations adopted by a state agency, the
terms of
such agreement or arbitration award shall prevail…”
(Emphasis added.)
11. It is concluded that a collective bargaining term may
supersede a statute, provided that the appropriate statutory procedure has
been followed, and that, absent such procedure, the conflicting term is a
nullity. Board of Trustees for
State Technical Colleges v. Federation of Technical College Teachers, Local
1942, American Federation of Teachers, AFL-CIO, 179 Conn. 184, 197 (1979);
see Connecticut State College American Ass'n of University Professors v.
Connecticut State Bd. of Labor Relations, 197 Conn. 91, 98-99 (1985)
(unless legislators are informed of the statutes or regulations that conflict
with the negotiated agreement, vote of approval cannot be deemed to modify
statute).
12. The Commission takes administrative notice of the April 18,
1997 transmittal submitted with the agreement for legislative approval, which
transmittal references Article 4.14.2.10, describes such provision as “provides
certain limitations on access to personnel files and medical records,” and
states that the state statute or regulation superseded is “PA 87-285, 1-19a
CGS.”
13. Public Act 87-285 amended §1-20a, G.S. [now codified as §1-214, G.S.], and in pertinent part reads as follow:
“ (b) 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 each employee concerned, provided such notice shall
not be required to be in writing where impractical due to the
large number of employees 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.
(c) 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 within four business
days from the receipt by the employee of the notice or, if there is no
evidence of receipt of written notice, not later than seven business
days from the date the notice is actually mailed, sent, posted or
otherwise given. Each objection filed under this subsection shall be
subscribed by an attorney admitted to practice before the courts of
this state and shall constitute a certificate that the subscribing
attorney has read the objection, that to the best of his knowledge,
information and belief 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 pursuant to section [1-206]…Failure to
comply with a request to inspect or copy records under this section
shall constitute a denial for the purposes of section [1-206].…”
14. It is concluded that §4.14.2.10 of the agreement conflicts with Public Act 87-285 [now codified as §1-214, G.S. (formerly §1-20a, G.S.)], in two respects: first, by requiring that the agency notify its employee of any request for an employee’s personnel file, rather than only those requests where the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy; and second, by requiring the agency to also notify an employee of the reason for a request. It is further concluded that, in accordance with §5-278(e), G.S., §4.14.2.10 of the agreement supersedes Public Act 87-285 [now codified as §1-214, G.S. (formerly §1-20a, G.S.)], in such respects. However, it is also concluded that the remaining provisions of such statute were not modified by §4.14.2.10 of the agreement, and therefore continue in full force with respect to the respondents and the request described in paragraph 2, above.
15. Section 1-19a, G.S,
[now codified as §1-211, G.S.]
provides: