FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
|
In the Matter of a Complaint by |
FINAL DECISION |
||
|
Robert L. Corraro and IBEW |
|
||
|
|
Complainant |
|
|
|
|
against |
|
Docket #FIC 1999-606 |
|
Town Attorney, Town of Hamden; |
|
||
|
|
Respondents |
May 10, 2000 |
|
|
|
|
|
|
The above-captioned matter was heard as a contested case on February 28, 2000, at which time the complainants, respondents, and intervenor appeared, and presented testimony, exhibits and argument on the complaint. Prior to the hearing in this matter, the Commissioner, State of Connecticut, Department of Labor, moved to intervene as a party in this matter, and such motion was granted. The case caption has been changed to reflect the accurate title of the respondent town attorney. The respondent corporation, Electrical Contractors, Inc. [hereinafter “ECI”], submitted records for in-camera review at the hearing in this matter.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent attorney is a public agency within the meaning of §1-200(1), G.S., [formerly §1-18a(1), G.S.].
2. It is found that, by letter dated June 2, 1999, an organization known as the Connecticut Labor Management Cooperative Committee, which has the same mailing address as the complainants in this matter, requested from the Town of Hamden copies of certified payroll records filed by the electrical contractor on the Wintergreen Interdistrict Magnet School Addition project [hereinafter “the project”]. It is also found that such committee is affiliated with the complainants herein.
3. It is found that the electrical contractor on the project is ECI.
4. It is found that, by letter dated July 7, 1999, ECI notified the respondent attorney that it objected to the release of the names, addresses and social security numbers of its employees, contending that such release would result in an invasion of privacy, and included with such letter copies of written objections of its employees.
5. It is found that, in response to the request described in paragraph 2, above, on July 12, 1999, the respondent attorney provided the complainants with the requested records, with names, addresses and social security numbers redacted, contending that such redacted information was necessarily withheld since objections to disclosure of such information were filed by ECI and its employees.
6. It is found that, by letter dated September 24, 1999, the complainants herein requested that the respondent attorney provide them with copies of certified payroll records filed by ECI for the project.
7. It is found that, by letter dated October 15, 1999, ECI notified the respondent attorney that it and its employees maintained the same objections to disclosure described in paragraph 4, above.
8. It is found that, by letter dated October 18, 1999, in response to the request described in paragraph 6, above, the respondent attorney provided the complainants with the requested records, with names, addresses and social security numbers redacted, contending that such information was necessarily withheld since objections to disclosure of such information were filed by ECI and its employees.
9. It is found that, by letter dated December 14, 1999, the complainants again requested that the respondent attorney provide them with copies of certified payroll records filed by ECI for the project, and stated that redaction of employee names and addresses would not be acceptable.
10. By letter dated and filed with the Commission on December 22, 1999, the complainants alleged that the respondents violated the Freedom of Information [hereinafter “FOI”] Act by failing to provide the copies described in paragraph 9, above.
11. It is found that, by letter dated December 23, 1999, the respondent attorney informed the complainants that it had provided the information requested on December 14, 1999, on two previous occasions, July 12, 1999, and October 18, 1999.
12. 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….
13. Section 1-212, G. S. [formerly §1-15, G.S.], provides in relevant part:
(a)
Any person applying in writing shall receive, promptly upon request, a
plain….copy of any public record. The
fee for any copy provided in accordance with the Freedom of Information Act….
shall not exceed fifty cents per page….
14. It is concluded that the requested records are public records within the meaning of §1-210(a), G.S. [formerly §1-19(a), G.S.].
15. At the hearing in this
matter, the complainants contended that they do not seek the social security
numbers of ECI employees; rather, the complainants seek copies of the
requested certified payroll records, with names and addresses included. Accordingly, the complaint herein is limited to the
disputed names and addresses.
16. At the hearing in this matter and on brief, the intervening Commissioner of Labor contended that the disputed names and addresses must be disclosed upon request pursuant to §31-53(f), G.S., and that, in the alternative, such records are not exempt from mandatory disclosure under the FOI Act.
17. At the hearing in this matter, the respondent attorney contended that the disputed names and addresses were redacted as described in paragraphs 5 and 8, above, because of the objections filed as described in paragraphs 4 and 7, above; the respondent attorney also represented that he would abide by the forthcoming order of the Commission in this matter.
18. At the hearing in this matter, and on brief, the respondent ECI contended that the names and addresses are exempt from mandatory disclosure pursuant to §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.]
19. Section 31-53(f), G.S., provides in relevant part:
[e]ach employer subject to the provisions of this section or section 31-54 shall (1) keep, maintain and preserve such records relating to the wages and hours worked by each employee and a schedule of the occupation or work classification at which each mechanic, laborer or workman on the project is employed during each work day and week in such manner and form as the Labor Commissioner establishes to assure the proper payments due to such employees or employee welfare funds under this section or section 31-54, and (2) submit monthly to the contracting agency a certified payroll which shall consist of a complete copy of such records accompanied by a statement signed by the employer which indicates that (A) such records are correct; (B) the rate of wages paid to each mechanic, laborer or workman and the amount of payment or contributions paid or payable on behalf of each such employee to any employee welfare fund, as defined in subsection (h) of this section, are not less than the prevailing rate of wages and the amount of payment or contributions paid or payable on behalf of each such employee to any employee welfare fund, as determined by the Labor Commissioner pursuant to subsection (d) of this section, and not less than those required by the contract to be paid; (C) the employer has complied with the provisions of this section and section 31-54; (D) each such employee is covered by a workers' compensation insurance policy for the duration of his employment, which shall be demonstrated by submitting to the contracting agency the name of the workers' compensation insurance carrier covering each such employee, the effective and expiration dates of each policy and each policy number; (E) the employer does not receive kickbacks, as defined in 41USC 52, from any employee or employee welfare fund; and (F) pursuant to the provisions of section 53a-157a, the employer is aware that filing a certified payroll which he knows to be false is a class D felony for which the employer may be fined up to five thousand dollars, imprisoned for up to five years, or both. This subsection shall not be construed to prohibit a general contractor from relying on the certification of a lower tier subcontractor, provided the general contractor shall not be exempted from the provisions of section 53a-157a if he knowingly relies upon a subcontractor's false certification. Notwithstanding the provisions of section 1-210, the certified payroll shall be considered a public record and every person shall have the right to inspect and copy such records in accordance with the provisions of section 1-212. The provisions of sections 31-59(a), 31-59(b), 31-66 and 31-69 which are not inconsistent with the provisions of this section or section 31-54 shall apply to this section. Failing to file a certified payroll pursuant to subdivision (2) of this subsection is a class D felony for which the employer may be fined up to five thousand dollars, imprisoned for up to five years, or both.
[Emphasis added].
20. It is found that the requested records are certified payroll records within the meaning of §31-53(f), G.S.
21. ECI first relies on Hopkins v. HUD, 929 F.2d 81 (2d Cir. 1991); Sheet Metal Workers Int’l Ass’n. v. U.S. Dept. of Veteran’s Affairs, 135 F.3d 891 (3d. Cir. 1998), and other federal precedents, which hold that unions are not entitled to federal certified payroll records on privacy grounds. However, in light of the clear language of §31-53(f), G.S., it is concluded that certified payroll records filed pursuant to §§31-53 or 31-54, G.S., are subject to disclosure to every person, regardless of identity or motive, and, further, that exemptions found in §1-210, G.S, are inapplicable to such records.
22. ECI next contends that §31-53(f), G.S., does not require that names and addresses of employees be included in the certified payroll records, nor is there an explicit requirement that employee names and addresses be disclosed to the public.
23. Section 31-60-12, Regulations of Connecticut State Agencies, provides that:
(a) For the purpose of this regulation, "true and accurate records" means accurate legible records for each employee showing: (1) His name; (2) his home address; (3) the occupation in which he is employed; (4) the total daily and total weekly hours worked, showing the beginning and ending time of each work period, computed to the nearest unit of fifteen minutes; (5) his total hourly, daily or weekly basic wage; (6) his overtime wage as a separate item from his basic wage; (7) additions to or deductions from his wages each pay period; (8) his total wages paid each pay period; (9) such other records as are stipulated in accordance with sections 31-60-1 through 31-60-16; (10) working certificates for minor employees (sixteen to eighteen years). True and accurate records shall be maintained and retained at the place of employment for a period of three years for each employee.
(e) The employer shall maintain and retain for a period of three years the following information and data on each individual employed in a bona fide executive administrative or professional capacity: (1) His name; (2) his home address; (3) the occupation in which he is employed; (4) his total wages paid each work period; (5) the date of payment and the pay period covered by payment.
24. ECI contends that §31-60-12, Regulations of Connecticut State Agencies, which clearly mandates that names and addresses be included in certified payroll records, should not apply, since such regulation was in effect prior to 1993 legislation which amended §31-53(f), G.S., to its present form, and since the Department of Labor did not promulgate a new regulation mandating that names and addresses be included in certified payroll records after such legislation.
25. However, based upon the testimony presented at the hearing in this matter, it is found that the Commissioner of Labor interprets §31-60-12, Regulations of Connecticut State Agencies, to apply to certified payroll records filed under §31-53(f), G.S., and further, that the Department of Labor routinely permits inspection of certified payroll records, including employee names and addresses, pursuant to §31-53(f), G.S., and §31-60-12, Regulations of Connecticut State Agencies.
26. Based upon the foregoing, it is concluded that the requested certified payroll records, including the disputed names and addresses, are subject to mandatory disclosure pursuant to §31-53(f), G.S., and that the exemption set forth in to §1-210(b)(2), G.S. cannot apply to such records. Moreover, it should be noted that, absent the requirements of §31-53(f), G.S., the disputed names and addresses would not meet the test of such exemption.
27. Section 1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.], in relevant part provides for the nondisclosure of:
personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.
28. The Supreme Court set forth the test for the §1-210(b)(2), G.S., [formerly §1-19(b)(2), G.S.], exemption in Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993). Specifically, 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.
29. Without finding that the certified payroll records are personnel, medical or similar files, it is found that they pertain to legitimate matters of public concern, as is evidenced by the requirements of §31-53, G.S. It is also found that release of such information would not be highly offensive to a reasonable person within the meaning of Perkins.
30. The Commission notes that the respondent town attorney withheld the disputed names and addresses from the complainants because of the objections received, as described in paragraphs 4 and 7, above.
31. 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…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….
[Emphasis added.]
32. 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 (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….
[Emphasis added.]
33. It is found that ECI and its employees are not employees of the Town of Hamden within the meaning of §1-214(b), G.S. [formerly §1-20a(b), G.S.]. Therefore, it is concluded that the respondent attorney was not compelled by §1-214(c), G.S. [formerly §1-20a(c), G.S.], to deny the complainants copies of the unredacted certified payroll records requested records upon receipt of the objections described in paragraphs 4 and 7, above.
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 complainants with a copy of the requested certified payroll records, including names and addresses of employees, free of charge.
Approved by Order of the Freedom of Information Commission at its regular meeting of
May 10, 2000.
_________________________
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:
Robert L. Corraro and IBEW Local 90
45 Water Street
P.O. Box 8145
New Haven, CT 06530
Town Attorney, Town of Hamden
c/o Susan Gruen, Esq.
Memorial Town Hall
2372 Whitney Avenue
Hamden, CT 06518
Electrical Contractors, Inc.
c/o Steven B. Kaplan, Esq.
Michelson, Kane, Royster & Barger, P.C.
93 Oak St.
Hartford, CT 06106-1552
Commissioner, State of Connecticut, Department of Labor
c/o Beth Z. Margulies, Esq.
Assistant Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120
__________________________
Melanie R. Balfour
Acting Clerk of the Commission
FIC1999-606FD/mes/05/11/00