FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Ron Robillard and the Chronicle,

 

Complainant

 

 

against

Docket #FIC 2000-095

Chairman, Board of Education, Eastford
Public Schools; and Board of Education,
Eastford Public Schools,

 

 

Respondents

June 28, 2000

 

 

 

 

The above-captioned matter was heard as a contested case on May 8, 2000, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  Mr. Stephen B. Hosmer, Superintendent of Eastford Public Schools, was permitted to intervene as a party respondent in the above-captioned case.  For purposes of hearing, this case was consolidated with Docket #FIC 2000-093, Megan J. Bard and The Norwich Bulletin v. Chairman, Board of Education, Eastford Public Schools; and Board of Education, Eastford Public Schools.

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.

 

2.   By letter dated February 8, 2000, the complainants, through their reporter, Jeannine S. Loughlin, requested all the information and documentation pertaining to the allegations of sexual harassment that were made against the Superintendent of Schools, Stephen B. Hosmer. 

 

3.   It is found that the records requested consist of an investigation report and the written disciplinary recommendation of the personnel committee of the respondent board (hereinafter “investigative file”) which records were submitted by the respondents to the Commission for in-camera inspection.  The records have been identified as in-camera document #s 2000-095-01A through 2000-095-13A, with respect to the investigation report and in-camera document #s 2000-095-01B through 2000-095-2B with respect to the disciplinary recommendation of the personnel committee.  

 

4.   It is found that the respondents believed that disclosure of the investigation file would constitute an invasion of the personal privacy of the victim, the accused and the witnesses mentioned in the investigation file and provided them with an opportunity to object to the disclosure of the file pursuant to §§1-210(b)(3) and 1-214(b), G.S.

 

5.   It is found that by letter dated February 10, 2000, Mr. Hosmer provided the respondents with a written objection, which conforms to the requirements of §1-214, G.S.

 

6.   On or about February 14, 2000, the respondent chairman, via telephone, denied the complainants’ request after the respondent board voted to honor the objection at its meeting of February 11, 2000.

 

7.   By letter dated February 15, 2000, and filed on February 29, 2000, the complainants appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying their request as described in paragraph 2, above.

 

8.   Section 1-210(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 receive a copy of such records in accordance with the provisions of section 1-212.  Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.”  

 

9.   Section 1-212(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 . . . .”

 

10.  It is found that the requested records are public records within the meaning of §1-210(a), G.S.

 

11.  The respondents contend that the investigation file is exempt from mandatory disclosure pursuant to §1-210(b)(2), G.S., because it is a personnel record and disclosure of the file would constitute an invasion of the personal privacy of the subjects of the records.  The respondents also contend that, in the event the Commission does not uphold its decision to withhold the investigative file, they should be allowed to redact the name, and any other personally identifiable information, of the victim because victims of sexual harassment should be treated the same as victims of sexual assault.  The respondents further contend that they should be allowed to redact the names of the witnesses as well, because disclosure of those names would compromise the integrity of investigations of future sexual harassment complaints since witnesses may not be as forthcoming and candid if confidentiality could not be guaranteed.    

 

12.  The intervenor contends that disclosure of the investigation file would be an invasion of his personal privacy within the meaning of §1-210(b)(2), G.S.  The intervenor argues that because the details of the investigation file are of personal relationships, there is no legitimate public interest in the information contained therein, citing  Department of Public Safety, Division of State Police v. Freedom of Information Commission, et al., 242 Conn. 79 (1997), as authority for this argument.  The intervenor also argues that the investigation file is an evaluation and that evaluations conducted under appropriate confidential circumstances with an expectation of privacy by those who participated in the evaluation are non-disclosable pursuant to First Selectman v. Freedom of Information Commission, WL59726 (Conn. Super. Ct 1999).  The intervenor further argues that disclosure of the investigation file would be highly offensive to him because the records contain information beyond the scope of the complaint and contain allegations and/or comments to which he was not given an opportunity to respond, which allegations and/or comments would be damaging to both his personal and professional reputation. 

 

13.  Section 1-210(b)(2), G.S., provides in relevant part that nothing in the FOI Act shall require the disclosure of “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .”

 

14.  In Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993), the Supreme Court set forth the test for the exemption contained in §1-210(b)(2), G.S.  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. 

 

15.  The complainants argued that the investigation file is not a personnel file or similar file but rather an administrative record or a record similar to a financial audit because, at least with respect to the investigation report, the file was generated by an entity independent of the respondent board.

 

16.  However, the Superior Court in Connecticut Alcohol and Drug Abuse Commission, et al. v.  Freedom of Information Commission, et al., 233 Conn. 28 (1995), held that sexual harassment investigation reports constitute “similar” files within the meaning of §1-210(b)(2), G.S.  

 

17.  It is found that the investigative file constitutes a “personnel” or “similar file” within the meaning of §1-210(b)(2), G.S.

 

18.  With respect to the intervenor’s argument that there is no legitimate public interest in the requested records, the Supreme Court in Department of Public Safety, supra, upheld the trial court’s decision that there is no legitimate public interest in “disclosure of a report describing the details of . . . [a public official’s] personal and marital relationships.”  However, Department of Public Safety, supra, can be distinguished from the present case.  In Department of Public Safety, supra, the investigation in that case “did not focus on the conduct of the [public official’s] official business,” while the investigation in this case focuses on how the Superintendent conducted himself on a day to day basis in his official capacity as Superintendent of Schools and the direct supervisor of the alleged victim.

 

19.  It is concluded therefore that Department of Public Safety, supra, is not applicable in this case.

 

20.  In regards to the intervenor’s argument that the investigation file is an evaluation similar to that in First Selectman, supra, and should be treated the same, it is found that the investigation file is not a performance evaluation.  It is further found that, unlike the circumstance in First Selectman, supra, there were no other circumstances that would have given to the intervenor in this case an expectation of privacy beyond the investigating attorney’s representation of confidentiality.  Furthermore, §10-151c, G.S., explicitly excludes Superintendents evaluations from exemption as teacher evaluations.  In Kureczka v. Freedom of Information Commission, 228 Conn. 271, 277 (1994), the Supreme Court ruled that “the Commission cannot be barred from ordering disclosure of information that it has otherwise properly found not to constitute an invasion of privacy simply because of the erroneous determination by a government agency that such information should be confidential and its representations to that effect.” 

 

21.  Moreover, it is found that the investigation file pertains to a serious matter of the public’s business and it is therefore concluded that the records are a matter of legitimate public concern.

 

22.  Furthermore, after careful review of the in-camera documents, it is found that while the information contained in the investigation file may be personally embarrassing to the Superintendent, disclosure of the investigation file, and the information contained therein, would not be highly offensive to a reasonable person within the meaning of Perkins, supra. 

 

23.  It is therefore concluded that disclosure of the investigation file would not be an invasion of personal privacy within the meaning of Perkins, supra, and is not exempt from disclosure under §1-210(b)(2), G.S.

 

24.  It is also concluded that the respondents violated the disclosure provisions of §1-210(a), G.S., by failing to provide the complainants with a copy of the records described in paragraphs 2 and 3, above.

 

  

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 complainants with a copy of the records described in paragraphs 2 and 3 of the findings, above, free of charge.

 

 

 

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

June 28, 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:

 

 

Ron Robillard and the Chronicle

One Chronicle Road

Willimantic, CT  06336

 

 

Chairman, Board of Education, Eastford Public Schools; and Board of Education,

Eastford Public Schools

c/o Atty. William R. Connon

Sullivan, Schoen, Campane & Connon, LLC

646 Prospect Avenue

Hartford, CT  06105

 

Stephen Hosmer

c/o Atty. John Gesmonde

Gesmonde, Pietrosimone, Sgrignari & Pinkus, LLC

3127-3129 Whitney Avenue

Hamden, CT 06518-2344

 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

 

FIC2000-095FD/mrb/07/06/00