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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Leo F. Smith, |
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Complainant |
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against |
Docket #FIC 1999-560 |
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Robert
H. Skinner, First Selectman, |
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Respondents |
July 12, 2000 |
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The above-captioned matter was heard as a contested
case on March 22, 1999, at which time the complainant and the respondents
appeared, stipulated to certain facts and presented testimony, exhibits and
argument on the complaint. For
purposes of hearing the above-captioned complaint was consolidated with Docket
#s FIC 1999-525, Leo F. Smith v. John P. Lange, Human Resources Director,
Town of Suffield; and Department of Human Resources, Town of Suffield;
1999-547, Leo F. Smith v. John P. Lange, Human Resources Director, Town of
Suffield; and Department of Human Resources, Town of Suffield; and
1999-548, Leo F. Smith v. John P. Lange, Human Resources Director, Town of
Suffield; and Department of Human Resources, Town of Suffield.
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
November 18, 1999, the complainant made a request to the respondents for a
copy of the written opinion by Suffield Town Counsel, Justin Donnelly, in
reference to the release by a town employee of the August 23, 1999 letter from
the North Central District Health Department to Scot Guilmartin.
3.
It is found that by
letter dated November 23, 1999, the respondents denied the complainant’s
request.
4.
By letter dated
November 23, 1999 and filed on November 26, 1999, the complainant appealed to
this Commission alleging that the respondents violated the Freedom of
Information (“FOI”) Act by failing to comply with his request.
5.
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 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.”
6.
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.].
7.
It is found that upon
receipt of a prior request, the subject of the record was provided with an
opportunity to object to the disclosure of the record pursuant to
§1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.] and §1-214(c), G.S.
[formerly §1-20a(c), G.S.] and submitted a written objection on November 17,
1999.
8.
It is found that the
respondents understood the objection by the subject of the record to apply to
records related to that request and to any similar request made by anyone at
anytime.
9.
It is also found that
on or about December 16, 1999, the subject of the record withdrew her
objection and the respondents provided the complainant with the requested
record.
10.
Section 1-210(b)(2),
G.S. [formerly §1-19(a), 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 . . . .”
11.
Section 1-214(b), G.S.
[formerly §1-20a(b), G.S.], provides in relevant part that:
“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.”
12.
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.
[formerly §1-19(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.
13.
However,
the complainant contends that the respondents had no reasonable belief that
disclosure of the requested records would constitute an invasion of personal
privacy within the meaning of Perkins and should have never provided
the subject with an opportunity to object to the disclosure of them.
As a result, the complainant further contends, the respondents violated
§1-210(a), G.S. [formerly §1-19(a), G.S.] by failing to promptly comply with
his request.
14.
It is found that the
custodian of the records, which was the Human Resources Director of the Town
of Suffield, felt that the nature of the records and the small size of the
town justified withholding the records from disclosure to protect the identity
of the subject of the records and initiated the course of action taken with
respect to the records which action was conceded to by the respondents.
15.
It is found that the
respondent selectman did not determine whether disclosure would legally
constitute an invasion of personal privacy by determining, first, that the
information sought does not pertain to a legitimate matter of public concern
and, second, that the information is highly offensive to a reasonable person.
16.
It is found that the
respondent selectman failed to make the appropriate legal determination, which
is a prerequisite to providing notice to the employees under §1-214(b), G.S.
[formerly §1-20a(b), G.S.].
17.
It is therefore
concluded that the respondents violated the disclosure provisions of
§1-210(a), G.S. [formerly §1-19(a), G.S.], and its duties under §1-214(b),
G.S. [formerly §1-19(a), G.S.].
18.
The complainant’s
request for the imposition of a civil penalty is denied.
On
the basis of the record in the above-captioned complaint, no order is
recommended to the Commission.
Approved by Order of the Freedom of Information Commission at its regular meeting of
July 12, 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:
Leo F. Smith
1060 Mapleton Avenue
Suffield, CT 06078
Robert
H. Skinner, First Selectman, Town of Suffield; and Selectmen’s Office, Town
of Suffield
c/o Atty. Edward G. McAnaney
McAnaney & McAnaney
Suffield Village
Suffield, CT 06078
__________________________
Melanie R. Balfour
Acting Clerk of the Commission
FIC1999-560FD/mrb/07/14/00