FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Robert H. Boone and Journal Inquirer,

 

Complainant

 

 

against

Docket #FIC 2000-137

Metropolitan District Commission,

 

 

Respondents

July 12, 2000

 

 

 

 

The above-captioned matter was heard as a contested case on May 17, 2000, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  Local 1026, Council 4, AFSCME requested, and was granted, intervenor status in the above-captioned matter.

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

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

 

2.   By letter dated February 25, 2000 to the respondent, the complainants, through their staff writer, Julie Sprengelmeyer, made a request for access to records identifying the individual employees by name and the discipline each received for their alleged negligent involvement in the fire which destroyed the respondent’s composting facility in December of 1999.

 

3.   By letter dated February 29, 2000, to Ms. Sprengelmeyer, the respondent, citing §1-214, G.S., informed the complainants that because the request was for information and records contained in the employees’ personnel and/or similar files, notice had been provided to the six employees involved, and to their collective bargaining representatives, of the request and that until the time period for a response had expired, a decision regarding disclosure would not be made. 

 

4.   It is found that the respondent received timely written objections to disclosure of the requested records from five of the six employees and one from the collective bargaining unit.

 

5.   By letter dated March 13, 2000 to Ms. Sprengelmeyer, the respondent informed the complainants that it received written objections to the disclosure of the requested records and that pursuant to §1-214, G.S., the request was denied.

 

6.      By letter dated March 15, 2000, and filed on March 16, 2000, the complainants appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI) Act by failing to comply with their request.  The complainants requested the imposition of a civil penalty. 

 

7. 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.”

 

8.  It is found that the requested records, to the extent such records exist, are public records within the meaning of §1-210(a), G.S.

 

9.      At the hearing on this matter, the respondent argued that §1-214, G.S. is a notice statute, which requires the respondent to provide an employee with notice of, and an opportunity to object to, the complainants’ request if it determines that the records requested would impact the personal privacy of the employees.

 

10.  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 . . . .”

 

11.  Section 1-214(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.  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.     It is found that the respondent 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, secondly, that the information is highly offensive to a reasonable person. The respondent only determined that the requested records would impact the personal privacy of the employees.

 

14.     It is found that the respondent failed to make the appropriate legal determination, which is a prerequisite to providing notice to the employees under §1-214(b), G.S.

 

15.     At the hearing on this matter, the intervenor argued that because three of the employees were then involved in a grievance proceeding regarding the disciplinary actions taken against them for their alleged involvement in the fire, the records should not be disclosed.

 

16.     It is found that the intervenor has not claimed an applicable exemption to disclosure under the FOI Act.

 

17.       Moreover, it is found that the requested records pertain to a matter concerning the conduct of the public’s business.

 

18.     It is further found that the records pertain to a legitimate matter of public concern in that they disclose the identities of public employees held responsible by the respondent for the fire in question and the disciplinary action taken as a result the actions as public employees.

 

19.     It is also found that there is no evidence in the record to support a finding that disclosure of the requested records would be highly offensive to a reasonable person within the meaning of Perkins, supra.

 

20.     It is therefore concluded that the disclosure of the requested records would not be an invasion of personal privacy within the meaning of §§1-210(b)(2) and 1-214(b), G.S.

21.     It is further concluded that the respondent violated the disclosure provisions of §1-210(a), G.S., and its duties under §1-214(b), G.S.

 

22.     The complainant’s request for the imposition of a civil penalty is denied.

 

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.

 

            1.  The respondent shall forthwith provide the complainants with any and all documents responsive to the request as described in paragraph 2 of the findings, above.

 

 

 

 

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:

 

 

Robert H. Boone and Journal Inquirer

306 Progress Drive, PO Box 510

Manchester, CT  06045-0510

 

 

Metropolitan District Commission

c/o Atty. Anthony J. Palermino

945 Wethersfield Avenue

Hartford, CT  06114-3137

 

 

Local 1026, Council 4, AFSCME

Richard F. Smith, Jr.

125 Maxim Road

Hartford, CT  06114

 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

FIC2000-137FD/mrb/07/17/00