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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Complainant |
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against |
Docket #FIC 2000-474 |
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Chief,
Police Department, |
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Respondents |
January 24, 2001 |
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The above-captioned matter was heard as a contested
case on September 25, 2000, at which time the complainants and the respondent
appeared, stipulated to certain documents 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 respondent is a
public agency within the meaning of §1-200(1),
G.S.
2.
It is found that on
July 25, 2000, a reporter of the complainant Journal Inquirer (hereinafter “complainant
Inquirer”) made an oral request to the Police Department of the Town of
Windsor Locks for a copy of the police internal investigation report
pertaining to allegations of misuse of town property (hereinafter “report”).
3.
It is found that the
subjects of the investigation were three town employees.
4.
It is further found
that by letter dated August 8, 2000, the respondent informed the complainants
that he had received written objections to the disclosure of the report from
two of the subjects of the investigation and that the report provided to the
complainants had been redacted to protect the privacy interests of the
objecting employees.
5.
By letter to the
respondent dated August 10, 2000, the complainants objected to the redactions
to the report, claiming that the respondent had misapplied the privacy
exemption.
6.
By letter dated
August 24, 2000 and filed on August 25, 2000 the complainants appealed to this
Commission alleging that the respondent violated the Freedom of Information (“FOI”)
Act by redacting the names of the employees from the copy of the report
provided to them. The complainant
requested that the Commission consider imposing a civil penalty against the
respondent’s counsel for providing “bad legal advice” to the respondent
regarding the application of §1-210(b)(2), G.S. and §1-214, G.S., to the
report at issue in this case.
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.
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
. . . .”
9.
It is found that the
report is a public record within the meaning of §1-210(a), G.S.
10.
The respondent
contends that the report constitutes a personnel or similar file within the
meaning of §1-210(b)(2), G.S., and that disclosure of the employees’ names,
in conjunction with the information contained in the report, would be highly
offensive to a reasonable person and would therefore constitute an invasion of
such employees personal privacy. The
respondent also contends that the privacy interest of the subject employees
outweighs the public interest in disclosure.
The respondent further contends that the names should not be disclosed
because there is no criminal action pending against the subject employees.
11.
It is found that the
subject employees did not appear at the hearing on this matter, however, they
sent a representative who articulated their objections to the disclosure of
certain passwords and screen names contained in the report, claiming that such
passwords and screen names are very personal in nature.
12.
At the hearing on
this matter, the complainants agreed to the redaction of any passwords or
screen names contained in the report.
13.
Section 1-210(b)(2),
G.S., provides in relevant part that nothing in the FOI Act shall require
disclosure of “. . . personnel
or medical files and similar files the disclosure of which would constitute an
invasion of personal privacy . . . .”
14.
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.”
15.
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.
16.
It is found that the
report is a personnel file or similar file within the meaning of
§1-210(b)(2), G.S.
17.
It is found, however,
that while the respondent testified that he determined that disclosure of the
names of the employees would constitute an invasion of privacy before he
provided notice to such employees, there is no evidence that he made a
determination as to whether disclosure would legally constitute an
invasion of personal privacy because the information sought does not pertain
to a legitimate matter of public concern and that the information is highly
offensive to a reasonable person.
18.
It is found that the
respondent failed to make the required legal determination under
§1-210(b)(2), G.S., which is a prerequisite to providing notice to the
employees under §1-214(b), G.S.
19.
Notwithstanding the
finding in paragraph 17, above, the Commission conducted an in-camera review
of the report in both its un-redacted and redacted forms which have been
described by the Commission as in-camera document #s FIC 2000-474-1A through
2000-474-37A and in-camera document #s FIC2000-474-1B through 2000-474-33B
respectively.
20.
After careful review
of the in-camera documents, it is found that the report pertains to matters
concerning the conduct of the public’s business insofar as it discloses: the
identities of public employees who were held responsible for the misuse of
town equipment; exactly which equipment was at issue and how and when such
equipment was misused; and the manner in which the respondent investigated the
allegations of misuse of town equipment.
21.
It is found,
therefore, that the information contained in the report constitutes a
legitimate matter of public concern.
22.
It is further found
that while disclosure of an un-redacted copy of the report may be
embarrassing, there is no evidence that disclosure would be highly offensive
to a reasonable person within the meaning of Perkins, supra.
23.
It is therefore
concluded that disclosure of the requested records would not constitute an
invasion of personal privacy within the meaning of §§1-210(b)(2) and
1-214(b), G.S., under the facts and circumstances of this case.
24.
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.
25.
The Commission
declines to consider the complainants’ request for the imposition of a civil
penalty in this case.
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 un-redacted documents responsive to the request as described in paragraph 2 of the findings, above.
2. In complying with paragraph 1 of the order, above, the respondent may redact the passwords, the screen names, and the name found on in-camera document FIC2000-474-6A (page 5 as numbered by the respondent) at line 17.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 24, 2001.
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Petrea A. Jones
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,
c/o Kevin Flood
306 Progress Drive, PO Box 510
Manchester, CT 06045-0510
Chief,
Police Department,
Town
of Windsor Locks
c/o
Christopher Stone, Esq.
Chadwick,
Libby & Stone
555
Franklin Avenue
Hartford,
CT 06114
___________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2000-474/FD/paj/01/25/2001