FREEDOM OF
INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
|
Karen Guzman and The Hartford Courant, |
|||
| Complainants | |||
| against | Docket #FIC 2001-364 | ||
| City of New Britain, | |||
| Respondent | June 26, 2002 | ||
The above-captioned matter was heard as a contested case on March 7, 2002, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. At the hearing on this matter, Hudson Birden, Jr., Health Director for the City of New Britain, requested and was granted status as a party respondent.
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 to an assistant corporation counsel for the respondent City dated July 12, 2001, the complainants requested “any and all documentation, correspondence and reports related to any allegations of sexual harassment, and any other misconduct, made against City Health Director Hudson Birden, Jr.”
3. By letter dated July 13, 2001 the respondent City through its counsel notified Mr. Birden, the individual against whom allegations had been filed, of the complainants’ request and inquired whether he objected to disclosure of the requested records.
4. On or about July 13, 2001, Mr. Birden indicated in writing that he objected to the disclosure of the requested records.
5. By letter to the complainants dated July 17, 2001, the respondent City, through its counsel, notified the complainants of Mr. Birden’s objection to disclosure and denied the complainants’ request.
6. By letter dated July 31, 2001 and filed August 1, 2001, the complainants appealed the respondent City’s denial of access to the requested records to this Commission.
7. Section 1-210(a), G.S., provides in relevant part that:
Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency…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.
8. It is found that the respondent City conducted an investigation into the allegations against Mr. Birden and that such investigation was completed as of the time of the complainants’ request..
9. It is further found that the respondent City maintains records responsive to the complainants’ request and that such records are public records within the meaning of §1-210(a), G.S.
10. 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….”
11. The respondent submitted the requested records to the Commission for an in camera inspection at the conclusion of the March 7, 2002 hearing on this matter, which records consist of five groupings of records, marked by the Commission as in camera document #s 2001-364-I through 2001-364-V, respectively.
12. It is found that the records submitted for in camera inspection have been identified as an investigator’s file (#2001-364-I); general correspondence, memoranda and pleadings (#2001-364-II); summary investigation notes (#2001-364-III); notes, summaries of meetings, proposals, strategies (#2001-364-IV); and other correspondence (#2001-364-V).
13. The respondents maintain that the subject records are exempt because their disclosure would constitute an invasion of personal privacy.
14. In addition, the respondent City claims that the groupings of records comprising in camera document #s2001-364-I are exempt from disclosure because they constitute preliminary drafts or notes, and that the records comprising in camera document #2001-364-V are exempt from disclosure because they constitute attorney-client privileged communications.
15. With respect to the respondents’ claim that disclosure of the requested records would constitute an invasion of privacy, §1-210(b)(2), G.S., permits the nondisclosure of “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.” The respondents did not catalogue the requested records or identify with any precision the reason why any of the records, or portions thereof, were exempt from disclosure pursuant to §1-210(b)(2), G.S, as required by §1-21j-37(f)(2) of the Regulations of Connecticut State Agencies. Rather, the respondents simply produced the requested records and made a blanket claim of exemption with respect thereto.
16. 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.
17. It is found that the requested records are “similar” files within the meaning of §1-210(b)(2), G.S. See, Connecticut Alcohol and Drug Abuse Commission, et al., v. Freedom of Information Commission, et al., 233 Conn. 28 (1995).
18. In Rocque v. Freedom of Information Commission, et al., 225 Conn. 651, 665 (2001), the Supreme Court concluded that sexually explicit information contained in records concerning allegations of sexual harassment, such as the allegations and descriptions of sexual contact and sexual improprieties, and details of intimate personal relationships, is not a legitimate matter of public concern. The court further concluded in that case that information concerning the complaining individual’s identity was also not a legitimate matter of public concern because the disclosure of such information would not lend anything to an examination of the agency’s investigative process. Supra at 664.
19. After a thorough review of the requested records submitted in camera, it is found that a significant amount of the information contained in the requested records is of legitimate public concern insofar as it reveals how a municipal agency investigates allegations of sexual harassment – e.g., the agency’s procedures with respect to the manner and methodology of discussing the allegations with both the individual who filed the complaint and the individual against whom the complaint was filed; the procedures and techniques for questioning of witnesses, and the overall scope and breadth of such investigation.
20. It is further found however, that certain portions of the requested records contain sexually explicit information of the nature described in Rocque, supra, and paragraph 18, above, that consequently is not a legitimate matter of public concern. Further, it is found that information contained in the requested records that would identify the individual who filed the complaint, including her name, address, family or medical information, job title and work location, as well as information that would identify witnesses who worked with the individual who filed the complaint and/or Mr. Birden, including their names, addresses, telephone numbers, job titles, and any other information that might directly or indirectly identify the individual who filed the complaint, are likewise not a legitimate matter of public concern under the Rocque decision.
21. It is further found, with respect to those records or portions of records described in paragraph 20, above, that disclosure of such information, under the Rocque decision, would be highly offensive to a reasonable person.
22. It is further found however, that disclosure of the remaining portions of the requested records, other than those records or portions of records described in paragraph 20, above, would not be highly offensive to a reasonable person.
23. It is therefore concluded that disclosure of those portions of the records described in paragraph 20, above, would constitute an invasion of personal privacy and that such portions of the records are permissibly exempt from disclosure pursuant to §1-210(b)(2), G.S.
24. It is further concluded, however, that the remaining records or portions of records at issue are not exempt from disclosure pursuant to §1-210(b)(2), G.S.
25. With respect to the respondent City’s claim that the records comprising in camera document #2001-364-I are exempt from disclosure because they are preliminary drafts or notes, §1-210(b)(1), G.S., permits the nondisclosure of “preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.”
27. It is therefore concluded that the respondent City failed to prove that the records contained in in camera document #2001-364-I are exempt from disclosure pursuant to §1-210(b)(1), G.S.
28. With respect to the respondent City’s claim that the records comprising in camera document #2001-364-V are exempt from disclosure because they consist of attorney-client privileged communications, §1-210(b)(10), G.S., in relevant part, permits the nondisclosure of “communications privileged by the attorney-client relationship….”
29. The applicability of the §1-210(b)(10), G.S., exemption is governed by established Connecticut law defining the privilege. That law is well set forth in Maxwell v. FOI Commission, 260 Conn. 143 (2002). In that case, the Supreme Court stated that §52-146r, G.S., which established a statutory privilege for communications between public agencies and their attorneys, merely codifies “the common-law attorney-client privilege as this court previously had defined it.” Id. at 149.
30. Section 52-146r(2), defines “confidential communications” as:
all oral and written communications transmitted in confidence between a public official or employee of a public agency acting in the performance of his or her duties or within the scope of his or her employment and a government attorney relating to legal advice sought by the public agency or a public official or employee of such public agency from that attorney, and all records prepared by the government attorney in furtherance of the rendition of such legal advice. . . .
31. The Supreme Court has also stated that “both the common-law and statutory privileges protect those communications between a public official or employee and an attorney that are confidential, made in the course of the professional relationship that exists between the attorney and his or her public agency client, and relate to legal advice sought by the agency from the attorney.” Maxwell, supra at 149.
32. In camera document #2001-364-V consists of two memoranda: one from an assistant corporation counsel for the respondent City to the respondent City’s personnel director, dated May 24, 2001; and one from the assistant corporation counsel to the respondent City’s Board of Health Commissioners, dated June 18, 2001.
33. With regard to the first memorandum dated May 24, 2001 contained in in camera document #2001-364-V, it is found that the memorandum does not relate to legal advice sought by the respondent from its attorney, nor is it a record prepared by the respondent City’s attorney in furtherance of the rendition of legal advice. Rather, the memorandum consists of a factual accounting, as relayed to the attorney by a third party, of a situation that came up during the course of the sexual harassment investigation. It is concluded that the May 24, 2001 memorandum does not constitute an attorney-client privileged communication within the meaning of §1-210(b)(10), G.S.
34. With regard to the second memorandum dated June 18, 2001 contained in in camera document #2001-364-V, it is found that the memorandum consists of legal advice given to the respondent City from its attorney concerning resolution of the sexual harassment allegation and the proposed terms of such resolution. It is concluded that the June 18, 2001 memorandum constitutes an attorney-client privileged communication within the meaning of §1-210(b)(10), G.S.
35. It is concluded therefore that the May 24, 2001 memorandum is not exempt from disclosure pursuant to §1-210(b)(10), G.S., but the June 18, 2001 memorandum is exempt from disclosure pursuant to the terms of such provision.
36. Finally, it is concluded that the respondent violated the provisions of §1-212(a), G.S., by failing to provide the complainants with a copy of the requested records, with the exception of: those portions containing sexually explicit information, and information that would reveal, either directly or indirectly, the identity of the individual who filed the sexual harassment complaint, as described in paragraph 20, above; and the June 18, 2001 memorandum contained in in camera document #2001-364-V, as described in paragraph 34 and 35, above.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Forthwith, the respondent City shall provide the complainant with a copy of the requested records, free of charge.
2. In complying with paragraph 1 of the order, above, the respondent City may redact those records or portions of the records concluded to be exempt from disclosure pursuant to §1-210(b)(2), G.S., as described in paragraph 20, of the findings, above, and the June 18, 2001 memorandum contained in in camera document #2001-364-V, concluded to be exempt from disclosure pursuant to §1-210(b)(10), G.S., as described in paragraphs 34 and 35, of the findings, above.
Approved by Order of the Freedom of Information Commission at its regular meeting of June 26, 2002.
_______________________________________
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:
Karen Guzman and The Hartford Courant
c/o Jesse Leavenworth
40 South Street
New Britain, CT 06051
City of New Britain
c/o Irena J. Urbaniak, Esq.
City Attorney
Office of Corporation Counsel
City of New Britain
City Hall, 27 West Main Street
New Britain, CT 06051
Hudson Birden, Jr.
New Britain Health Department
31 High Street
New Britain, CT 06051
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-364/FD/paj/6/27/2002