FREEDOM OF
INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
| MariAn Gail Brown, Michael P. Mayko and Connecticut Post, | |||
| Complainants | |||
| against | Docket #FIC 2002-034 | ||
| Michael Lupkas, Comptroller, City of Bridgeport; Christopher Duby, Chief of Staff, City of Bridgeport; Mark Anastasi, City Attorney, City of Bridgeport; and Gregory Conte, Deputy Chief of Staff, City of Bridgeport, | |||
| Respondent | June 26, 2002 | ||
The above-captioned matter was heard as a contested case on March 18, 2002, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
At the conclusion of the hearing in this matter, the parties were ordered to provide simultaneous briefs to the Commission by April 3, 2002. The respondents in this matter thereafter requested five extensions of time by which to file their brief, all of which were granted by the undersigned hearing officer. Two of the requests for extension indicated that such requests were due to a personal family medical situation that prevented the respondents from complying with the filing deadline. The fourth time a request for extension was granted, the respondents were informed that no further continuances would be permitted. However, the hearing officer, upon a written plea from the respondents for a fifth extension, and a representation that the complainants had no objection to the granting of such extension, granted one further extension of time until May 24, 2002. The respondents were then advised that the Commission expected the briefs to be filed in the Commission’s office on May 24, 2002. The respondents failed to meet that deadline and, as of the date of the proposed final decision, have not filed their brief. The complainants’ brief was filed on April 17, 2002.
In addition, at the hearing on this matter, the respondents were ordered to provide the Commission and the complainants, with certain affidavits, to be considered as after-filed exhibits. Such affidavits were to be filed within one week of the hearing. The respondents have likewise failed to produce such affidavits.
The foregoing history of delay, false representations and non-compliance by counsel for the respondents is simply inexcusable. Consequently, no further evidence will be accepted in this case and the Commission will draw negative inferences against the respondents, as described below, from their failure to provide the affidavits as ordered.
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 January 4, 2002, the complainants renewed a July 24, 2001 request to the respondent comptroller for copies of cellular phone statements for Mayor Joseph P. Ganim, Christopher Duby, Jerome Baron and Patrick Coyne from January 1, 1997 through June 30, 2001 (hereinafter “cell phone records”). The complainants stated in their letter that in response to their prior request, the respondent comptroller had made available approximately one year’s worth of records for certain employees and had redacted numerous portions of such records. The complainants requested in their January 4, 2002 letter that the respondent comptroller provide them with all of the requested records in unredacted form.
3. By letter dated January 4, 2002, the complainants renewed and added to a July 2001 request to the respondent chief of staff to inspect the resumes of several city officials, including the respondent chief of staff’s resume. The complainants stated that the respondent chief of staff had previously refused to permit inspection of his resume and that most of the other officials likewise refused to permit inspection.
4. By letter dated January 4, 2002, the complainants renewed October 1, 2001 requests to the respondents city attorney and deputy chief of staff, for copies of “any and all city work orders, proposals, bids, invoices, contracts and payments for the years 1997-2001 for tree service work bid on and/or performed by the following firms: Jim’s Tree Service, Bill Mann’s Tree Service, Shapiro Landscaping and Tree Experts and Northeast Tree Service (hereinafter “landscaping records”). The complainants stated that they had never received a response to their October requests and were therefore officially renewing such requests.
5. By letter dated and filed January 25, 2002 the complainants appealed to the Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply or respond to their January 4, 2002 requests. In addition, the complainants requested the imposition of civil penalties.
6. Section 1-200(5), G.S., defines “public records” as:
any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, whether such data or information be handwritten, typed tape-recorded, printed, photostated, photographed or recorded by any other method.
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. In turn, §1-212(a), G.S., provides in relevant part that:
Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any record.
9. It is found that to the extent records exist that are responsive to the complainants’ requests described in paragraphs 2 through 4, above, such records are public records within the meaning of §§1-200(5) and 1-210(a), G.S.
10. At the hearing on this matter, the complainants stated that they had been provided with the landscaping records requested from the respondents city attorney and deputy chief of staff, described in paragraph 4, above, sometime after they filed their complaint in this matter. The complainants stated that they wished to withdraw that portion of their complaint concerning such records.
11. Also at the hearing on this matter, the complainants stated that sometime after they filed their complaint in this matter, the respondent chief of staff provided the complainant with copies of the requested resumes for those employees whose resumes were maintained by the City of Bridgeport (hereinafter “City”). A few of the requested resumes were not provided because they are not maintained by the City. The complainants stated that as of the date of the hearing in this matter, they were only concerned about the City’s claim that it did not maintain a resume for the respondent chief of staff because an earlier communication from the City, referenced in paragraph 3, above, led them to believe that the City did maintain a resume but that the respondent chief of staff objected to its disclosure and it therefore would not be disclosed.
12. At the hearing on this matter, the respondents agreed to provide the complainant and the Commission, within one week’s time, with an affidavit of the respondent chief of staff, stating whether the City maintains a resume for him. The complainants stated that if such affidavit were provided and it indicated that the City does not maintain a resume, they would withdraw that portion of their complaint concerning the requested resumes, described in paragraph 3, above.
13. It is found that the respondents never provided the complainants or the Commission with the respondent chief of staff’s affidavit.
14. It is further found based upon the respondents’ failure to produce such affidavit, that the respondents could not support their claim that the City does not maintain a resume for the respondent chief of staff.
15. It is therefore concluded that the respondent chief of staff violated the provisions of §1-212(a), G.S., by failing to provide the complainant with a copy of the respondent chief of staff’s resume and that such violation was without reasonable grounds, within the meaning of §1-206(b)(2), G.S.
16. With respect to the requested cell phone records, it is found that sometime after the complainant’s initial request in July 2001, the respondent comptroller provided the complainants with access to approximately one year’s worth of cell phone records, with some gaps, for the phones assigned to Mayor Ganim and Mr. Barone. The cell phone records provided to the complainants at that time were heavily redacted to exclude the account number, billing number, information concerning to whom the phone was assigned, the city or town to which the outgoing calls went and the telephone numbers of the outgoing calls. The requested cell phone records do not contain information concerning incoming calls.
17. At the hearing on this matter, the respondent comptroller agreed to provide the complainants and the Commission, within one week’s time, with an affidavit containing a detailed accounting of what information is contained on the requested cell phone records. The respondents never provided the complainants or the Commission with such affidavit. Consequently, the Commission’s finding in paragraph 16, above, concerning what is included in the requested cell phone records is based only on the sample of records provided to the complainants in response to their July 2001 request.
18. As indicated in their letter of request described in paragraph 4, above, the complainants seek access to all of the requested cell phone records, for all of the requested individuals, for the entire period requested in their July, 2001 letter, and in unredacted form.
19. At the hearing on this matter, the respondents stated that they were not claiming an exemption to disclosure for the account number and information concerning to whom the phone was assigned. However, the respondents claimed, with respect to the city or town to which the outgoing calls were placed, the telephone numbers of the outgoing calls and the telephone number of the cell phone from which the calls were placed, that such information is exempt from disclosure as similar files the disclosure of which would constitute an invasion of personal privacy pursuant to §1-210(b)(2), G.S.
20. In support of their claim that the portions of the requested cell phone records are exempt from disclosure pursuant to §1-210(b)(2), G.S., the respondents claimed that individuals who receive phone calls from government officials do not have an expectation that information concerning them would be part of a public record, that some of the calls placed may be to unlisted telephone numbers and that the calls received by them may have been unsolicited. With regard to the telephone number of the cell phone from which the calls were placed, the respondents simply claimed that government officials do not always reveal their cell phone numbers. At the hearing on this matter, the respondents claimed that a court decision from New Jersey supported their claims in this regard, but once again the respondents failed to meet their obligations and provide the Commission with a proper name or citation for the decision until after the hearing officer’s report was issued in this case. Having reviewed the case of North Jersey Newspapers Company v. Passaic County Board of Chosen Freeholders, 127 N.J. 9 (1992), the Commission finds the reasoning in that case unpersuasive. Rather, it finds more persuasive the reasoning of the Nevada Supreme Court in DR Partners v. Board of County Commissioners of Clark County, Nevada, 6 P.3d 465 (Nev. 2000). See also, Final Decision in Docket #FIC 2001-381, Timothy Writhington against Director of Finance, City of West Haven.
21. The respondents further claimed that the records likewise should not be disclosed based upon a concept of “executive privilege” in that government should be able to conduct business without “ancillary” information being made available to the public.
22. With respect to the respondents’ claim that the subject records are exempt from disclosure pursuant to §1-210(b)(2), G.S., that provision permits the nondisclosure of “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.”
23. 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.
24. It is found the cell phone records are neither “personnel” nor “medical” records. Rather, they are financial and accounting records of cellular telephone use by public officials paid for by public funds.
25. In Connecticut Alcohol and Drug Abuse Commission, et al, v. Freedom of Information Commission, et al., 233 Conn. 28 (1995), the Supreme Court further expounded on the test for the exemption contained in §1-210(b)(2), G.S. In determining whether the files in question are “similar” to “personnel” files, the claimant must establish that the “document or file contains material that under ordinary circumstances would be pertinent to traditional personnel decisions, such as whether an individual should be promoted, demoted, given a raise, transferred, reassigned, dismissed, or subject to other such traditional personnel actions.” Supra at 41.
26. It is found that the requested cell phone records, under ordinary circumstances, would not be pertinent to traditional personnel decisions regarding Mayor Ganim or any of the employees whose cell phone records were requested and would not be used in deciding whether to promote, demote, give a raise, transfer, reassign, or dismiss such individuals or subject them to other such traditional personnel actions.
27. It is found, therefore, that the cell phone records are not “similar” files within the meaning of §1-210(b)(2), G.S.
28. Since the records at issue do not constitute similar files within the meaning of §1-210(b)(2), G.S., it is not necessary to consider whether disclosure of the requested records would constitute an invasion of personal privacy. However, since the only arguments offered by the respondents on this claim dealt with the second portion of the §1-210(b)(2) exemption, the invasion of personal privacy claim is nonetheless addressed below.
29. It is found that information pertaining to public employees’ use of government-owned or issued equipment on government time is presumptively a legitimate matter of public concern. See Perkins, supra at 174. See also paragraph 24, above.
30. It is also found that the respondents failed to rebut the presumption described in paragraph 29, above, by introducing evidence, for example, as to which, if any, of the calls were personal in nature, which, if any, of the calls were reimbursed to the City, and which, if any, of the calls were to unlisted telephone numbers. Rather, the respondents made a blanket claim of exemption with respect to all of the towns, cities and telephone numbers called without offering any evidence whatsoever.
31. It is also found that the portions of the requested cell phone records at issue are limited to the city or town to which the calls were placed, the phone numbers called and telephone number of the cell phone from which the calls were placed. Disclosure of such limited information would obviously not reveal the subject or content of any conversation that took place upon placement of the call.
32. It is further found that disclosure of the limited information described in paragraph 31, above, absent specific evidence in a specific case or cases, of the kind set forth in paragraph 30, above, would not be highly offensive to a reasonable person.
33. It is concluded therefore, that even if the portions of the requested cell phone records at issue constituted “similar files,” their disclosure would not constitute an invasion of personal privacy within the meaning of §1-210(b)(2), G.S.
34. With respect to the respondents’ claim that the requested records should not be disclosed due to “executive privilege”, the FOI Act does not contain any exemption for executive privilege nor is the Commission aware of any case that applies that federal constitutional privilege in Connecticut law. Furthermore, the Commission is unaware of any other federal law or state statute that provides for the nondisclosure of the portions of the requested records at issue in this case.
35. It is unclear from the record precisely what records the respondents maintain that are responsive to the complainants’ cell phone records request. At the hearing on this matter, the respondents claimed that they only redacted and gave the complainants copies of cell phone records, in response to their July 2001 request, that were readily available; and that they did not do a thorough search for additional records and make redactions because they believed it would not be a productive use of time since this Commission would ultimately decide the issues concerning access to the requested records. The respondents did not establish whether they maintained records for all of the employees requested, how far back in time the records date, or whether some of the records had been destroyed pursuant to an approved records destruction schedule. The Commission finds such lack of preparation on the part of the respondents unacceptable and completely contrary to the obligations of state law – i.e., the FOI Act.
36. It is therefore concluded that the respondent comptroller violated §1-212(a), G.S., by failing to provide the complainants with unredacted copies of the requested cell phone records.
37. It is found, that the violation set forth in paragraph 36, above, was without reasonable grounds, within the meaning of §1-206(b)(2), G.S.
38. With regard to the complainants’ request for the imposition of civil penalties, §1-206(b)(2), G.S., permits the imposition of a civil penalty upon a finding that a denial of any right created under the FOI Act was without reasonable grounds and after the official directly responsible for such denial has been given an opportunity to be heard at a hearing.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is hereby dismissed as against the respondents city attorney and deputy chief of staff.
2. Within one week of the notice of final decision in this matter, the respondent chief of staff shall forthwith provide the complainant with a copy of his resume, free of charge. In the alternative, the respondent chief of staff shall provide the complainants with an affidavit stating whether he has conducted a diligent search for the subject resume, the nature and scope of his search and the outcome thereof.
3. Within one week of the notice of final decision in this matter, the respondent comptroller shall conduct a diligent search for all of the requested cell phone records. Thereafter, the respondent comptroller shall provide the complainants with unredacted copies of the requested cell phone records, free of charge. In the event, the respondent comptroller cannot locate some of the requested records for the time period sought, he shall execute an affidavit detailing the nature of his search and the results of such search, which results shall include a listing of those records located and those records that were not and the reasons why such records are not maintained by the City.
4. Forthwith, the respondents chief of staff and comptroller, as the officials directly responsible for the violations set forth in paragraphs 15 and 36, respectively, of the findings above, shall each remit to this Commission, a civil penalty in the amount of one thousand ($1,000.00) dollars.
5. Counsel for the respondents are admonished for their unprofessional conduct throughout this case. The Commission will countenance no future repetitions of such conduct.
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:
MariAn Gail Brown, Michael
P. Mayko and Connecticut Post
410 State Street
Bridgeport, CT 06604
Michael Lupkas, Comptroller,
City of Bridgeport; Christopher Duby,
Chief of Staff, City of Bridgeport;
Mark Anastasi, City Attorney,
City of Bridgeport; and Gregory Conte,
Deputy Chief of Staff, City of Bridgeport
c/o John H. Barton, Esq.
Office of the City Attorney
999 Broad Street
Bridgeport, CT 06604-4328
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2002-034/FD/paj/7/2/2002