FIC2001-421

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Jean M. Morningstar and University Health Professionals Local 3837, AFT-CFEPE, AFL-CIO,
		Complainants
	against		Docket #FIC 2001-421
Executive Vice President for Health Affairs, State of Connecticut, University of Connecticut Health Center; and State of Connecticut, University of Connecticut Health Center; and Justin Radolf, M.D., Director, Center for Microbial Pathogenesis, School of Medicine, University of Connecticut Health Center,
		Respondent	August 28, 2002

The above-captioned matter was heard as a contested case on February 13, 2002 at which time the complainants and the respondents appeared and presented testimony, exhibits and argument on the complaint. Dr. Justin Radolf (“Dr. Radolf”), an employee of the respondent health center, and the subject of the records at issue, requested and was granted party status by the Hearing Officer pursuant to §1-206(b)(1), G.S. Dr. Radolf appeared at the hearing in this matter and was represented by counsel. The case caption was modified to reflect that Dr. Radolf is a party respondent in this matter.

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. It is found that on or about August 17, 2001 the complainants verbally requested that counsel for the respondent health center provide them with the Report of the Special Review Board Investigation of Allegations of Research Misconduct by Dr. Radolf and Violation of Health Center Data Ownership Policy by Ms. Marianne Hebenstreit dated July 26, 2001 (hereinafter “the requested records”).

3. It is found that a few days later by telephone, and then formally, by letter dated August 24, 2001, the respondent health center acknowledged receipt of the complainants’ request and informed the complainants that there is a reasonable possibility that disclosure of the requested records may constitute an invasion of privacy of one or both of the named individuals, and that pursuant to §1-214, G.S., each individual concerned was being notified of the request and had seven business days from receipt of such notice to file an objection to disclosure, and that if such objection was filed the requested records would not be disclosed unless ordered by the Freedom of Information (“FOI”) Commission.

4. It is also found that by letters dated August 24, 2001, the respondent health center notified Dr. Radolf and Marianne Hebenstreit, the employees concerned, and received written objections from Dr. Radolf dated September 5 and 8, 2001. Ms. Hebenstreit informed the respondent health center that she did not object to disclosure.

5. It is also found that by letter dated August 30, 2002, the respondent health center informed the complainants that included in the requested report are “two grant proposals” and that some or all of the information contained in such proposals may be exempt from disclosure pursuant to the “trade secrets” exemption contained in §1-210(b)(5), G.S., and that “we are therefore providing the principal investigator an opportunity to object to the disclosure of all or portions of this information. We are also asking the principal investigator to identify other major contributors who may have a claim of ownership on such data. These additional contributors, if any, will also be contacted and provided an opportunity to object to the disclosure of all or portions of the proposal.”

6. Thereafter, by letter dated September 5, 2001, and filed on September 7, 2001, the complainants appealed to the Commission alleging that the respondent health center violated the FOI Act by denying them access to the requested records.

7. It is found that by letter dated September 11, 2001, the respondent health center further informed the complainants that Dr. Radolf objected to the disclosure of the requested records and therefore the respondents would not provide such records to the complainants pursuant to §1-214, G.S.

8. Section 1-214(b), G.S., in relevant part, provides:

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.

9. Section 1-214(c), G.S., in relevant part, provides:

A public agency which has provided notice under subsection (b) of this section shall disclose the records requested unless it receives a written objection from the employee concerned or the employee's collective bargaining representative, if any, within seven business days from the receipt by the employee or such collective bargaining representative of the notice or, if there is no evidence of receipt of written notice, not later than nine business days from the date the notice is actually mailed, sent, posted or otherwise given… Upon the filing of an objection as provided in this subsection, the agency shall not disclose the requested records unless ordered to do so by the Freedom of Information Commission….

10. Section 1-210(a), G.S., in relevant part, provides:

[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 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.

11. It is found that the respondents maintain the requested records and such records are public records within the meaning of §1-210(a), G.S.

12. Following the hearing in this matter, counsel for respondent Radolf submitted the records at issue to the Commission for an in camera inspection, (hereinafter “in camera records”).

13. The respondents claim that the in camera records are exempt from disclosure pursuant to §1-210(b)(2), G.S. Respondent Radolf also claims that the in camera records, or portions thereof, are exempt from disclosure pursuant to §§1-210(b)(5), 1-210(b)(12) and 10a-154a, G.S.

14. It is found that the in camera records were compiled by a Special Review Board (“SRB”), a body of three faculty members, who conducted an investigation into an allegation of: a) research misconduct by Dr. Radolf and b) violation of Health Center Data Ownership Policy by Ms. Hebenstreit.

15. It is found that the in camera records consist of the SRB’s Report (hereinafter “SRB Report”) and thirteen Exhibits (hereinafter “Exhibits I through XIII). The SRB Report, including the cover page, consists of 21 pages. Exhibits I and X are grant applications, which the respondents contend contain “trade secrets” and which the complainant indicated she is not requesting. No claim of exemption is being made by the respondents with respect to Exhibits VI, VIII, and XIII, which are records of policy and procedures relative to the investigation process.

16. Consequently, the in camera records that remain at issue and will be reviewed to determine whether they are disclosable or exempt are the following records: the SRB Report and Exhibits II, III, IV, V, VII, IX, XI and XII.

17. It is found that the SRB Report and exhibits at issue contain information such as: the SRB’s findings, conclusions and recommendations, allegation of Ms. Hebenstreit, complaints by Dr. Radolf, Dr. Radolf”s Motion to Dismiss filed with Misconduct Standing Committee, Report of Misconduct Standing Committee and Internal Auditor’s Report.

18. It is also found that there are references throughout the SRB Report and some of the exhibits at issue to scientific information and research conducted by Dr. Radolf and others.

19. With respect to the respondents’ claim of exemption pursuant to §1-210(b)(2), G.S., such provision permits the nondisclosure of “personnel or medical files and similar files” the disclosure of which would constitute an invasion of personal privacy.”

20. The Commission takes administrative notice of the final decision in contested case docket #FIC 2001-251, Fred Radford v. Chief, Police Department, Town of Trumbull (January 2002), with respect to the discussion of §1-210(b)(2), G.S., and Perkins v. Freedom of Information Commission, 228 Conn. 158, (1993).

21. The Supreme Court set forth the test for the §1-210(b)(2), G.S., claim of invasion of privacy in Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993).

22. Specifically, under the Perkins test, 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 such information is highly offensive to a reasonable person.

23. It is found that the SRB Report and exhibits at issue constitute “similar files” within the meaning of §1-210(b)(2), G.S.

24. It is found that the SRB Report and exhibits at issue pertain to legitimate matters of public concern because the information contained therein concerns and implicates the conduct of public employees, and also discloses the process by which the Misconduct Standing Committee and the SRB conducted their investigation.

25. It is also found that disclosure of in camera records would be embarrassing to respondent Radolf.

26. However, in light of the standard set forth in Perkins, and the fact that there is a legitimate public interest in the disclosure of the records at issue, it is concluded that the respondents failed to prove that disclosure of the subject records would constitute an invasion of personal privacy, within the meaning of §1-210(b)(2), G.S.

27. Consequently, it is concluded that the in camera records at issue are not exempt from disclosure pursuant to §1-210(b)(2), G.S.

28. With respect to respondent Radolf’s claim of exemption pursuant to §1-210(b)(5)(A), G.S., such provision permits the nondisclosure of:

Trade secrets, which for purposes of the Freedom of Information Act, are defined as information, including formulas, patterns, compilations, programs, devices, methods, techniques, processes, drawings, cost data, or customer lists that (i) derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) are the subject of efforts that are reasonable under the circumstances to maintain secrecy; and

29. It is found that the in camera records at issue contain unpublished scientific information that has the potential for patentability. It is also found that such information, includes “methods, techniques, processes and drawings that (i) derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) are the subject of efforts that are reasonable under the circumstances to maintain secrecy”, within the meaning of §1-210(b)(5)(A), G.S.

30. Consequently, it is concluded that the following specific portions only of the in camera records at issue constitute “trade secrets” within the meaning of §1-210(b)(5)(A), G.S., and are therefore exempt from mandatory disclosure:

SRB Report

Page ii, lines 21 and 22 and lines 37, 38 and 39;

Page 1, lines 20 and 21;

Page 4, lines 11, 12 and 13;

Page 8, lines 16 through 30;

Page 9, lines 1 through 9;

Page 10;

Page 11, lines 1 through 8;

Page 12, Figure 2, and lines 1 through 10 up to and including the word “glands”, line 11 redact the words after “Clearly” through the word “laboratory”, line 15 redact from the word “support” through the end of line 16;

Page 13, lines 1 through 3, lines 23, 25 through 28; footnote 4, lines 30 through 36;

Page 14, lines 12 through 15 up to and including the word “described”.

Exhibit II

Pages 4 & 5

Exhibit XI

Page 1, delete project Titles only

Page 2, delete project Title only

Page 3, delete project Title only

Exhibit XII

Delete project Title only

31. With respect to respondent Radolf’s claim of exemption pursuant to §10a-154a, G.S., such provision provides, in relevant part:

Any record maintained or kept on file by a board of trustees of a constituent unit of the state system of higher education which is a record of performance and evaluation of a faculty or professional staff member of such constituent unit shall not be deemed to be a public record and shall not be subject to disclosure under the provisions of [the Freedom of Information Act], unless such faculty or professional staff member consents in writing to the release of his records by the board of trustees of the constituent unit.

32. It is found that the in camera records at issue are not records of employee performance and evaluation, but are records pertaining to a specific incident of misconduct and the subsequent investigation of such incident.

33. It is therefore concluded that the in camera records at issue are not exempt from disclosure pursuant to §10a-154a, G.S.

34. With respect to respondent Radolf’s claim of exemption pursuant to §1-210(b)(12), G.S., such provision permits the nondisclosure of: “[a]ny information obtained by the use of illegal means.”

35. It is found that respondent did not obtain the in camera records at issue illegally.

36. It is therefore concluded that the in camera records at issue are not exempt from disclosure pursuant to §1-210(b)(12), G.S.

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

1. Forthwith the respondents shall provide the complainants with access to inspect and/or receive a copy of the SRB Report and Exhibits II, III, IV, V, VII, IX, XI and XII, excluding those specific portions as described in paragraph 30 of the findings, above.

Approved by Order of the Freedom of Information Commission at its regular meeting of August 28, 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:

Jean M. Morningstar and University

Health Professionals Local 3837,

AFT-CFEPE, AFL-CIO

c/o Brian Doyle, Esq.

Ferguson & Doyle

35 Marshall Road

Rocky Hill, CT 06067

Executive Vice President for Health

Affairs, State of Connecticut, University

of Connecticut Health Center; and

State of Connecticut, University of

Connecticut Health Center

c/o Jane D. Comerford, Esq.

Assistant Attorney General

University of Connecticut

Health Center, Room LM043

Farmington, CT 06030-3803

Justin Radolf, M.D., Director, Center for

Microbial Pathogenesis, School of Medicine,

University of Connecticut Health Center

c/o Karen K. Buffkin, Esq.

McEleney & McGrail

363 Main Street

Hartford, CT 06106 and

Thomas W. Bucci, Esq.

Willinger, Willinger & Bucci, PC

855 Main Street

Bridgeport, CT 06604

________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2001-421/FD/paj/8/29/2002