FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by			FINAL DECISION
Carrie J. Campion,
		Complainants
	against		Docket #FIC 2002-173
Director, Department of Human Resources, Town of Fairfield,
		Respondent	August 28, 2002

 

            The above-captioned matter was heard as a contested case on June 18 and 28, 2002, at which times the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  At the June 18, 2002 hearing on this matter, George Benedetti, whose personnel file is the subject of this appeal, 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 respondent director is a public agency within the meaning of §1-200(1), G.S.

2.  By letter dated April 3, 2002, the complainant renewed a January 10, 2002 request to the respondent for “any and all materials available in George Benedetti’s [a former Fairfield employee] personnel file.”   The complainant specified that her request included but was not limited to Mr. Benedetti’s “salary, hours worked, performance evaluations, disciplinary documents, training records, transcripts from educational institutions, complaints about Mr. Benedetti, all as may exist in his personnel file.”

 

3.  By letter dated April 8, 2002, the respondent notified Mr. Benedetti that a request had been made for a copy of his personnel file and inquired whether he objected to its disclosure.  Mr. Benedetti objected to the disclosure of his personnel file on April 10, 2002.

 

4.  By letter dated April 12, 2002, the respondent advised the complainant of Mr. Benedetti’s objection described in paragraph 3, above.

 

5.  By letter dated April 15, 2002 and filed April 17, 2002, the complainant appealed the respondent’s refusal to provide access to the requested personnel file to the Commission.

6.  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.

 

7.   In turn, §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….”

 

            8.  It is found that Mr. Benedetti is a former employee of the town of Fairfield, the respondent maintains the requested personnel file of Mr. Benedetti and that such file is a public record within the meaning of §1-210(a), G.S.

           

9.  The respondent director makes no claim that the requested personnel file is exempt from disclosure.  He merely asserts that he had been advised by counsel, after receiving the complainant’s request, to notify Mr. Benedetti and to provide Mr. Benedetti with an opportunity to object to its disclosure.  The respondent claims that he is a “disinterested” party and that he has not disclosed the requested file because of Mr. Benedetti’s objection.  For his part, Mr. Benedetti claims that certain records contained in his personnel file are exempt from disclosure pursuant to §1-210(b)(2), G.S.

 

10.  Section 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.”

 

                        11.  Section 1-214(b), G.S., 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, provided such notice shall not be required to be in writing where impractical due to the

large number of employees 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.

 

Emphasis added.

 

12.  Section 1-214(c), G.S., 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.  Each objection filed under this subsection shall be on a form prescribed by the public agency, which shall consist of a statement to be signed by the employee or the employee's collective bargaining representative, under the penalties of false statement, that to the best of his knowledge, information and belief there is good ground to support it and that the objection is not interposed for delay.  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 pursuant to section 1-206.  Failure to comply with a request to inspect or copy records under this section shall constitute a denial for the purposes of section 1-206.  Notwithstanding any provision of this subsection or subsection (b) of section 1-206 to the contrary, if an employee's collective bargaining representative files a written objection under this subsection, the employee may subsequently approve the disclosure of the records requested by submitting a written notice to the public agency.

           

            13.  It is found that the respondent director notified Mr. Benedetti of the complainant’s request pursuant to §1-214(b), G.S., and that Mr. Benedetti submitted his objection to disclosure pursuant to §1-214(c), G.S.  However, it is also found that the respondent made no determination, prior to notifying Mr. Benedetti, that disclosure of the personnel file as a whole, or any of its contents, would legally constitute an invasion of privacy.

 

14.  Although he acted in good faith reliance on advice of counsel in this case, it is concluded that the respondent director violated the provisions of §1-214(b), G.S., given the express requirements contained therein to make a determination, based upon reasonable belief, that disclosure of the personnel file would legally constitute an invasion of personal privacy, prior to notification; and to disclose those portions of the requested records, the disclosure of which would not legally constitute an invasion of personal privacy.

           

15.  At the conclusion of the hearing in this matter, the respondent director submitted the requested personnel file to the Commission for an in camera inspection.  The records submitted consist of 132 pages, which have been marked by the Commission as in camera record #s 2001-173-1 through 2001-173-132, inclusive.

 

16.  At the conclusion of the complainant’s case in this matter, counsel for Mr. Benedetti moved to dismiss the complaint on the grounds that the complainant had not “met her burden” of establishing her case.  Counsel stated that, at minimum, the complainant needed to personally appear to present her case to the Commission.

 

17.  Section 1-206(b)(1), G.S., sets forth the requirements for taking an appeal to the Commission.  That section provides in relevant part:

 

Any person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission.  A notice of appeal shall be filed within thirty days after such denial….

 

18.  It is found that the complainant filed a notice of appeal with the Commission within thirty days of the respondent’s denial of access to the requested personnel file, in accordance with the provisions of §1-206(b)(1), G.S., and that although she did not personally appear at the hearing on this matter, she was represented by counsel at such hearing.  It is also found that there is nothing in the Freedom of Information (hereinafter “FOI”) Act or the Regulations of Connecticut State Agencies, which requires a complainant to personally appear at a hearing.

 

19.  Based upon the findings in paragraph 18, above, the motion to dismiss is hereby denied.

 

20.  With respect to Mr. Benedetti’s claim that certain records contained in his personnel file are exempt from disclosure pursuant to §1-210(b)(2), G.S, the Supreme Court set forth the test for the exemption contained in §1-210(b)(2), G.S., in Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993).   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.

 

21.  It is found that the requested file is a “personnel file” within the meaning of §1-210(b)(2), G.S.

 

22.  At the hearing on this matter, Mr. Benedetti indicated that he had no objection to disclosure of the following records contained in his personnel file:  salary information, other than financial information concerning withholding and deductions; performance appraisals; and any correspondence or other information concerning previous FOI requests.  Mr. Benedetti further stated that he objected to disclosure of any personal medical information contained in his personnel file because he did not feel the public needs to know such information. 

 

23.  The complainant indicated at the hearing on this matter, that she was not interested in obtaining information concerning pension allocations, deferred compensation information, insurance plans chosen or number of dependents.  However, the complainant argued, with respect to information concerning Mr. Benedetti’s medical information, that if such information were used as an excuse for job performance, then there would be a legitimate public interest in such information, and it ought to be disclosed. 

 

24.  After a careful review of the records submitted for in camera inspection, it is found that: in camera record #s 2002-173-3 through 22 consist of correspondence concerning a previous FOI Act request; and that 2002-173-80 through 85, 2002-173-105 through 107, 2002-173-123, and 2002-173-128 through 129 consist of performance appraisals.

 

25.  It is also found that the records referenced in paragraph 24, above, are not at issue in this case, since the complainant indicated that he has no objection to their disclosure. 

 

26.  It is also found that in camera record #s 2002-173-26 through 53, and 2002-173-73 consist of insurance information, information concerning deferred compensation contributions, quarterly financial reports for deferred compensation, letters and notes concerning Mr. Benedetti’s total pension contributions while employed by the town of Fairfield and information concerning election or rejection of benefits, and an enrollment application in the town of Fairfield’s retirement system, indicating dependents and beneficiary information; in camera record #s 2002-172-92 and  2002-173-99 through 100 consist of deferred compensation enrollment forms and amount of deferred compensation; and in camera record #s 2002-173-109 through 115, and 2002-173-124 consist of insurance enrollment forms and related insurance information.

 

27.  It is also found that the records described in paragraph 26, above, are not at issue in this matter because the complainant has indicated that she is not seeking the information contained therein. 

 

28.  With respect to the remaining in camera records, it is found that: in camera record #s 2002-173-78 through 79 and 2002-173-130 contain personal medical information concerning the complainant; in camera record #s 2002-173-86 though 2002-173-89 contain financial and credit information;  in camera record #s 2002-173-108 and 2002-173-119 contain information concerning salary and tax deductions; and 2002-173-74 and 2002-173-132 consist of birth certificates. 

 

29.  It is also found that the information contained in the records described in paragraph 28, above, does not pertain to a legitimate matter of public concern and that disclosure of such information would be highly offensive to a reasonable person.  Specifically, with respect to those records containing personal medical information, it is further found that no evidence exists that the public interest argument articulated by the complainant, as described in paragraph 23, above, is applicable in this case.

 

30.  It is therefore concluded that the records described in paragraph 28, above, are permissibly exempt from disclosure pursuant to the provisions of §1-210(b)(2), G.S.

 

31.  With respect to the outstanding in camera records, other than those described in paragraphs 24, 26 and 28, above, (specifically, in camera record #s 2002-173-1 through 2, 2002-173-23 through 25, 2002-173-54 through 72, 2002-173-75 through 77, 2002-173-90 [with the exception of a bank account number], through 91, 2002-173-93 through 98, 2002-173-101 through 104, 2002-173-116 through 118, 2002-173-120 through 122, 2002-173-125 through 127 and 2002-173-131) it is found that such records do not contain information, the disclosure of which would be highly offensive to a reasonable person.  It is further found that there is a legitimate public interest in many of such records, including but not limited to, Mr. Benedetti’s qualifications for the position he held with the town of Fairfield, salary upgrades and letters of commendation for work performed while employed by the town of Fairfield.  

 

32.  It is further found with respect to many of the records referred to in paragraph 31, above, that no reasonable basis exists whatsoever for a determination that the disclosure of such records would constitute an invasion of personal privacy.  For example, in camera record #s 2002-54 through 59 consist of blank forms pertaining to retirement options; in camera record #s 2002-172-67 through 72 consist of news articles or editorials; and in camera record #s 2002-173-76 through 77 consist of a copy of an envelope and a certified mail receipt.

 

33.  It is therefore concluded that the outstanding in camera records described in paragraph 31, above, are not permissibly exempt pursuant to §1-210(b)(2), G.S, and that such records are therefore subject to disclosure pursuant to the provisions of §§1-210(a) and 1-212(a), G.S.

 

34.  It is further concluded that the respondent director violated the provisions of §§1-210(a) and 1-212(a), G.S., by failing to disclose the in camera records described in paragraph 31, above, to the complainant. 

 

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

 

1.  The respondent director shall forthwith provide the complainant with copies of the records described in paragraph 24, of the findings, above, that were found not to be at issue in this matter because Mr. Benedetti did not object to their disclosure; and the records described in paragraph 31, of the findings, above, that were concluded not to be exempt from disclosure, free of charge. 

 

            2.  In complying with paragraph 1 of the order, the respondent director may redact the bank account number contained on in camera document #2002-173-90.  In addition, the Commission declines to order the disclosure of Mr. Benedetti’s social security number and driver’s license numbers, which appear on some of the records, described in paragraphs 24 and 31, above.  Therefore, the respondent director may also redact such numbers in complying with paragraph 1 of the order, above.

 

            3.  Henceforth, the respondent director shall strictly comply with the provisions of §§1-210(a), 1-212(a) and 1-214(b), G.S.

 

            4.  The Commission strongly advises the respondent director in future cases, to follow the requirements set forth in §1-214(b), G.S., concerning application of the test set forth in Perkins, above, as to whether disclosure of records would legally constitute an invasion of personal privacy.  Failure to do so in the future could lead to similar violations and the imposition of civil penalties.  The failure to disclose information, for which there is no reasonable basis whatsoever to withhold, is of great concern to the Commission and will not be countenanced.

 

 

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:

 

Carrie J. Campion

c/o Bernard E. Jacques, Esq.

Updike, Kelly & Spellacy, PC

One State Street, PO Box 231277

Hartford, CT 06123-1277

 

Director, Department of Human Resources

Town of Fairfield

725 Old Post Road

Fairfield, CT 06430

 

George Benedetti

c/o Elias A. Alexiades, Esq.

215 Church Street, PO Box 3859

New Haven, CT 06525

 

 

 

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2002-173/FD/paj/8/30/2002