FIC2002-006

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Lisa J. Tilum,
		Complainants
	against		Docket #FIC 2002-006
Commissioner, State of Connecticut, Department of Transportation; and State of Connecticut, Department of Transportation,
		Respondents	September 11, 2002

The above-captioned matter was heard as a contested case on February 21, 2002, and continued to July 19, 2002 at which times the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. Five of the subjects of the requested records appeared at the July 19, 2002 hearing and are hereby given the status of party respondents.

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 December 17, 2001, the complainant made a request to the office of personnel of the respondent department for “any and all documents concerning the recent job opening at the Connecticut Department of Transportation (hereinafter “DOT”) for Transportation Transit Manager that was announced on May 25, 2001 . . . [which should include] any and all documents from both series of interviews including, but not limited to, [her] ratings and applicant flow data.”

3. By letter dated December 19, 2001, Steven Markwald, a personnel officer, on behalf of the respondent department, acknowledged receipt of the complainant’s request and informed her that it was being processed.

4. By letter dated and filed on January 4, 2002 the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with her request.

5. 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 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.

6. 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 . . . .”

7. It is found that the requested records, to the extent such records exist, are public records within the meaning of §1-210(a), G.S.

8. It is found that a transit manager position became available at the respondent department and department employees were invited to apply for the position.

9. It is found that interested employees were required to complete and submit an application form (hereinafter “PLD1”) in order to be considered for the position.

10. It is found that the PLD1s were reviewed by the respondent department’s personnel office and that applicants with at least the minimum qualifications were selected for interviews, one of whom included the complainant.

11. It is found that the respondent department conducted a series of interviews in May of 2001 and then another series in November of 2001 for the position described in paragraph 8, above.

12. It is found that at the conclusion of the November 2001 interviews the respondent department announced the successful applicant.

13. It is found that subsequent to the announcement of the successful applicant, the complainant submitted her December 17, 2001 request, which was forwarded to Mr. Markwald.

14. It is found that at the direction of his supervisor, Mr. Markwald collected records from the individuals who conducted the interviews and from the affirmative action office and redacted all of the applicants’ names, with the exception of the complainant’s.

15. It is found that by letter dated January 11, 2002, Mr. Markwald informed the complainant that the requested records had been compiled and were available for her inspection; and that on or about January 17, 2002, the complainant inspected the records and obtained copies of specific records at her request.

16. It is found that the redacted records provided to the complainant included: the interview questions used during both series of interviews; the interviewers’ notes and comments regarding the applicants; the job’s specifications; the letters of notice for the second interviews; and the interview report.

17. At the February 21, 2002 hearing on this matter, the complainant argued that the respondents failed to comply with her request in a timely manner and were withholding records. The complainant claimed that the respondents failed to provide the employment applications, a letter of justification, and correspondence with the affirmative action office, specifically any correspondence that indicated why a second series of interviews was conducted. The complainant also argued that the respondent redacted the names of the applicants without first asking the applicants if they objected to the disclosure of their names and therefore the redactions were not appropriate.

18. At the February 21, 2002 hearing on this matter, the respondent department claimed that extenuating circumstances prevented them from complying with the complainant’s request more quickly, which included: the intervening holidays; Mr. Markwald’s scheduled vacation; the records were in many locations throughout the respondent department; and Mr. Markwald had to rely on the individuals who maintained the records to forward them to him. The respondents argued that under the circumstances, the respondents’ compliance with the complainant’s request was prompt. The respondent department further argued that the complainant should not have filed her complaint until after she had received the records and was not satisfied with what she was provided. The respondent department also argued that this Commission should not consider any evidence regarding what may have transpired after the date the complaint was filed because such evidence would be prejudicial to the respondents’ defense.

19. With respect to the complainant’s claim that the respondents failed to comply promptly with her request, it is found that no single file exists within the respondent department that contains all of the records responsive to her request; rather the records are maintained throughout the respondent department by several different individuals and in the affirmative action office.

20. It is also found that Mr. Markwald had difficulty obtaining records from one interviewer who had trouble locating his records.

21. It is also found that Mr. Markwald had a scheduled vacation that fell during the period in which he was attempting to compile the requested records.

22. It is concluded, based upon the findings in paragraphs 19 through 21, above, that under the circumstances, the respondents’ compliance with the complainant’s request was prompt within the meaning of §§1-210(a) and 1-212(a), G.S.

23. With respect to the complainant’s claim that the respondents failed to provide her with all records responsive to her request, it is found that the respondents reasonably interpreted the complainant's request as encompassing only records pertaining to the interview process itself and that they therefore did not locate and provide the complainant with the PLD1s. It is further found that the PLD1s are not within the scope of the complainant's request and will therefore not be addressed herein.

24. It is found that the interview report described in paragraph 16, above, indicates why each applicant was or was not selected for the position, which constitutes, or is the equivalent of, the “letter of justification” sought by the complainant.

25. It is also found that no correspondence exists between the respondent department and the affirmative action office indicating why a second series of interviews was needed.

26. It is further found that the complainant was provided with access to inspect, and to obtain copies of, all records responsive to her request, with the exception of the redactions of the applicant names, and that no other records exist.

27. With respect to the respondents’ claim that the complainant should have waited until she had received the records and was not satisfied with what she was provided before she filed her complaint, it is found that the complainant cannot be expected to wait indefinitely for compliance with her request and her complaint was not prematurely filed, since she waited two full weeks after the respondent’s December 19, 2001 letter to file it.

28. With respect to the redactions on the records that were provided to the complainant, the respondents claimed at the February 21, 2002 hearing on this matter, that disclosure would constitute an invasion of the applicants’ personal privacy because some of the records contain comments about an applicant’s job performance, which in some cases, were negative. The respondents claimed that there was no legitimate public concern in the applicants’ names and that disclosure would be highly offensive.

29. Section 1-210(b)(2), G.S., provides in relevant part that nothing in the FOI Act shall be construed to require the disclosure of “. . . [p]ersonnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .”

30. 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.

31. With respect to the §1-210(b)(2), G.S., exemption, it is found that the subject records are not “personnel,” “medical” or “similar” files or records, within the meaning of that exemption. Rather, they are records of the administration of an examination for employment.

32. Therefore it is concluded that the requested records are not exempt from mandatory disclosure pursuant to §1-210(b)(2), G.S.

33. Section 1-210(b)(6), G.S., however, exempts from mandatory disclosure, among other things, “other examination data, used to administer a[n] . . . examination for employment. . . .”

34. Under the particular facts and circumstances of this case, it is found that the requested records, including the redacted portions that were at issue at the time of the hearings on this matter, constitute examination data used to administer an employment examination within the meaning of §1-210(b)(6), G.S., and therefore are exempt from mandatory disclosure pursuant to the terms of such provision.

35. Consequently, it is concluded that the respondents did not violate the FOI Act by failing to disclose the requested records, or portions thereof, 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 complaint is hereby dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of September 11, 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:

Lisa J. Tilum

1904 Asylum Avenue

West Hartford, CT 06117

Commissioner, State of Connecticut,

Department of Transportation; and

State of Connecticut, Department of

Transportation

c/o Charles H. Walsh, Esq.

Assistant Attorney General

55 Elm Street, PO Box 120

Hartford, CT 06141-0120

Rebecca Sanders, Kenneth Gambardella,

Duane Campbell, Sebastian Puglisi and

Dennis Jolly