FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
| Complainants | |||
| against | Docket #FIC 2002-051 | ||
|
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 July 18, 2002, at which time the complainants and the respondents appeared and presented testimony, exhibits and argument on the complaint. The subjects of the records at issue did not appear at the hearing.
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 by e-mail sent January 22, 2002, the complainants requested that the respondents provide them with a copy of “the DOT’s [Department of Transportation] letters to the state auditors, comptroller and governor about an alleged theft and/or misuse of materials and state time by employees in 2000…and follow-up information about the fact-finding results, discipline, etc.” involving employees of the respondent department and which was reported in at least two of the respondent department’s letters (December 1, 2000 and April 23, 2001) and referenced on page 54 of the audit that came out a little while ago” (hereinafter “requested records”).
3. It is found that by telephone on January 23, 2002, the respondent’s Director of Communications denied the request indicating that the parties are still in the grievance process and litigation.
4. Thereafter, by letter of complaint dated January 30, 2002 and filed with the Commission on February 4, 2002, the complainants appealed, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying them a copy of the requested records.
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…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….”
6. Section 1-214, G.S., further provides:
(b) 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.]
(c) 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.
7. With respect to the complainants’ request for “letters to the state auditors”, it is found that by facsimile dated February 22, 2002, the respondents provided the complainant with two memoranda, which had been sent to the Auditors of Public Accounts by the respondent commissioner, notifying the auditors of the improper removal of materials from the respondent department’s property and violations of the respondent department’s policies and procedures resulting in the dismissal of two employees and the demotion, relocation, and/or suspension of three other employees, and further that the respondent department is seeking restitution from two of the employees concerned.
8. It is found that the memoranda described in paragraph 7, above, are responsive to the complainants’ requests for “letters to the state auditors.”
9. It is concluded that the memoranda described in paragraph 7, above, constitute public records within the meaning of §1-210(a), G.S., and further that such memoranda, provided to the complainants one month after their request, were not provided “promptly” within the meaning of §1-210(a), G.S., and therefore the respondents violated such provision.
10. With respect to the remaining portion of the complainants’ request for “follow-up information about the fact-finding results, discipline, etc.” the respondents contend that the complainants’ request was not specific enough for them to ascertain the precise records being requested. The complainants on the other hand contend that based on the limited information they had about the specifics of the alleged employee misconduct they were unable to better identify specific records maintained by the respondents.
11. It is found that by letters dated February 13, 2002 this Commission notified the respondents that a complaint alleging a violation against them had been received and further that: “ [t]he respondent[s] …[are] hereby ordered, if the personnel or medical files or similar files of any of its employees are the subject of the …complaint to notify such employee(s) and the employeee’s(ees’) collective bargaining representative, if any, of the complaint and of the Freedom of Information Commission’s proceedings pertaining to such appeal, pursuant to §1-214(b), G.S.” [Emphasis added.]
12. It is found that included on the February 22, 2002 facsimile accompanying the memoranda described in paragraph 7, above, was a handwritten note to complainant Reitz from the respondent’s Director of Communications indicating: “Here are the letters we discussed. Please let me know if you need anything more.”
13. It is also found that the respondent’s Director of Communications telephoned complainant Reitz on March 18, 2002 to inquire if she needed any additional information. On March 19, 2002 complainant Reitz, in a telephone conversation with the respondent’s Director of Communications, specifically requested the names of the employees involved in the incident/s referred to in the memoranda (described in paragraph 7, above), an explanation of the violations of DOT policy and the amount of restitution to be paid by the employees.
14. It is found that the respondents then notified the five employees concerned and their collective bargaining representatives of the request.
15. It is found that by letter dated April 12, 2002, the respondents informed the complainants that the subjects of the requested records objected to their disclosure and consequently pursuant to §1-214, G.S., the respondents could not disclose the records.
16. It is found that the respondents further notified the subjects of the records at issue of the Commission’s hearing in this matter. However, they did not appear at the hearing.
17. It is found that the records at issue consist of: a) an investigative report, which includes a summary of the violations found, and b) letters concerning restitution. Such records identify the employees concerned.
18. It is found that the respondents maintain the records described in paragraph 17, above, and such records are public records within the meaning of §1-210(a), G.S.
19. It is also found that the records described in paragraph 17, above, are responsive to the complainants’ request for “follow-up information about the fact-finding results, discipline, etc.” and that the respondents’ contention that they were essentially clueless as to what specific records were being requested, and did not know that the records described in paragraph 17, above, were responsive to such request until the respondent’s Director of Communication’s March 19, 2002 conversation with complainant Reitz, appears disingenuous in light of the fact that the respondents do not have any other records concerning the improper removal of materials from the respondent department’s property by employees as reported on page 54 of the Auditor’s Report, the fact-finding process that followed and discipline of the employees concerned.
20. Consequently, it is concluded that upon receipt of the complainants’ January 22, 2002 request, and at the very latest upon receipt of the February 13, 2002 Order from the Commission, described in paragraph 11, above, the respondents should have immediately notified the subjects of the records described in paragraph 17, above, pursuant to §1-214(c), G.S., if they made a determination, based upon reasonable belief, that the disclosure of the records described in paragraph 17, above, would legally constitute an invasion of personal privacy.
21. The respondents make no claim that the records described in paragraph 17, above, are exempt from disclosure. The respondents simply contend that after complainant Reitz’s March 19, 2002 telephone conversation with the respondent’s Director of Communications they notified the subjects of the records to provide them with an opportunity to object to their disclosure. The respondents claim that they will willingly comply with any order of this Commission and that they did not disclose the records described in paragraph 17, above, because of the objections received.
22. It is found that in light of the lack of appearance of the subjects of the records at issue at the hearing in this matter, it appears that the objections they filed were merely for delay and there are apparently no good grounds to support such objections.
23. It is found that the subjects of the records at issue failed to provide any evidence to support a claim of exemption pursuant to §1-210(b)(2), G.S.
24. It is therefore found that because of the failure of proof in this case, the Commission cannot discern whether any legally cognizable interest would be compromised by disclosure of the records at issue.
25. Consequently, it is concluded that the records described in paragraph 17, above, are not exempt from disclosure pursuant to §1-210(b)(2), G.S., and should be provided to the complainants.
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 a copy of the records more fully described in paragraph 17, of the findings, above.
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:
Stephanie Reitz and The
Hartford Courant
56 East Main Street
Avon, CT 06001
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
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2002-051/FD/paj/9/12/2002