FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
| Complainants | |||
| against | Docket #FIC 2001-489 | ||
|
Chief, Police Department, Borough of Naugatuck and Rick Smolicz, |
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| Respondents | September 25, 2002 | ||
The above-captioned matter was heard as a contested case on December 11, 2001, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. Pursuant to §1-206(b)(1), G.S., the hearing officer granted party status to Officer Rick Smolicz, an employee of the Naugatuck Police Department and the subject of the records at issue in this case. The records at issue were reviewed in camera.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent chief is a public agency within the meaning of §1-200(1), G.S.
2. It is found that on July 22, 2000, Falan C. Fox, a sixteen year old detainee while in the custody of the respondent police department, committed suicide.
3. On or about October 10, 2000, Fox’s Estate filed notice with the Borough of Naugatuck (“Borough”) that it was about to commence an action against the Borough for damages as a result of the Borough’s alleged negligence in connection with Fox’s death, and in particular, the alleged negligence of the respondent police department’s personnel and the dispatcher on duty.
4. It is found that the Naugatuck Board of Police Commissioners (“board”) held a disciplinary hearing to determine whether Officer Smolicz should be disciplined in connection with Fox’s death (“disciplinary hearing”). It is found that the disciplinary hearing was held on a series of dates between January 29 and May 30, 2001. At the request of Officer Smolicz and his union, the hearing was held in executive session for the most part, with the exception of brief portions that were held in public session. Based on the findings and conclusions at the disciplinary hearing, Officer Smolicz was disciplined.
5. It is found that it is the transcripts of the disciplinary hearing described in paragraph 4, above, that are the records at issue in this case.
6. It is found that by letter dated September 25, 2001, the complainants requested that the respondent chief provide them with a copy of “the transcripts taken during Naugatuck Police Sgt. Rick Smolicz’s disciplinary hearings on the following days: January 29, 2001, February 26, 2001, March 15, 2001, March 19, 2001, March 26, 2001, March 28, 2001, April 11, 2001, April 25, 2001, April 26, 2001, May 10, 2001, May 16, 2001, May 22, 2001 and May 30, 2001” (hereinafter “requested records” or “transcripts”). The complainants had made an earlier request on June 21, 2001 to the respondent chief for the transcripts.
7. It is found that by letter dated September 27, 2001, the respondent chief (through counsel) informed the complainants that the request was being denied “for the same reasons previously set forth in prior correspondence requesting the same documents.” In a letter dated July 2, 2001 the respondent chief (through counsel) had earlier advised the complainants that “disclosure of said transcripts is not required as said records are exempt pursuant to Section 1-210(b)(2) and/or(4).”
8. The complainants then filed this appeal (dated October 25, 2001) on October 26, 2001 with the Commission, alleging that the respondent chief violated the Freedom of Information (“FOI”) Act by denying them a copy of the transcripts.
9. It is found that Officer Smolicz does not object to the disclosure of the transcripts, however, he objects to the disclosure of his personnel and medical file records, which were made exhibits at the disciplinary hearing (“exhibits”). In addition, Officer Smolicz and his counsel, as a condition to gain access to the transcripts for purposes of appealing the decision to discipline him, agreed by way of a confidentiality agreement, not to divulge the details of the transcripts to anyone.
10. Section 1-210(a), G.S., provides, in relevant part:
Except 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 Borough, specifically the board and Borough Attorney N. Warren Hess maintain the requested transcripts and such transcripts are public records within the meaning of §1-210(a), G.S.
12. Following the hearing in this matter, the records at issue were submitted to the Commission for an in camera inspection, (hereinafter “in camera records”).
13. The board claims that the transcripts, except for those portions that concern the disciplinary hearing proceedings that were open to the public, are exempt from disclosure pursuant to §§1-210(b)(2) and (4), G.S. Consequently, it is concluded that those portions of the transcripts that concern the disciplinary hearing proceedings that were open to the public should have been promptly disclosed to the complainants.
14. For identification purposes, the in camera records total over 1,400 pages and pertain to the following disciplinary hearing dates[1]: January 29, 2001 (52 pages, including the certification page), February 26, 2001 (45 pages, including the certification page), March 15, 2001 (226 pages, including the certification page- pages 13 through 221 held in executive session), March 19, 2001 (196 pages, including the certification page- page 4 through 192 held in executive session), March 26, 2001 (167 pages –page 4 through 166 held in executive session), March 28, 2001 (74 pages), April 11, 2001 (118 pages), April 25, 2001 (146 pages), April 26, 2001 (150 pages), May 10, 2001 (124 pages), May 16, 2001 (57 pages) and May 30, 2001 (62 pages).
15. With respect to Officer Smolicz’s objection to the disclosure of the exhibits, specifically, his personnel and medical file records, it is found that such records are beyond the scope of the complainants’ request for transcripts, and therefore the determination as to whether such records are disclosable is beyond the scope of the hearing in this matter, and therefore will not be addressed in the context of this complaint. In addition, at the hearing in this matter, the complainants made clear that what they are seeking is the verbatim disciplinary hearing transcripts. Consequently, the only records being addressed in this complaint are such transcripts.
16. With respect to the 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.”
17. 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).
18. 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).
19. 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 that such information is highly offensive to a reasonable person.
20. It is found that the transcripts at issue constitute “personnel” or “similar” files with respect to Officer Smolicz and further, that because Officer Smolicz does not object to the disclosure of such transcripts, such records are not exempt from disclosure pursuant to §1-210(b)(2), G.S. Further, §1-214(c), G.S., in addressing the disclosure of an employee’s personnel, medical and similar file records, provides, in relevant part:
… 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. [Emphasis added.]
21. It is found that Officer Smolicz approves of the disclosure of the transcripts within the meaning of §1-214(c), G.S., and although the respondent chief indicated at the hearing in this matter that it was not until such hearing that the Borough knew officially that Officer Smolicz does not object to the disclosure of the transcripts, it is now clear that he does not object.
22. With respect to the privacy claim that the board asserts on behalf of dispatcher Shelly Nardozzi (one of the employees of the respondent department who testified at the disciplinary hearing) §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… 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.]
23. Section 1-214(c), G.S., further 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 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….
24. It is found that the board failed to prove that the transcripts constitute the “personnel, medical or similar file” of dispatcher Nardozzi. However, even assuming that the portion of the transcripts that contains dispatcher Nardozzi’s testimony constitutes her “personnel, medical or similar file” records, the Commission concludes that the board does not have standing to assert the privacy rights of an employee, within the meaning of §1-214(b), G.S., and further any existing privacy rights belong to the employee and not to the respondent. See e.g. Thedress Campbell v. City Treasurer, City of Hartford, contested case docket # FIC 2000-022, August 9, 2000.
25. Consequently, if the board reasonably believed that dispatcher Nardozzi’s privacy interest may be implicated by disclosure of the requested transcripts the board should have immediately provided notice to her pursuant to §1-214(b), G.S. This the board failed to do.
26. However, because the issue of the possibility of harm to dispatcher Nardozzi has been raised, the Commission will consider the claim of an invasion of privacy pursuant to §1-210(b)(2), G.S.
27. Upon review of the transcripts it is found that such records contain the testimonies of several employees of the respondent department including dispatcher Nardozzi.
28. It is found that the information contained in the transcripts is not highly offensive to the reasonable person.
29. It is also found that the information contained in the transcripts is of legitimate public concern.
30. Consequently, it is concluded that disclosure of the transcripts would not constitute an invasion of privacy with respect to dispatcher Nardozzi, and therefore, such transcripts are not exempt from disclosure pursuant to §1-210(b)(2), G.S.
31. With respect to the §1-210(b)(4), G.S., claim, such provision permits the nondisclosure of:
Records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled.
32. It is found that on or about May 24, 2001 the Borough entered into a Mediation Agreement with the Estate of Falan C. Fox agreeing to resolve the Estate’s claim by non-binding mediation (“mediation”). Such mediation was pending as of the date of the hearing in this matter.
33. With respect to the transcripts at issue, it is found that the board has not identified with precision any specific portions of the over 1400 pages of transcripts that it believes are exempt from disclosure as “strategy and negotiations”, pursuant to §1-210(b)(4), G.S. The board simply produced the over 1400 pages of records at issue and has made a blanket claim of exemption with respect thereto. It is found that the board has offered no evidence of how disclosure of the information contained in the transcripts or portions thereof, would disclose “strategy and negotiations”. The board simply claimed as of the date of the hearing in this matter that the Borough had attended one mediation session and that such mediation is pending.
34. While it is conceivable that portions of the transcripts could possibly divulge the Borough’s “strategy” or details that could prove useful during “negotiations”, the board failed to prove what specific portions of the over 1400 pages of records, would reveal “strategy or negotiations” with respect to the pending mediation, within the meaning of §1-210(b)(4), G.S.
35. It is therefore concluded that the board failed to prove that disclosure of the transcripts, or portions thereof, would disclose “strategy or negotiations” with respect to pending claims or pending litigation, within the meaning of §1-210(b)(4), G.S.
36. Consequently, it is concluded that the transcripts should have been 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 board shall provide the complainants with a copy of
the transcripts as more fully described in paragraph 14 of the findings, above.
Approved by Order of the Freedom of Information Commission at its regular meeting of September 25, 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:
Chief, Police Department,
Borough of Naugatuck
c/o N. Warren Hess III, Esq.
42 Terrace Avenue, PO Box 47
Naugatuck, CT 06770
Rick Smolicz
c/o E. Stephen Briggs, Esq.
Two Hickory Hill Way
West Granby, CT 06090
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-489/FD/paj/9/26/2002
[1] Counsel for the respondent informed the Commission by letter dated December 26, 2001 that the disciplinary hearing scheduled for May 22, 2001 was cancelled and consequently there is no transcript for that date.