FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by |
FINAL DECISION |
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Complainants |
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against |
Docket #FIC 2001-381 | |
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Director of Finance, City of West Haven |
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Respondent |
February 13, 2002 | |
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The above-captioned matter was heard as a contested
case on September 24, 2001, at which time the complainant and the respondent
appeared, stipulated to certain facts and presented testimony, exhibits and
argument on the complaint.
After consideration of the entire record, the
following facts are found and conclusions of law are reached:
1.
The respondent is a
public agency within the meaning of §1-200(1),
G.S.
2.
By letter dated July
21, 2001 the complainant made a written request to the respondent for copies
of certain records, including “all credit card statements for cards issued
to H. Richard Borer” (hereinafter “credit card statements”).
3.
By letter dated
August 7, 2001 the complainant made a written request to the respondent for
access to inspect certain records, including “Mayor Borer’s cell phone
records from 11/99 to present” (hereinafter “cell phone records”).
4.
It is found that the
respondent provided the complainant with copies of the credit card statements,
with the exception of those for June and July of 2001.
5.
It is found that the
respondent provided the complainant with redacted copies of the cell phone
records.
6.
By letter dated and
filed on August 13, 2001, the complainant appealed to this Commission alleging
that the respondent violated the Freedom of Information (“FOI”) Act by
failing to fully comply with his requests.
7.
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.
Any agency rule or regulation, or part thereof, that conflicts with the
provisions of this subsection or diminishes or curtails in any way the rights
granted by this subsection shall be void.
8.
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
. . . .”
9.
It is found that the
requested records are public records within the meaning of §1-210(a), G.S.
10.
With respect to the
requested credit card statements, it is found that instead of the statements
for June and July 2001, the respondent provided the complainant with a note
that stated “No activity 6/00 and 7/00 - Statements not retained.”
11.
At the hearing on
this matter, the complainant claimed that there must have been credit card
activity during at least one of the months at issue because the beginning
balance for the month of August 2000 was almost two hundred dollars more than
the ending balance for May 2000. The
complainant stated that he therefore wanted copies of the June and July 2000
statements.
12.
At the hearing on
this matter, the respondent admitted that there had been credit card activity
during the months at issue and that the portion of the note indicating that
there was “no activity” during such months was incorrect.
However, the respondent stated that he does not maintain statements for
the months at issue and that the portion of the note indicating that
statements were not retained for the months at issue was correct.
13.
It is found that the
respondent does not maintain credit card statements for H. Richard Borer for
the months of June and July 2000.
14.
It is also found,
however, that the respondent offered to re-create the June and July 2000
statements based upon the annual statement he received from the credit card
company for that year but the complainant refused to accept such re-created
statements.
15.
It is also found that
the respondent contacted the credit card company and requested copies of the
statements for June and July 2000 and was informed that it would take three to
four weeks before copies of the statements could be sent to him.
16.
It is found that the
respondent informed the complainant that he had requested another copy of the
missing statements from the credit card company but he had not received them
as of the date of the hearing on this matter.
17.
It is concluded, that
the respondent did not violate the disclosure provisions of §§1-210(a) or
1-212(a), G.S., by failing to provide the complainant with copies of the
credit card statements for June and July 2000.
18.
With respect to the
requested cell phone records, the respondent claimed at the hearing on this
matter that the redacted information included unlisted telephone numbers of
personal calls made by the mayor and that the mayor had reimbursed the city
for such personal calls. The
respondent also claimed that because the calls were personal, did not involve
city business, and were not paid for by the city, the redacted information
should not be disclosed.
19.
It is found that the
complainant was anonymously provided with an unredacted copy of the cell phone
records and was able to determine that many of the redacted telephone numbers
were not unlisted numbers, as the respondent claimed.
20.
It is also found that
the redactions included the time of each call, the cities called, as well as
the telephone numbers.
21.
It is found that the
respondent failed to claim a specific exemption under the FOI Act for the
information redacted and failed to prove that the redacted information is
exempt from disclosure.
22.
Notwithstanding the
finding in paragraph 21, above, §1-210(a)(2), G.S., provides in relevant part
that nothing in the FOI Act shall require disclosure of “personnel or
medical files and similar files the disclosure of which would constitute an
invasion of personal privacy.”
23.
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.
24.
In Connecticut
Alcohol and Drug Abuse Commission, et al, v. Freedom of Information Commission,
et al., 233 Conn. 28 (1995), the Supreme Court further expounded on the test
for the exemption contained in §1-210(b)(2), G.S. In
determining whether the files in question are “similar” to “personnel”
files, the claimant must establish that the “document or file contains
material that under ordinary circumstances would be pertinent to traditional
personnel decisions, such as whether an individual should be promoted,
demoted, given a raise, transferred, reassigned, dismissed, or subject to
other such traditional personnel actions.” supra, 233 Conn. at 41.
25.
It is found that the
cell phone records, under ordinary circumstances, would not be pertinent to
traditional personnel decisions regarding Mayor Borer and would not be used in
deciding whether to promote, demote, give a raise, transfer, reassign, or
dismiss him or subject him to other such traditional personnel actions.
26.
It is found,
therefore, that the cell phone records are not “personnel” files nor are
they “similar” to such files.
27.
Consequently, it is
concluded that §1-210(b)(2), G.S., does not apply to the cell phone records
and it is not necessary to determine whether or not such records would
constitute an invasion of personal privacy under the second prong of the test.
28.
It is concluded that
the respondent violated §§1-210(a) and 1-212(a), G.S., by failing to provide
the complainant with an unredacted copy of the cell phone records.
On
the basis of the record concerning the above-captioned complaint, no order is
recommended by the Commission.
Approved by Order of the Freedom of Information Commission at its regular meeting of February 13, 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:
Director of Finance
City of West Haven
c/o Henry C. Szadkowski, Esq.
West Haven Corporation Counsel
355 Main Street
West Haven, CT 06516
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-381/FD/paj/2/15/2002