FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Michael Krupnik and Patricia Krupnik,
		Complainants
	against		Docket #FIC 2001-175
Superintendent of Schools, Norwalk Public Schools; and Norwalk Federation of Teachers, Local 1723, CFEPE, AFT, AFL-CIO,
		Respondent	March 13, 2002

Prior to the hearing in this matter, the Norwalk Federation of Teachers, Local 1723, CFEPE, AFT, AFL-CIO, requested, and was granted, status as a respondent party. The above-captioned matter was heard as a contested case on June 14, 2001, at which time the complainants and the respondents 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 superintendent is a public agency within the meaning of §1-200(1), G.S.

 

            2.  It is found that, by letter dated March 1, 2001, the complainants requested that the respondent superintendent provide them with the opportunity to inspect the personnel file of James McCaughey, a teacher employed by the Norwalk Public Schools [hereinafter “the personnel file”]. 

 

3.  It is found that, by letter dated March 14, 2001, a member of the staff of the respondent superintendent informed the complainants that he was unable to comply with the request described in paragraph 2, above, since Mr. McCaughey had objected to the disclosure of the personnel file.

 

4.  By letter dated March 25, 2001, and filed March 27, 2001, the complainants appealed to the Commission, alleging that the respondent superintendent violated the Freedom of Information Act by denying them the opportunity to inspect the personnel file. 

 

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…."  

 

6.  It is found that the personnel file is a public record within the meaning of §1-210(a), G.S.

 

            7.  The respondent superintendent contends that he is prohibited from disclosing the requested records by virtue of §§1-214(c) and 1-210(b)(2), G.S.

           

8.  Section 1-214(b), G.S., in relevant part states:

 

“[w]henever 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….”                        

           

9.  Section 1-214(c), G.S., in relevant part states:

 

“[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.  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.

           

10.  It is found that, by letter dated April 3, 2001, Mr. McCaughey objected in writing to release of any disciplinary records in his personnel file, and documented his verbal objection given to the respondent superintendent in early March 2001.

 

11.  The respondent superintendent submitted the personnel file to the Commission for in-camera inspection.  It is found that Mr. McCaughey objects to the disclosure of one undated letter to him from his supervisor, relative to an incident concerning the child of the complainants [hereinafter “the letter”], and that, notwithstanding the objections described in paragraph 10, above, Mr. McCaughey does not object to the complainants’ inspection of the remainder of his personnel file.  Accordingly, only the exempt/non-exempt status of the letter shall be addressed herein.   

 

12.  Section 1-210(b)(2), G.S., in relevant part provides for the nondisclosure of "personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy."

 

            13.  The Supreme Court set forth the test for the §1-210(b)(2), G.S., exemption in Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993). 

 

            14.  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).

 

            15.  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 second, that such disclosure of such information is highly offensive to a reasonable person.

 

            16.  It is found that the letter is contained in the “personnel” file of Mr. McCaughey within the meaning of §1-210(b)(2), G.S.

 

17.  It is found that the letter is a legitimate matter of public concern, within the meaning of Perkins, supra, since it concerns the manner in which the respondent superintendent investigated and addressed a parental complaint.  It is also found that disclosure of the letter would not be highly offensive to a reasonable person given the limited evidence presented. 

 

18.  It is concluded, therefore, that the letter is not exempt from mandatory disclosure by virtue of §1-210(b)(2), G.S.

 

19.  The respondent federation, which is Mr. McCaughey’s collective bargaining representative, contends that the letter is exempt from mandatory disclosure by virtue of §10-151(c), G.S., which in relevant part provides that:

 

 

            20.  However, it is found that the letter is not a record of teacher performance and evaluation within the meaning of §10-151(c), G.S.  Accordingly, it is concluded that the letter is not exempt from mandatory disclosure by virtue of such statute.

 

21.  It is concluded that the respondent superintendent violated §1-210(a), G.S., when he failed to allow the complainants the opportunity to inspect the personnel file, including the letter.

 

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

 

            1.  Forthwith, the respondent superintendent shall provide the complainants with an opportunity to inspect the entire personnel file.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 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:

 

Michael Krupnik and

Patricia Krupnik

52 Old Kingdom Road

Wilton, CT 06897

 

Superintendent of Schools,

Norwalk Public Schools

c/o Thomas N. Sullivan, Esq.

Sullivan, Schoen, Campane & Connon, LLC

646 Prospect Avenue

Hartford, CT 06106-4286

 

Norwalk Federation of Teachers,

Local 1723, CFEPE, AFT, AFL-CIO

c/o James C. Ferguson, Esq. and

Brian Doyle, Esq.

35 Marshall Road

Rocky Hill, CT 06067-1400

 

 

 

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2001-175/FD/paj/3/15/2002