FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on October 18, 2002, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The respondent provided Raymond Acey, the subject of the records at issue in this case, notice of the proceedings in this matter; however, Mr. Acey 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 respondent is a public agency within the meaning of §1-200(1), G.S.

 

            2.  It is found that, by letters dated January 31, 2002, and February 12, 2002, the complainants requested under the Freedom of Information [hereinafter “FOI”] Act the opportunity to inspect and receive copies of the personnel files of Raymond Acey, Joseph Daddio, William McKernan and Joseph Piazza; internal memoranda, reports, investigations and meeting minutes relating to the break in service of such individuals; letters to the Southington Police Department regarding such investigations; any response from the police department; and any correspondence with the FOI Commission relating to such investigations. 

 

3.   By letter dated March 15, 2002, and filed with the Commission on March 18, 2002, the complainants appealed to the Commission, alleging that the respondent violated the FOI Act by denying them access to certain records described in paragraph 2, above.  At the hearing in this matter, the complainants informed the Commission that the respondent provided them with access to portions of the personnel files of the individuals described in paragraph 2, above, but that the complainants were not given access to three letters in Mr. Acey’s personnel file and that they could not be certain that they had been provided with all other requested records, with the exception of medical information, social security numbers, and records of teacher evaluations, which the complainants do not seek.

 

4.  It is found that the respondent provided the complainants with the opportunity to inspect and copy all requested records, except medical records, social security numbers, records of teacher evaluations, and three letters in Mr. Acey’s personnel file. 

 

5.  It is found that, upon receipt of the January 31, 2002, request described in paragraph 2, above, the respondent notified Mr. Acey’s attorney of such request and afforded Mr. Acey the opportunity to object to disclosure.  It is further found that such attorney objected to the request, by letter dated January 31, 2002. 

 

6.  It is also found that the respondent notified the Connecticut Education Association, a union of which Mr. Acey was a member, of the requests described in paragraph 2, above.  It is further found that the respondent believed that Mr. Acey’s attorney subsequently objected to the release of only three letters, after such attorney discussed the requests with the attorney for the Connecticut Education Association.  It is found that these three letters are the records at issue in this matter, and shall hereinafter be designated “the requested records.”  Copies of the requested records were submitted to the Commission for in-camera inspection and have been identified as IC-2002-118-1 through IC-2002-118-3.

 

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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212…."  

 

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) and 1-212(a), G.S.

 

            10.  The respondent contends that he is prohibited from disclosing the requested records by operation of §1-214(c), G.S.

           

11.  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….”                 

                                                                                               

12.  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…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….” 

 

13.  It is found that the respondent notified the subject of the requested records, Mr. Acey, about the request described in paragraph 2, above, and that Mr. Acey filed an objection to disclosure, within the meaning of §1-214, G.S.

 

            14.  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."

 

            15.  The Commission takes administrative notice of the record and final decision

in Docket #FIC 2001-251; Fred Radford v. Chief, Police Department, Town of Trumbull

(January 23, 2002).

 

16.  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), which test has been the standard for disclosure of records pursuant to that exemption since 1993. 

 

17.  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 disclosure of such information is highly offensive to a reasonable person.

 

            18.  It is found that the requested records are contained in the “personnel” file of Mr. Acey, within the meaning of §1-210(b)(2), G.S.

 

19.  Upon careful examination of in-camera documents IC-2002-118-1 through IC-2002-118-3, it is found that such records relate to the discipline of a public employee and are legitimate matters of public concern, within the meaning of Perkins, supra, since such records would disclose the manner in which the respondent’s predecessor investigated and addressed a complaint against a teacher. 

 

20.  It is also found that disclosure of such information would not be highly offensive to a reasonable person.  

 

21.  It is therefore concluded that the requested records are not exempt from disclosure pursuant to §1-210(b)(2), G.S., and that the respondent violated §1-210(a), G.S., by denying the complainants access to such records.  The Commission recognizes that this violation in no way reflects adversely upon the respondent, who attempted to act in accordance with §1-214, G.S.

 

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

 

            1.  Forthwith, the respondent shall provide the complainants with copies of the requested records at no cost. 

           

           

Approved by Order of the Freedom of Information Commission at its regular meeting of February 26, 2003.

 

 

 

_______________________________________

Dolores E. Tarnowski

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:

 

Kimberly W. Moy and

the Hartford Courant

40 South Street

New Britain, CT  06051

 

Superintendent of Schools,

Southington Public Schools

c/o Mark J. Sommaruga, Esq.

Sullivan, Schoen, Campane and Connon, LLC

646 Prospect Avenue

Hartford, CT  06105-4286

 

 

 

________________________________

Dolores E. Tarnowski

Clerk of the Commission

 

 

FIC/2002-118/FD/mes/3/3/2003