FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on November 21, 2007 and on January 15, 2008, at which times 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 with respect to its administrative functions within the meaning of §1-200(1), G.S.

 

2.      It is found that on or about June 10, 2007 and August 6, 2007, the complainant requested copies of the following records from the respondent:

 

a.       Investigator Ann-Laurie Parent’s preliminary report concerning the complainant’s allegations of a hostile work environment, and

 

b.      Investigator Ann-Laurie Parent’s notes on the complainant’s statement, prepared when Ms. Parent interviewed the complainant concerning the hostile work environment complaint. 

 

3.      It is found that, by e-mail dated August 6, 2007, the respondent acknowledged the complainant’s request for records, and stated that it was the respondent’s practice not to release the investigatory report when it appeared that a discrimination complainant was contemplating additional legal action, or had filed a lawsuit in another forum. 

4.      It is found that, by e-mail dated August 10, 2007, the respondent again acknowledged complainant’s request for records, stating that in addition to its practice of not releasing an investigatory report during a pending or contemplated litigation, as referenced in paragraph 3, above, the Court Operations Division was currently reviewing the report to determine if any corrective action had to be taken and, until such review was completed, the respondent was unable to release the report. 

 

5.      By letter dated August 13, 2007 and filed August 14, 2007, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying her request for the records described in paragraph 2, above. 

 

6.      Section 1-200(5), G.S., provides:

 

“Public records or files” means any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

7.      Section 1-210(a), G.S., provides in relevant part that:

 

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 . . . (3) receive a copy of such records in accordance with 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 respondent maintains the records described in paragraph 2, above, and it is therefore concluded that such records are “public records” and must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 

 

10.  It is found that, on or about September 27, 2007, the respondent provided the complainant with a copy of her notes, as described in paragraph 2b, above.

 

11.  At the hearing in this matter, the respondent claimed that the investigatory report at issue in this case was a preliminary investigatory report and, accordingly, was exempt from disclosure pursuant §1-210(b)(1), G.S., which provides that nothing in the FOI Act shall require disclosure of: “[p]reliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.”

 

12.  It is found that the respondent’s procedure for investigating a complaint of harassment includes interviewing as many individuals as possible and including all of the witness statements in a preliminary investigatory report, but not attributing such statements to any specific employee. 

 

13.  It is found that subsequent to preparing the preliminary investigatory report, the respondent requests a release from each witness in order to include each witness’s statement and identity into the final investigatory report.  It is further found that if a witness does not agree to the release of his or her identity, the corresponding witness statement does not become part of the final investigatory report.

 

14.  It is found that the respondent’s final investigatory report was completed on October 19, 2007, and a copy of this report was provided to the complainant on October 23, 2007.

 

15.  It is found that the respondent has determined that the public interest in withholding the preliminary investigatory report until each witness agrees to the disclosure of his or her identity clearly outweighs the public interest in its disclosure, within the meaning of §1-210(b)(1), G.S.

 

16.  It is concluded that the preliminary investigatory report is a preliminary draft or note within the meaning of §1-210(b)(1), G.S.

 

17.  Section 1-210(e)(1), G.S., provides in relevant part that, notwithstanding the provisions of §1-210(b)(1), G.S., disclosure shall be required of:

 

[i]nteragency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency.

 

18.  It is concluded that the preliminary investigatory report is a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency within the meaning of §1-210(e)(1), G.S.  Accordingly, it is concluded that the

preliminary investigatory report is exempt from mandatory disclosure by virtue of §§1-210(b)(1) and 1-210(e)(1), G.S., and that the respondent did not violate the FOI Act by denying the complainant access to such document, as alleged in the complaint.

 

19.  In addition to the records identified in paragraph 2, above, in her appeal to the Commission the complainant requested “anything and everything else in the file related to [her] complaint.”

20.  It is found, however, that the complainant did not request these additional records in the FOI request she sent to the respondent. 

 

21.  It is, therefore, concluded that the Commission does not have jurisdiction over this issue.   

 

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

 

1.      The complaint is hereby dismissed.

 

2.      The respondent is cautioned that an individual’s mere contemplation of litigation is not a sufficient basis upon which to deny a request for records under the FOI Act.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 12, 2008.

 

________________________________

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:

 

Linda Johnston

53 Cedar Lane

Bozrah, CT 06334

           

Program Manager, State of

Connecticut, Judicial Branch,

Human Resources Department

c/o Martin R. Libbin, Esq.

Deputy Director, Legal Services

100 Washington Street

Hartford, CT 06106

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-431FD/paj/3/25/2008