FIC1993-174

FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Final Decision

(Meriden Community Action Agency only)

Linda Preato,

Complainant

against Docket #FIC 93-174

Meriden Department of Health and Human Services, Meriden Department

of Human Rights, Meriden Police Department, Meriden Personnel

Department, Meriden Community Action Agency,

Respondent January 26, 1994

Pursuant to paragraph 2 of the Commission's order in its final decision in the above-captioned matter dated November 10, 1993, the hearing in this matter was reopened with respect to the respondent Meriden Community Action Agency (hereinafter, "MCAA") only. The hearing concerning the respondent MCAA was held on December 7, 1993, at which time the complainant and the respondent MCAA appeared, stipulated to certain facts and presented testimony 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 MCAA is a public agency within the meaning of 1-18a(a), G.S.

2. The Commission takes administrative notice of its record and final decision in the above-captioned matter as they relate to all the other named respondents.

3. By letter dated May 27, 1993, the complainant requested access to inspect all portions of the personnel file of, and all complaints, documents and correspondence pertaining to any complaint concerning, one Gregory Haskins, Executive Director of the MCAA.

4. It is found that by letter dated June 9, 1993, the MCAA denied the complainant's May 27, 1993 request, claiming that such records are exempt from disclosure under 1-19(b)(4), G.S.

Docket #FIC 93-174 (MCAA only) Page 2

5. By letter dated June 16, 1993, and filed with the Commission on June 18, 1993, the complainant appealed to the Commission from the denial of her May 27, 1993 request for access to public records.

6. It is found that on or about May 20, 1993, the complainant filed notice of her intent to sue the MCAA, among others, pursuant to 7-465 and 7-101a, G.S.

7. It is also found that on or about May 20, 1993, the complainant instituted a complaint with the State Commission on Human Rights and Opportunities (hereinafter, "CHRO") for sexual harassment against Mr. Haskins and, among others, against the MCAA with respect to its acquiescence in Mr. Haskins' conduct. As of the date of the hearing concerning the respondent MCAA in the complaint before this Commission, the CHRO complaint was still pending.

8. The MCAA, in its own capacity and on behalf of Mr. Haskins, objects to disclosure of:

a. Mr. Haskins' personnel file, which it claims is exempt from disclosure under 1-19(b)(2), G.S.;

b. Documents relating to the investigations it conducted or commissioned with respect to the sexual harassment complaint filed by the complainant against Mr. Haskins and other records containing strategy with respect to pending claims or pending litigation, which it claims are exempt from disclosure under 1-19(b)(4), G.S.; and

c. Correspondence and other documents that are privileged by the attorney-client relationship, which it claims are exempt from disclosure under 1-19(b)(10), G.S.

9. The complainant states that she does not seek access to: medical information in Mr. Haskins' files; records of investigations or other documents relating to the investigations the MCAA conducted or commissioned with respect to the sexual harassment complaint filed by the complainant against Mr. Haskins, or any other such documents prepared after the complainant filed her CHRO complaint and notice of intent to sue; or correspondence and other documents that are privileged by the attorney-client relationship.

10. The complainant maintains that the respondent MCAA should not be permitted to claim any exemption to disclosure except 1-19(b)(4), G.S., since that was the only claim to exemption cited by the MCAA in its letter of denial dated May 27, 1993.

Docket #FIC 93-174 (MCAA only) Page 3

11. Because the MCAA is now asserting Mr. Haskins' rights under 1-19(b)(2), G.S., and the claim of attorney-client privilege that would have been created after the complainant's CHRO complaint and her notice of intent to sue, the Commission will consider all of the respondent MCAA's claims of exemption. The Commission finds, however, that the respondent MCAA has had more than ample time and opportunity to make these additional claims of exemption and to offer evidence concerning them.

12. Section 1-19(b)(2), G.S., permits an agency to withhold from disclosure "personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy."

13. It is found that Mr. Haskins' personnel file contains performance evaluations, "personnel action forms" (which list personal directory information as well as compensation information), Mr. Haskins' contracts of employment with MCAA, his in-service training certifications, commendations from various groups, and medical information.

14. MCAA contends that disclosure of the information described in paragraph 13, above, would constitute an invasion of Mr. Haskins' personal privacy because he claims a reasonable expectation of privacy with respect to such information.

15. It is found that disclosure of the medical information in Mr. Haskins' personnel file (which the complaint is not seeking) would constitute an invasion of his personal privacy and is therefore exempt from disclosure under 1-19(b)(2), G.S.

16. It is also found, however, that the MCAA failed to prove that disclosure of the remaining information in Mr. Haskins' personnel file would constitute an invasion of personal privacy because: (a) Mr. Haskins' obviously coached and self-serving testimony that he had "a reasonable expectation of privacy" with respect to the entire contents of his personnel file is found to be neither credible nor sufficient to establish the criteria for an invasion of personal privacy under the standards set forth in Perkins v. Freedom of Information Commission, 228 CONN. 158 (1993), and (b) the MCAA failed to prove that disclosure of the remaining information would be highly offensive to a reasonable person and that such information does not pertain to legitimate matters of public concern. Indeed, a record of a public employee's compensation has been long and consistently held to be a non-exempt public record; a public employment contract is statutorily a public record under 1-20a(a), G.S.; and no reasonable person would consider embarrassing, let alone highly offensive, the disclosure of in-service training certifications and commendations.

Docket #FIC 93-174 (MCAA only) Page 4

17. It is therefore concluded that, with the exception of medical information, the contents of Mr. Haskins' personnel file are not exempt from disclosure under 1-19(b)(2), G.S.

18. Section 1-19(b)(4), G.S., provides that a public agency need not disclose:

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.

19. Section 1-19(b)(10), G.S., provides in relevant part that a public agency need not disclose "communications privileged by the attorney-client relationship."

20. It is found that the respondent MCAA is a party against which the complainant has brought a claim, as defined in 1-18a(g), G.S.

21. It is further found that the complainant's claim against the respondent MCAA is currently pending, within the meaning of 1-18a(g) and 1-19(b)(4), G.S.

22. It is found that the requested records, as described in paragraph 3, above, in the custody of the respondent MCAA can be divided between those which were created prior to the complainant's CHRO complaint and the notice of intent to sue, and which consist of Mr. Haskins' personnel file, attendance records, correspondence between the complainant and Mr. Haskins concerning her assignments and performance, minutes of the MCAA's board of directors meetings, minutes of the Head Start Policy Council meetings, minutes of administrative staff meetings, and correspondence among MCAA employees and between MCAA employees and others concerning the complainant; and those records which were created after the CHRO complaint and the notice of intent to sue, and which consist of Mr. Haskins' responses to written inquiries from counsel, correspondence to and from Mr. Haskins and counsel, and records prepared by counsel concerning the subject of the complainant's CHRO complaint and the notice of intent to sue. There was no evidence of the existence of complaints against Mr. Haskins brought by other persons.

Docket #FIC 93-174 (MCAA only) Page 5

23. It is found that the respondent MCAA failed to prove that the records identified in paragraph 22, above, that were created prior to the CHRO complaint and the notice of intent to sue, constitute records that pertain to either "strategy" or "negotiations" with respect to such pending claims or pending litigation, within the meaning of 1-19(b)(4), G.S., or records containing communications privileged by the attorney-client relationship, within the meaning of 1-19(b)(10), G.S.

24. It is found, however, that the records identified in paragraph 22, above, that were created after the CHRO complaint and the notice of intent to sue, constitute records containing communications privileged by the attorney-client relationship within the meaning of 1-19(b)(10), G.S., and are consequently exempt from disclosure.

25. It is therefore concluded that the respondent MCAA violated 1-19(a), G.S., by failing to provide the complainant with access to inspect the records identified in paragraph 22, above, that were created prior to the complainant's CHRO complaint and notice of intent to sue, with the exception of any medical information contained in Mr. Haskins' personnel file.

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

1. The respondent MCAA shall forthwith provide the complainant with access to inspect or copy all records identified as those created prior to the complainant's CHRO complaint and the notice of intent to sue, as set forth in paragraph 22 of the findings, above, with the exception of any medical information contained in Mr. Haskins' personnel file.

2. In complying with paragraph 1 of the order, above, the respondent MCAA shall provide the complainant with access to inspect or copy all complaints in its custody, brought by persons other than the complainant herein, against Mr. Haskins, if such complaints exist.

3. In complying with paragraph 1 of the order, above, the respondent MCAA may redact or otherwise mask or conceal any medical information contained in Mr. Haskins' personnel file.

Docket #FIC 93-174 Page 6

Approved by Order of the Freedom of Information Commission at its regular meeting of January 26, 1994.

Elizabeth A. Leifert

Acting Clerk of the Commission

Docket #FIC 93-174 Page 7

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 Preato

c/o Ralph E. Wilson, Esq.

137 South Main Street

Middletown, CT 06457

Meriden Department of Health and Human Services

Meriden Department of Human Rights

Meriden.Police Department

Meriden Personnel Department

c/o Christopher Hankins, Esq.

Staff Attorney

142 East Main Street

Meriden, CT 06450-8022

Meriden Community Action Agency

c/o Pamela J. Norley, Esq.

Siegel, O'Connor, Schiff & Zangari, P.C.

370 Asylum Street

Hartford, CT 06103

Elizabeth A. Leifert

Acting Clerk of the Commission

FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Final Decision

Linda Preato

Complainant

against Docket #FIC 93-174

Meriden Department of Health and Human Services, Meriden Department

of Human Rights, Meriden Police Department, Meriden Personnel

Department, Meriden Community Action Agency

Respondent January 26, 1994

The above-captioned matter was heard as a contested case on September 24, 1993, at which time the complainant and all respondents, except the Meriden Community Action Agency (hereinafter, "MCAA"), appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

The Notice of Hearing and Order to Show Cause in this case was served upon all respondents in care of Meriden Staff Attorney Christopher P. Hankins. Until the date of the hearing in this matter, Mr. Hankins failed to notify the respondent MCAA of the hearing and did not apprise the Commission that he was not representing the MCAA. For reasons of administrative economy, and over the objection of the appearing respondents, the undersigned Hearing Officer determined to go forward with the hearing as to all respondents represented by Attorney Hankins, but also determined that the hearing would not address the complaint as against the MCAA in any way that would prejudice it.

By order of the undersigned Hearing Officer, the hearing in this matter was reopened on October 12, 1993 after sending notice to all the parties, including the MCAA, by certified mail, at which time the plaintiff alone appeared. Attorney Hankins notified counsel for the Commission that he spoke with counsel for MCAA before the reopened hearing, apprised him of the reopened hearing and was told that counsel for MCAA did not intend to appear. Counsel for the MCAA did not contact the Commission prior to the reopened hearing requesting a continuance.

After consideration of the entire record, the following facts are found and conclusions of law are reached:

Docket #FIC 93-174 Page 2

1. The respondents are public agencies within the meaning of 1-18a(a), G.S.

2. By letter dated May 27, 1993, the complainant requested access to inspect all portions of the personnel file of, and all complaints, documents and correspondence pertaining to any complaint concerning, one Gregory Haskins, Executive Director of the MCAA.

3. By letter dated June 1, 1993, all appearing respondents denied the complainant's May 27, 1993 request, claiming that such records are exempt from disclosure under 1-19(b)(4), G.S.

4. It is also found that by letter dated June 9, 1993, the MCAA denied the complainant's May 27, 1993 request, also claiming that such records are exempt from disclosure under 1-19(b)(4), G.S.

5. By letter dated June 16, 1993, and filed with the Commission on June 18, 1993, the complainant appealed to the Commission from the denial of her May 27, 1993 request for access to public records.

6. It is found that on or about May 20, 1993, the complainant filed notice of its intent to sue the City of Meriden and the MCAA, among others, pursuant to 7-465 and 7-101a, G.S.

7. It is also found that on or about May 20, 1993, the complainant instituted a complaint with the State Commission on Human Rights and Opportunities (hereinafter, "CHRO") for sexual harassment against Mr. Haskins and, among others, against the City of Meriden and the MCAA with respect to their acquiescence in Mr. Haskins' conduct. As of the date of the hearing in the complaint before this Commission, the CHRO complaint was still pending.

8. The respondents assert that the requested records are exempt from disclosure pursuant to 1-19(b)(4), G.S., which provides that a public agency need not disclose:

9. It is found that the respondents are agencies and departments of the City of Meriden which is a party against which the complainant has brought claims, as defined in 1-18a(g), G.S.

Docket #FIC 93-174 Page 3

10. It is also found that the respondent MCAA is a party against which the complainant has brought claims, as defined in 1-18a(g), G.S.

11. It is further found that the complainant's claims against all the respondents are currently pending within the meaning of 1-18a(g) and 1-19(b)(4), G.S.

12. The complainant nonetheless asserts that the 1-19(b)(4), G.S., exemption to disclosure does not apply here because the requested records do not pertain to strategy or negotiations with respect to the subject pending claims.

13. It is found that although the respondents are public agencies against which there are pending claims within the meaning of 1-19(b)(4), G.S., the respondents failed to prove that the records at issue constitute records that pertain to either "strategy" or "negotiations" with respect to such pending claims, within the meaning of the 1-19(b)(4), G.S., exemption to disclosure.

14. It is therefore concluded that the respondents violated 1-15, G.S., by failing to provide the complainant with access to inspect the records identified in paragraph 2, above.

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

1. Each respondent shall forthwith provide the complainant with access to inspect all portions of the personnel file of, and all complaints, documents and correspondence pertaining to any complaint concerning, one Gregory Haskins, Executive Director of the MCAA, which are within such respondent's custody or possession.

2. The hearing is reopened with respect to the MCAA.

Approved by Order of the Freedom of Information Commission at its regular meeting of November 10, 1993.

Elizabeth A. Leifert

Acting Clerk of the Commission

Docket #FIC 93-174 Page 4

THE PARTIES TO THIS CONTESTED CASE ARE:

Linda Preato

c/o Ralph E. Wilson, Esq.

137 South Main Street

Middletown, CT 06457

Meriden Department of Health and Human Services,

Meriden Department of Human Rights, Meriden Police

Department, Meriden Personnel Department and Meriden

Community Action Agency

c/o Meriden Community Action Agency

178State Street

Meriden, CT 06450-5695

Elizabeth A. Leifert

Acting Clerk of the Commission