FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Final Decision

Curtis R. Wood,

Complainant

against Docket #FIC 95-26

Director of Affirmative Action, State of

Connecticut, Department of Correction,

Respondent January 24, 1996

The above-captioned matter was re-opened and heard as a contested case on November 17, 1995, 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 1-18a(a), G.S.

2. By letter of complaint dated January 1, 1995 and filed with the Commission on February 3, 1995 the complainant appealed alleging that the respondent violated the Freedom of Information ("FOI") Act by denying him access to a copy of an investigation file pertaining to an investigation conducted by the respondent with respect to a discrimination complaint filed against the respondent by the complainant (hereinafter "investigation file"). The complainant requested that the Commission impose a civil penalty upon the respondent.

3. It is found that by letter dated January 12, 1995, the complainant requested that the respondent provide him with a copy of the "final investigator's report file."

4. It is found that the January 12, 1995 letter, described in paragraph 3, above, was delivered by certified mail to 340 Capitol Avenue, the respondent's address, and signed for as received on January 17, 1995.

Docket #FIC 95-26 Page 2

5. It is found that prior to the hearing into this matter and following the respondent's receipt of this Commission's notification of the complainant's appeal, the respondent by letter dated February 23, 1995 and filed with the Commission on February 28, 1995 informed the Commission that she had not received the complainant's January 12, 1995 letter of request and that she was conducting an investigation as to who signed for such letter.

6. The respondent then turned over the matter to the Attorney General's office which office represents the respondent. At the hearing into this matter, the respondent contended that the requested investigation file records are exempt from disclosure.

7. It is found that the investigation file at issue contains the following records: a list of all the captains who took and passed the major's exam, their scores, rank, hiring packages, applications, performance evaluations, attendance records and recommendations, memoranda to file concerning the interviews conducted during the investigation and the Department of Correction inter-departmental memoranda.

8. It is found that the records contained in the investigation file, as described in paragraph 7, above, are public records within the meaning of 1-18a(d) and 1-19(a), G.S.

9. It is found that the investigation which gave rise to the investigation file records at issue was concluded on or about December, 1994.

10. The respondent contends that the records contained in the investigation file are exempt from disclosure pursuant to 1-19(b)(2) and 1-19b(b), G.S., and Regulation of Connecticut State Agencies 46a-68-46, subsection (6)(b).

11. It is found that some of the investigation file records as described in paragraph 7, above, are personnel and similiar file within the meaning of 1-19(b)(2), G.S. However other records including the list of names of the captains taking the exam, their scores and rank, and memoranda concerning the investigation are not.

12. Besides its general claim of exemption under 1-19(b)(2), G.S., the respondent has failed to provide any evidence to show that disclosure of any of the records contained in the investigation file would constitute an invasion of personal privacy.

13. Perkins v. FOI Commission, 228 Conn. 158 (1993), sets forth the standard for the exemption for public disclosure under 1-19(b)(2), G.S., by setting forth a two-part test:

When the claim for exemption involves

Docket #FIC 95-26 Page 3

1-19(b)(2), the plaintiffs must meet a twofold burden of proof . . First, they must establish that the files in question are within the categories of files protected by the exemption, that is, personnel, medical or 'similar' files. Second, they must show that disclosure of the records 'would constitute an invasion of personal privacy.'

14. The Court in Perkins further instructs:

[T]he invasion of personal privacy exception of 1-19(b)(2) precludes disclosure, therefore, only when the information sought by a request does not pertain to legitimate matters of public concern and is highly offensive to a reasonable person.

15. It is found that the records contained in the investigation file pertain to legitimate matters of public concern.

16. It is found that in the absence of any evidence to suggest otherwide, disclosure of the records contained in the investigation file would not be highly offensive to a reasonable person.

17. It is found that even if disclosure of the records contained in the investigation file would be highly offensive to a reasonable person, pursuant to Perkins, disclosure would be precluded only when the information sought does not pertain to legitimate matters of public concern.

18. With respect to its second claim for non-disclosure, it is found that the respondent has failed to provide any evidence that disclosure of the records contained in the investigation file would limit the rights of litigants within the meaning of 1-19b(b), G.S. The respondent has indicated that the a Commission on Human Rights and Opportunities complaint filed by the complainant against the respondent was denied, and the complainant has not received a right to sue letter from the EEOC. Even if such claims existed and were pending, the respondent has failed to provide any evidence of any existing discovery rights which will be limited within the meaning of 1-19b(b), G.S.

19. With respect to the respondent's final claim of exemption, sub-section 6(b) of 46a-68-46 of the Regulation of Connecticut State Agencies expressly provides that records [of grievances and dispositions] shall be confidential except where disclosure is required by law. [Emphasis added].

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20. It is concluded that 1-19(a), G.S., is such a law which requires disclosure.

21. It is therefore concluded that the respondent violated 1-15 and 1-19(a), G.S., when it failed to provide the complainant with access to a copy of the records contained in the investigation file.

22. It is found that the foregoing violation was without reasonable grounds within the meaning of 1-21i (b)(2), G.S.

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

1. The respondent shall within seven days of the receipt of the notice of the final decision in this matter provide the complainant with access to a copy of the records contained in the investigation file without charge.

2. The respondent shall forthwith remit to the Commission a civil penalty in the amount of one hundred dollars ($100.00)

Approved by Order of the Freedom of Information Commission at its regular meeting of January 24, 1996.

Elizabeth A. Leifert

Acting Clerk of the Commission

Docket #FIC 95-26 Page 5

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:

Curtis R. Wood

309 Thompson Street

East Haven, CT 06513

Director of Affirmative Action, State of Connecticut, Department of Correction

c/o Margaret Chapple, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

Elizabeth A. Leifert

Acting Clerk of the Commission