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].
Docket #FIC 95-26 Page
4
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
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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