FREEDOM OF INFORMATION
COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by Final Decision
Jeffrey C. Cole and WFSB/TV
3,
Complainants
against Docket
#FIC 95-74
James Strillacci, Chief of
Police, West Hartford Police Department,
Respondent January 24, 1996
The above-captioned matter was heard as a contested
case on October 6, October 20 and November 16, 1995, at which times the
complainants and the respondent appeared, stipulated to certain facts and
presented testimony, exhibits and argument on the complaint. Richard Leavitt and Kenneth O'Brien were
granted party status. AFSCME Council 15
Local 1283, AFL-CIO (hereinafter "the union") was granted intervenor
status and permitted to present testimony and argument on the complaint. One of the records at issue, a video tape,
was taken in-camera and reviewed following the hearing into this matter.
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. It is
found that on February 2, 1995 at approximately 3:30 p.m. a belly dancer
performed in the Detective Division conference room of the West Hartford Police
Department ("WHPD") on the occasion of the retirement from the WHPD
of Leavitt and O'Brien ("dancing incident").
3. It is
found that the respondent learned of the dancing incident on February 8, 1995
and ordered an internal investigation.
4. It is
found that following the investigation, the respondent concluded in a March 14,
1995 report that the dancing incident violated the Town of West Hartford's
("town") policy on sexual harassment; occurred in a town building;
involved on-duty town employees and town property; and violated the town code
of Ethics, the WHPD duty manual and the town personnel rules.
5. It is
found that several WHPD employees ("employees"),
Docket #FIC 95-74 Page 2
including the supervisor who
approved the dance, three detectives who planned it and a fourth who taped it
were disciplined as a result of the respondent's conclusions, as described in
paragraph 4, above.
6. By letter
of complaint dated March 21, 1995 and filed with the Commission on March 22,
1995, the complainants appealed alleging that the respondent violated the
Freedom of Information ("FOI") Act by denying them access to the
video tape of the dancing incident and the names of the employees
disciplined. The complainants requested
that a civil penalty be imposed upon the respondent.
7. It is
found that on March 9 and March 13, 1995 the complainants requested records
from the respondent pertaining to the dancing incident. Specifically, by letter dated March 13,
1995, the complainants requested that the respondent provide them with access
to:
a.
all documents, records, pictures, audio and video tape related to the
dancing incident; and
b.
all information concerning any disciplinary action taken against any
officer or employee of the department concerning the incident.
8. It is
found that by letter dated March 16, 1995 the respondent provided the
complainants with a copy of two reports: the March 14, 1995 report, described
in paragraph 4, above, and another report prepared by the assistant police
chief and submitted to the respondent on March 7, 1995 containing his
investigation findings with respect to the dancing incident. The assistant chief's report contained
redactions of all the names of the employees disciplined and involved with the
dancing incident.
9. It is
found that the respondent denied the complainants' request for the video tape
and the names of the employees involved with the dancing incident on or about
March 20, 1995. Accordingly, the video
tape and the names of the employees disciplined and contained in the March 14,
1995 report (described in paragraphs 4 and 8, above) are the records at issue
in this appeal.
10. It is
found that on or about March 15, 1995 the respondent notified the employees
concerned of the complainants' request for the video tape and their names.
11. It is
found that in response to the notification
Docket #FIC 95-74 Page 3
described in paragraph 10,
above, the president of the union filed a written objection to disclosure on
March 16, 1995, one clerical employee, through local 521, filed a written
objection anonymously on March 16, 1995, O'Brien filed a written objection on
March 22, 1995, Leavitt objected to disclosure at the hearing into this matter
and the union (on behalf of several anonymous employees) again objected to the
diclosure at the hearing into this matter.
12. The
respondent and intervenors contend that the video tape and the names of the
employees concerned are not disclosable because: a) the video tape is not a
public record; and b) the video tape and names are similar file as they are
records of a sexual harassment investigation, the disclosure of which would
constitute an invasion of personal privacy.
13. In
addition, the intervenors contend that the video tape was obtained illegally
and is exempt pursuant to 1-19(b)(12), G.S.
14. Section
1-18a(d), G.S., defines public records or files as:
...any recorded data or information
relating to the conduct of the public's business prepared, owned, used,
received or retained by a public agency, whether such data or information be
handwritten, typed, tape-recorded, printed, photostated, photographed or
recorded by any other method.
15. Section
1-19(a), G.S., provides in relevant part:
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 inspect such records promptly during regular office or business hours
or to receive a copy of such records in accordance with the provisions of
section 1-15. Any agency rule or
regulation, or part thereof, that conflicts with the provisions of this
subsection or diminishes or curtails in any way the rights granted by this
subsection shall be void.
Docket #FIC 95-74 Page 4
16. It is
concluded that the video tape and the assistant chief's report containing the
names of the employees disciplined are public records within the meaning of
1-18a(d) and 1-19(a), G.S.
17. It is
also concluded that the video tape and the assistant chief's report containing
the names of the employees disciplined are similiar files within the meaning of
1-19(b)(2), G.S.
18. Section
1-19(b)(2), G.S., provides that:
Nothing in sections 1-15, 1-18a, 1-19
to 1-19b, inclusive, and 1-21 to 1-21k, inclusive, shall be construed to
require disclosure of...personnel or medical files and similar files the
disclosure of which would constitute an invasion of personal privacy.
19. 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
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.'
20. 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.
21. It is
found that the video tape and names of the employees disciplined and contained
in the assistant chief's report pertain to legitimate matters of public
concern.
22. It is
found that disclosure of the video tape and the names of the employees
disciplined and contained in the assistant chief's report would not be highly
offensive to a reasonable person.
Docket #FIC 95-74 Page
5
23. It is
found that the video tape was not obtained illegally.
24. It is
therefore concluded that 1-19(b)(2) and (12), G.S., do not preclude
disclosure of the video tape and the names of the employees disciplined and
contained in the assistant chief's report.
25. The
Commission takes administrative notice of the record and decision in docket
#FIC 77-202, Karlynn Carrington and the Hartford Courant v. Town of Bloomfield
et al.; aff'd Town of Bloomfield v. FOIC, NO. 1454226 (1978), Schaller, J.
26. It is
concluded that the respondent violated 1-19(a) and 1-15(a), G.S., by
failing to provide the complainants with access to the video tape and names of
the employees disciplined and contained in the assistant chief's report.
27. The
Commission in its discretion declines to impose a civil penalty in this case.
The following order by the Commission is hereby
recommended on the basis of the record concerning the above-captioned
complaint:
1. The
respondent shall forthwith provide the complainant with access to the video
tape and the names of the employees disciplined and contained in the assistant
police chief's report, described in paragraph 8, of the findings, above.
2. The
respondent shall henceforth strictly comply with the requirements of
1-15 and 1-19(a), G.S.
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 95-74 Page
6
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:
Jeffrey C. Cole and WFSB/TV 3
c/o Alan Robert Baker, Esq.
William J. O'Sullivan, Esq.
Baker & Fulco, P.C.
100 Great Meadow Road
Suite 100
Wethersfield, CT 06109-2355
James Strillacci, Chief of
Police West Hartford Police Department
c/o Patrick G. Alair, Esq.
Assistant Corporation Counsel
Town of West Hartford
50 South Main Street
West Hartford, CT 06107
Kenneth O'Brien, Intervenor
c/o Susan V. Tirrell, Esq.
62 LaSalle Road, Suite 310
West Hartford, CT 06107
Harry B. Elliott, Jr., Esq.
Council 15 Legal Department
290 Pratt Street
Meriden, CT 06450
Elizabeth A. Leifert
Acting Clerk of the Commission