FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        Final Decision

 

Bruce Bellm, Kendres Lally, Philip Cater, Peter Hughes,

Carol Northrop, Brad Pellissier, Todd Higgins and Bruce Garrison,

 

                                Complainants

 

                against                   Docket #FIC 95-81

 

State of Connecticut, Office of Protection and Advocacy for Persons

with Disabilities, Sharon Story and Marlene Fein,

 

                                Respondents                        March 13, 1996

 

                The above-captioned matter was heard as a contested case on October 27 and November 27, 1995, at which times the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  At the October 27, 1995 hearing Sharon Story and Marlene Fein, whose records are some of the records at issue, were granted party status, and AFSCME Local 2663 was granted intervenor status limited to presenting argument on the complaint.

 

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

 

                1.  The respondent office is a public agency within the meaning of 1-18a(a), G.S.

 

                2.  By memorandum dated March 15, 1995, the complainants requested that the respondent office provide them with access to inspect and copy the following records pertaining to and used during the selection process for the hiring of the Assistant Director of the Abuse Investigation Division (hereinafter "Assistant Director"):

 

                                a)             a description of the selection process including all categories/factors used to evaluate candidates;

 

                                b)            the weights of categories/factors if applicable;

 

                                c)             the questions asked in each interview;

 

                                d)            a description of the rating system used to rate candidates;

 

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                                e)             by category/factor, the score or rating of each candidate;

 

                                f)             the rank order of the candidates after each phase of the selection process;

 

                                g)            any notes made by individual hiring committee members;

 

                                h)            any and all documents utilized during the selection process;

 

                                i)              supervisor's comments regarding individual candidates;

 

                                j)              the criteria utilized by the hiring committee to determine which candidates qualified for the final interview; and

 

                                k)             the "matrix" utilized during the selection process.

 

                3.  Having failed to receive a reply to their March 15, 1995 request the complainants, by letter dated March 23, 1995, filed this appeal with the Commission on March 27, 1995.

 

                4.  It is found that on December 16, 1994 and January 6, 1995 the complainants had made two requests for records to the respondent office that were similar to the March 15, 1995 request, now at issue in this appeal.

 

                5.  It is found that the respondent office responded to the December 16, 1994 and January 6, 1995 requests, described in paragraph 4, above, by letter dated January 11, 1995, and at that time provided the complainants with some of the requested records but denied access to others.

 

                6.  It is found that the respondent office maintains the following records which it has not provided to the complainants, and which are now at issue in this appeal:

 

                                a)             written questions asked individually of the four candidates during the second round of interviews;

 

                                b)            handwritten notes of the selection committee members made during interviews on note pads and on question sheets;

 

                                c)             supervisor's comments contained on candidates' prior performance ratings;

 

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                                d)            Melanie Haber's handwritten notes regarding discussions with supervisors;

 

                                e)             a work-sheet or matrix (consisting of three pages, the first page having been created after the March 15, 1995 request, and the remaining pages having been in existence before such request) containing candidates names, categories or factors being assessed pertinent to the selection process and numerical scores assigned to each candidate;

 

                                f)             respondents Story and Fein's performance evaluations, attendance records and Department of Administrative Services ("DAS") score and rank; and

 

                                g)            a December 13, 1994 memorandum from Jim McGaughey, Executive Director of the respondent office to Lauren Schuck, Affirmative Action Officer outlining the selection process and prepared in response to a discrimination complaint filed against the respondent office by an unsuccessful candidate.

 

                7.  It is found that the requested records now at issue and described in paragraph 6, above, (hereinafter "requested records") are public records within the meaning of 1-18a(d) and 1-19(a), G.S.

 

                8.  The respondent office contends that all of the requested records are exempt from disclosure pursuant to 1-19(b)(6), 5-225 and 5-237, G.S.; that the records described at paragraph 6a) through 6e), above, are also exempt pursuant to 1-19(b)(1), G.S.; that the records described in paragraph 6a) through through 6f), above, are also exempt pursuant to 1-19(b)(2), G.S.; and that the December 13 memorandum, described in paragraph 6g), above, is unresponsive to the request and exempt from disclosure pursuant to 1-19(b)(2) and 1-19(b)(4), G.S.

 

                9.  It is found that the complainants were unsuccessful candidates for promotion to the position of Assistant Director.

 

                10.  It is found that the respondent Story, the successful candidate, and respondent Fein, an unsuccessful candidate objected on January 13 and 19, 1995, respectively, to the release of records pertaining to them following the respondent office's timely notification that their performance appraisals, leave and attendance records and DAS score and rank records were requested by the complainants.

 

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                11.  Section 1-19(b)(6), G.S., permits the nondisclosure of test questions and other examination data used to administer an examination for employment.

 

                12.  It is concluded that the written questions asked of candidates during the examination, as described in paragraph 6a, above, are test questions used to administer an examination for employment within the meaning of 1-19(b)(6), G.S., and are permissibly exempt from public disclosure.

 

                13.  With respect to the selection committee members' handwritten notes, the supervisor's comments, Haber's notes, the matrix and DAS score and rank, described in paragraphs 6b) through 6f), inclusive, above, it is found that such records constitute "papers, markings and other items used in determining the final earned ratings" within the meaning of 5-225.

 

                14.  Section 5-225, G.S., in relevant part, gives those who take state employment examinations the right to inspect certain examination records used in the determination of a final earned rating on such employment examinations.

 

                15.  Section 5-237(a), G.S., in relevant part, gives any state employee in the classified service the right to inspect their employment service ratings.

 

                16.  It is concluded that under the specific facts of this case the selection committee members' notes, comments, matrix, and the DAS score and rank, compiled and used for the purpose of determining the final earned rating in the examination for promotion to Assistant Director are disclosable only to the candidate pursuant to Personnel Director v. FOIC, 214 Conn. 312 (1990).

 

                17.  With respect to the respondents Story and Fein's performance evaluations and attendance records, as described in paragraph 6f) above, it is found that such records constitute a personnel file within the meaning of 1-19(b)(2), G.S.

 

                18.  Under Perkins v. FOI Commission, 228 Conn. 158 (1993) the test for exemption from disclosure under 1-19(b)(2), G.S., consists of two parts and requires that those claiming exemption 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.

 

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                19.  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. [Emphasis added.]

 

                20.  It is found that disclosure of the requested performance evaluations and attendance records would not be highly offensive to a reasonable person.

 

                21.  Further, it is found that the information contained in public employees' performance evaluations and attendance records pertains to legitimate matters of public concern.

 

                22.  It is therefore concluded that the requested performance evaluations and attendance records are not exempt from disclosure pursuant to 1-19(b)(2), 1-19(b)(6), 5-225 and 5-237, G.S.

 

                23.  At the request of the respondent office, following the hearing on this matter an in camera inspection was conducted on the December 13, 1994 memorandum, described in paragraph 6g) above.

 

                24.  It is found that the December 13, 1994 memorandum describes the selection process and the criteria used for final selection of the Assistant Director as recalled by the respondent office's Executive Director.

 

                25.  It is also found that the December 13, 1994 memorandum is responsive to the complainants' March 1995 request for informatiom pertinent to the selection process.

 

                26.  It is further found that the December 13, 1994 memorandum does not constitute a personnel or similar file within the meaning of 1-19(b)(2), G.S.

 

                27.  Even if the December 13, 1994 memorandum could be considered a personnel or similar file, it is found that disclosure of the information contained therein would not be highly offensive to the reasonable person.  It is further found that the method and criteria used to select public employees pertain to legitimate matters of public concern.

 

                28.  It is therefore concluded that the December 13, 1994 memorandum is not exempt from disclosure pursuant to 1-19(b)(2), G.S.

 

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                29.  Section 1-19(b)(4), G.S., permits the nondisclosure of records pertaining to strategy and negotiations with respect to pending claims or pending litigation during the pendency of such claim or litigation.

 

                30.  It is found that the December 13, 1994 memorandum does not pertain to strategy or negotiations within the meaning of 1-19(b)(4), G.S.

 

                31.  It is therefore concluded that 1-19(b)(4), G.S., does not exempt the memorandum from disclosure.

 

                32.  In light of the conclusions set forth in paragraphs 12 and 16, above, it is not necessary to address the respondents further claim of exemption as to 1-19(b)(1), G.S.

 

                33.  It is concluded that the respondent office did not violate the FOI Act when it failed to disclose the records described at paragraph 6a), 6b), 6c), 6d), 6e) and the DAS score and rank, described in paragraph 6f).

 

                34.  However, it is concluded that the respondent office violated the FOI Act when it failed to disclose the performance evaluations and attendance records, as described in paragraph 6f) and the December 13, 1994 memorandum, as described in paragraph 6g), above, to the complainants.

 

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

 

                1.  The respondent office shall within seven days of the receipt of the notice of the final decision in this matter provide the complainants with a copy of the requested performance evaluations, as described in paragraph 6f) and the December 13, 1994 memorandum, as described in paragraph 6g), of the findings, above.

 

                2.  The complaint is hereby dismissed with respect to the remaining records requested.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 13, 1996.

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission

 

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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:

Bruce Bellm, Kendres Lally, Philip Cater, Peter Hughes, Carol Northrop, Brad Pellissier, Todd Higgins and Bruce Garrison

c/o Bruce Bellm

117 Spring Hill Road

Storrs, CT 06268

 

State of Connecticut, Office of Protection and Advocacy for Persons with Disabilities

c/o Susan Quinn Cobb, Esq., Assistant Attorney General

55 Elm Street

P.O. Box 120

Hartford, CT 06141-0120

 

Sharon Storey and Marlene Fein

AFSCME, Council #4

c/o Jason Cohen, Esq.

J. William Gagne & Associates

1260 Silas Deane Highway

Wethersfield, CT 06109

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission