FREEDOM OF INFORMATION
COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by Final Decision
Michael J. Proto,
Complainant
against Docket
#FIC 95-295
Town of Hamden and Hamden
Town Attorney,
Respondents June 26, 1996
The above-captioned matter was heard as a contested
case on February 14, 1996, at which time the complainant and the respondents
appeared 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
respondents are public agencies within the meaning of 1-18a(a), G.S.
2. It
is found that in March 1995, the complainant underwent a psychological
evaluation and took a polygraph test as part of the application and selection
process for the position of entry level police officer with the respondent town
of Hamden ("town").
3. It
is found that by letter dated April 24, 1995, the complainant requested that he
be provided with all relevant information related to his application for hire,
including, but not limited to, the written evaluations and conclusions of the
polygraph examiner and psychologist ("April request").
4. It
is found that by letter dated April 25, 1995, the respondent town attorney
acknowledged receipt of the complainant's April request, informed him that the
request was under review, and stated that he would be contacted by mail once a
determination about disclosure of the requested records had been made.
5. It
is found that by letter dated August 15, 1995, the complainant again requested
that he be provided with "copies of, or access to the written evaluations
of the polygraph examiner and psychologist" ("August request").
Docket #FIC 95-295 Page
Two
6. By
letter of complaint dated August 19, 1995, and filed with the Commission on
August 23, 1995, the complainant appealed the respondents' failure to respond
to, or comply with his August request.
7. It
is found that by letter dated August 21, 1995, the respondent town attorney
informed the complainant that the requested records were exempt from disclosure
under 1-19(b)(4), G.S., because of the complainant's pending litigation
with the town.
8. It
is found that the requested records are public records within the meaning of
1-18a(d) and 1-19(a), G.S.
9. Section
1-19(b)(4), G.S., states in relevant part that disclosure shall not be required
of:
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; ...
10. It
is found that at the time of the complainant's August request he had filed
against the respondent town a complaint with the state's Commission on Human
Rights and Opportunities ("CHRO complaint"), and a civil action
("lawsuit").
11. It
is found that the respondents failed to prove that the requested records, which
were created as part of the town's police officer selection process, pertain in
any way to strategy and negotiation of either the CHRO complaint or lawsuit,
within the meaning of 1-19(b)(4), G.S.
12. It
is therefore concluded that the respondents failed to prove that the requested
records are exempt from disclosure under 1-19(b)(4), G.S.
13. At
the hearing on this matter the respondents for the first time argued that the
requested records are exempt from disclosure pursuant to 1-19(b)(6),
1-19(b)(10) and 52-146(c), G.S.
14. Section
1-19(b)(6), G.S., provides that disclosure shall not be required of "test
questions, scoring keys and other examination data used to administer a
licensing examination, examination for employment or academic
examination."
Docket #FIC 95-295 Page
Three
15. It
is found that the evaluative records that the complainant is seeking contain
opinions and conclusions about his fitness to be a police officer as determined
by a psychologist and polygraph examiner.
16. It
is found that the requested records were not used to administer an employment
examination within the meaning of 1-19(b)(6), G.S., and therefore it is
concluded that the respondents failed to prove that the subject records are
exempt from disclosure under 1-19(b)(6), G.S.
17. Section
1-19(b)(10), G.S., in relevant part, provides that disclosure shall not be
required of "records ... reports and statements exempted by federal law or
state statute ...."
18. The
respondents argue that the subject records are exempt from disclosure under
1-19(b)(10), G.S., by operation of 52-146c, G.S.
19. Section
52-146c(b), G.S., states in relevant part that communications between a
psychologist and patient are privileged and a psychologist "shall not
disclose any such communication unless the person or his authorized
representative consents to waive the privilege and allow such
disclosure...."
20. It
is found that the complainant underwent psychological evaluation solely as a
required part of the police officer selection process and not as a patient for
purposes of consultation about a diagnosis or treatment within the meaning of
52-146c(1), G.S.
21. It
is found, however, that even if the evaluations of the psychologist can be
construed as "communications" within the meaning of 52-146c(3),
G.S., the complainant has clearly indicated his intention and desire to have
the evaluative records disclosed to him, thereby waiving any applicable
privilege in accordance with 52-146c(b), G.S.
22. The
respondents argue that the complainant waived his right to know his
psychological test results.
23. It
is found that on or about March 3, 1995, the complainant signed a "General
Informed Consent and Legal Release" form that included a waiver of the
"test results, interpretations made, and access to the original data from
which judgments have been made" ("waiver").
Docket #FIC 95-295 Page
Four
24. The
complainant argues that he had to sign the waiver since continued eligibility
in the selection process, and the police department's conditional offer of
employment was wholly contingent upon his undergoing and completing
psychological and polygraph examinations.
25. It
is found that the mere existence of the waiver is insufficient to exempt the
subject records from disclosure to the complainant under either
1-19(b)(10) or 52-146c(b), G.S.
26. It
is found that the respondents failed to prove the applicability of 52-146c
to the requested psychological records.
27. It
is therefore concluded that the respondents failed to prove that the requested
psychological records are exempt from disclosure under 1-19(b)(10), G.S.
by operation of 52-146c, G.S.
28. It
is found that the respondents have made no additional claim of exemption to
disclosure of the requested polygraph
records.
29. It
is concluded, therefore, that the respondents violated 1-15 and
1-19(a), G.S., by failing to promptly provide the complainant with a copy of
his polygraph and psychological examination results.
The following order by the Commission is hereby
recommended on the basis of the record concerning the above-captioned
complaint:
1. Within
seven days of the date of mailing of the notice of final decision in this case,
the respondents shall provide the complainant with a copy of the requested
records, as more fully described in paragraph 5 of the findings, above, free of
charge, and furnish to the complainant an affidavit stating that the records
provided constitute the only records responsive to his August request.
2. Henceforth,
the respondents shall strictly comply with the public records requirements set
forth in 1-15 and 1-19(a), G.S.
Approved by Order of the
Freedom of Information Commission at its regular meeting of June 26, 1996.
Elizabeth A. Leifert
Acting Clerk of the
Commission
Docket #FIC 95-295 Page
five
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:
Michael Proto
254 Mill Road
North Haven, CT 06473
Town of Hamden and Hamden
Town Attorney
c/o Susan Gruen, Esq.
2372 Whitney Avenue
Hamden, CT 06518
Elizabeth A. Leifert
Acting Clerk of the Commission