Freedom of Information Commission

of the State of Connecticut

 

 

In the Matter of a Complaint by                                    Final Decision

 

John J. Woodcock, III and Kathryn A. Hale,

 

                        Complainants

 

            against                                                              Docket #FIC 1995-324

 

Dana Whitman, Jr., Acting Town Manager,

Town of South Windsor,

 

                        Respondent                                          July 24, 1996

 

 

            The above-captioned matter was heard as a contested case on February 29, 1996, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The case was consolidated with Docket #FIC 95-343, John J. Woodcock, III v. Town Manager, Town of South Windsor, for purposes of hearing.

 

            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 July 14, 1995, her last day of work, former town manager Jean E. Zurbrigen granted $10,250 in incentive awards to 14 management-level town employees.

 

            3.  By letters dated August 25, September 12 and September 25, 1995, the complainants, who are members of the South Windsor Town Council, requested that the respondent provide them with records containing information on “all incentive awards, achievement awards and/or bonuses that have been received by Town of South Windsor (hereinafter “the town”) management personnel since June 18, 1990.”

 

 

 

 

 

 

 

Docket #FIC1995-324                                                                                    Page 2

 

 

            4.  By letter of appeal dated and filed on October 2, 1995, the complainants appealed to the Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with their requests.  In their letter of appeal, the complainants also requested the imposition of civil penalties against the respondent, which request was withdrawn at the hearing on this matter.

 

            5.  It is found that the requested information is contained in employee personnel files maintained by the respondent, as well as payroll records maintained by the town finance department.

 

            6.  It is found that the records containing the requested information are public records within the meaning of §§1-18a(d) and 1-19(a), G.S.

 

            7.  It is found that on September 13, 1995, the respondent provided complainant Woodcock with a list of town management employees, their position titles, and the amount of any incentive awards received by them in 1995.

 

            8.  It is found that on September 19, 1995, the respondent advised all town management personnel of the complainants’ requests in a staff meeting with management employees.

 

            9.  By letter dated September 27, 1995, the respondent informed the complainants’ that he had received objections to disclosure from 26 management employees; that six employees did not object and four others had not yet responded.  The respondent further indicated that he could provide the complainants with a partial list, although he would prefer not to.

 

            10.  It is found that on October 2, 1995, the respondent notified the management employees in writing of the complainants’ renewed September 25, 1995 records request, with attached blank forms to be completed and resubmitted to the respondent, indicating either consent or objection to disclosure of the requested records.

 

            11.  By letter dated October 11, 1995, the respondent provided the complainants with salary and incentive payment information from 1990-91 through 1994-95 for the ten employees who did not object to disclosure of the requested records.

 

            12.  The respondent claims that in the instances where town employees filed objections to disclosure of the requested records, the records are:  1) exempt from disclosure pursuant to §1-19(b)(2), G.S.; and alternatively, 2) exempt from disclosure until so ordered by this Commission pursuant to §§1-20(b) and (c), G.S.

 

 

Docket #FIC1995-324                                                                                    Page 3

 

 

            13.  Section 1-19(b)(2), G.S., permits the nondisclosure of “personnel, medical or similar files, the disclosure of which would constitute an invasion of personal privacy.”

 

            14.  Sections 1-20a(b) and (c), G.S., set forth a notification procedure to be followed by a public agency when it reasonably believes that a request for an employee’s personnel, medical or similar file constitutes an invasion of personal privacy:

 

“(b) Whenever a public agency receives a request to inspect or copy records contained in any of its employees personnel or medical files and similar files and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency shall immediately notify in writing (1) each employee concerned, provided such notice shall not be required to be in writing where impractical due to the large number of employees concerned and (2) the collective bargaining representative, if any, of each employee concerned.  Nothing herein shall require an agency to withhold from disclosure the contents of personnel or medical files and similar files when it does not reasonably believe that such disclosure would legally constitute an invasion of personal privacy.

 

(c) A public agency which has provided notice under subsection (b) of this section shall disclose the records requested unless it receives a written objection from the employee concerned or the employee’s collective bargaining representative, if any, within seven business days from the receipt by the employee or such collective bargaining representative of the notice or, if there is no evidence of receipt of written notice, not later than nine business days from the date the notice is actually mailed, sent, posted or otherwise given.  Each objection filed under this subsection shall be on a form prescribed by the public agency, which shall consist of a statement to be signed by the employee or the employee’s collective bargaining representative, under the penalties of false statement, that to the best of his knowledge, information and belief there is good ground to support it and that the objection is not interposed for delay.  Upon the filing of an objection as provided in this subsection, the agency shall not disclose the requested records unless ordered to do so by the freedom of information commission pursuant to section 1-21i.” … [Emphasis added.]

 

            15.  Disclosure constitutes an invasion of personal privacy under §1-19(b)(2), G.S., only when the information sought by a request does not petain to a legitimate matter of public concern and is highly offensive to a reasonable person.  Perkins v. Freedom of Information Commission, 228 Conn. 158 (1993).

Docket #FIC1995-324                                                                                    Page 4

 

 

            16.  It is found that applying the Perkins test set forth in paragraph 15, above, the respondent could not have reasonably believed that the disclosure of numerical payroll data would legally constitute an invasion of privacy.

 

            17.  In addition, it is found that the objection forms provided to the employees whose personnel records were the subject of the complainants’ requests did not contain a statement to be signed by the employee under the penalties of false statement, that to the best of his knowledge, information and belief there is good ground to support it and that the objection is not interposed for delay, as required by §1-20a(c), G.S.

 

            18.  It is therefore concluded that the respondent did not properly invoke the mandatory stay from disclosure until so ordered by this Commission, under  §1-20a(c), G.S.

 

            19.  It is further found that the respondent failed to prove that the requested records are exempt from disclosure under §1-19(b)(2), G.S.

 

            20.  It is therefore concluded that the respondent violated §1-19(a), G.S., by failing to promptly provide the complainants with access to inspect or copy all of the records containing the requested information.

 

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

 

            1.  The respondent shall immediately provide the complainants with access to inspect or copy all of the records containing the requested incentive, achievement and bonus award information for town management employees, from June 18, 1990 through September 25, 1995.

 

            2.  Henceforth, the respondent shall strictly comply with the requirements of §§1-19(a) and 1-20a(c), G.S.

 

 

 

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

 

__________________________

Doris V. Luetjen

Acting Clerk of the Commission

 

fic1995-324/fd/mwp/07311996

Docket # FIC 1995-324                                                                                              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:

 

John J. Woodcock, III

and Kathryn A. Hale

395 Buckland Rd.

P.O. Box 684

South Windsor, CT  06074

 

Dana Whitman, Jr.

Acting Town Manager of South Windsor

South Windsor Town Hall

1540 Sullivan Ave.

South Windsor, CT  06074

 

__________________________

Doris V. Luetjen

Acting Clerk of the Commission