Freedom of Information Commission

of the State of Connecticut

 

 

In the Matter of a Complaint by                                    Final Decision

 

John J. Woodcock, III,

 

                        Complainant

 

            against                                                              Docket #FIC 1995-343

 

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 complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The case was consolidated with Docket #FIC 95-324, John J. Woodcock, III, and Kathryn A. Hale v. Dana Whitman, Jr., Acting 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.  By letter dated October 24, 1995, the complainant requested that the respondent provide him with information concerning compensation provided to managerial employees of the Town of South Windsor (hereinafter “the town”) in excess of their base salary; specifically “bonuses, incentive awards, merit increases, and any other payments … in excess of council approved salary scales over the past five years.”

 

            3.  By letter dated October 26, 1995, the respondent provided the complainant with the requested information for some employees, and denied the balance of the complainant’s request, citing objections to disclosure filed by the employees whose records are at issue in response to a similar request by the complainant one month prior.

 

 

 

 

 

 

Docket #FIC 1995-343                                                                                   Page 2

 

 

            4.  By letter dated November 9 and filed November 24, 1995, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to provide him with the records containing the requested information.

 

            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 the respondent failed to notify the subject employees of the complainant’s October 24, 1995 request, because similar requests were made by the complainant in August and September 1995, and employees were notified and provided with an opportunity to object to disclosure at that time.

 

            8.  The Commission takes administrative notice of the record and exhibits in contested case docket #FIC 95-324, John J. Woodcock, III, and Kathryn A. Hale v. Dana Whitman, Jr., Acting Town Manager, Town of South Windsor.

 

            9.  It is found that the August, September and October requests were substantially similar, allowing the respondent to rely on previously solicited objection forms.

 

            10.  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.

 

            11.  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.”

 

 

 

 

 

 

 

 

 

 

 

Docket #FIC 1995-343                                                                                   Page 3

 

 

            12.  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 field 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.]

 

            13.  Disclosure constitutes an invasion of personal privacy under §1-19(b)(2), G.S., only when the information sought by a request does not pertain 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).

 

            14.  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.

 

Docket #FIC 1995-343                                                                                   Page 4

 

 

            15.  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.

 

            16.  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.

 

            17.  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.

 

            18.  It is therefore concluded that the respondent violated §1-19(a), G.S., by failing to 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 any records containing information about compensation provided to managerial employees of the Town of South Windsor (hereinafter “the town”) in excess of their base salary; specifically, bonuses, incentive awards, merit increases, and any other payments in excess of council approved salary scales over the past five years.

 

            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

 

 

fic1995-343/fd/mwp/07311996

Docket #FIC 1995-343                                                                                   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

P.O. Box 684

South Windsor, CT 06074

 

Town Manager

Town of South Windsor

1540 Sullivan Ave.

South Windsor, CT 06074-2786

 

 

 

__________________________

Doris V. Luetjen

Acting Clerk of the Commission