FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Final Decision

Lyn Bixby and The Hartford Courant,

Complainants

against Docket #FIC1995-358

State of Connecticut, Department of
Administrative Services,

Respondent September 25, 1996

The above-captioned matter was heard as a contested case on May 1, 1996, at which time the complainants and the respondent appeared, 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 respondent is a public agency within the meaning of §1-18a(a), G.S.

2. It is found that by letter dated September 26, 1995, the complainants requested “access to paperwork relating to Gail A. Egan’s appeal of her dismissal from the state’s Department of Correction.”

3. The Commission takes administrative notice of the pleadings, record, hearing officer’s report, final decision and case file in Docket #FIC95-251, Lyn Bixby and the Hartford Courant v. Commissioner, State of Connecticut, Department of Correction (“DOC”).

4. It is found that Gail Egan was employed by DOC as the manager of its Central Transportation Unit (“CTU”) from approximately January 1993 through September 1995.

5. It is found that in August 1994 the DOC’s Security Division and Affirmative Action Division concurrently conducted an administrative investigation into allegations about Egan’s activity and conduct in her position as CTU manager (“investigation”).

6. It is found that as a result of the evidence, factual findings, conclusions reached, and recommendations contained in the investigation reports, Egan was dismissed from state service in July 1995.

7. It is found that Egan filed an appeal of her dismissal from DOC that eventually resulted in a grievance proceeding and review by the State of Connecticut’s Office of Labor Relations (“OLR”), which is part of the respondent Department of Administrative Services.

8. It is found that in its decision the OLR set aside Egan’s dismissal and imposed a thirty (30) day working suspension with reinstatement and back pay, effective September 1995. Ultimately, in October 1995 Egan was informed that the position of DOC CTU Manager had been eliminated and she was laid off from state service due to “agency reorganization”.

9. It is found that Egan was notified of the complainants’ records request, and by letter to the OLR dated September 27, 1995, objected to the “release of any information relating to the investigation and charges against [her, as well as] all records pertaining to the hearings before the [OLR].”

10. It is found that by facsimile transmission to the complainants on or about October 2, 1995, the respondent furnished them with a copy of Egan’s objection to their records request.

11. It is also found that during an October 2, 1995 telephone conversation, the respondent orally advised complainant Bixby that the records request was denied.

12. By letter of complaint dated October 5, 1995, and filed with this Commission on October 12, 1995, the complainants appealed the respondent's denial of their records request, and alleged that the records should be disclosed because “the investigation and dismissal of, Ms. Egan, a high-ranking [DOC employee is] a matter of legitimate and important public interest.”

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

14. Gail Egan appeared at the hearing on this matter (“hearing”).

15. At the hearing the respondent and Ms. Egan argued that the requested records are exempt from disclosure under §1-19(b)(2), G.S.

16. Specifically, the respondent and Egan both claimed that disclosure of the requested records would serve no legitimate public interest, and be highly offensive to a reasonable person.

17. The respondent further claimed that disclosure of the records would have a chilling effect on potential grievants in an employment dispute.

18. The respondent submitted the requested records to the Commission for in camera inspection pursuant to §1-21j-35(f) of the Commission's regulations.

19. The index to the records submitted for in camera inspection by the respondent cited §1-19(b), G.S., as the statutory basis for withholding disclosure of the requested records. Given the respondent’s and Ms. Egan’s arguments at the hearing, the Commission infers that the statutory reference on the index should have been §1-19(b)(2), G.S.

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

21. Perkins v. FOIC, 228 Conn. 158 (1993), sets forth the standard for the exemption contained in §1-19(b)(2), G.S. The claimant has a twofold burden of proof:

First, [he] 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, [he] must show that disclosure of

the records would constitute an invasion of personal privacy. [Emphasis added.]

22. It is found that either the subject records have been made part of Egan’s personnel file, or the records are the functional equivalent of personnel file information in that they were generated in connection with DOC’s administrative investigation, and subsequently relied on by both DOC and the respondent---the former to terminate Egan from its employ, and the latter to review and evaluate DOC’s adverse employment decision with respect to Egan.

23. It is concluded that the requested records are “personnel” or “similar” files within the meaning of §1-19(b)(2), G.S.

24. The Court in Perkins further instructs :

[The] 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.]

25. It is found that the respondent failed to prove that the disclosure of the requested records in this case would be highly offensive to a reasonable person.

26. It is found, however, that even if disclosure of the subject records would be offensive to a reasonable person, documentation pertaining to a public employee’s misconduct, the actions or activity constituting such misconduct, and the correctness of any discipline, if any, meted out, pertain to legitimate matters of public concern.

27. It is therefore concluded that disclosure of the requested records as set forth in the following paragraph would not constitute an invasion of Egan’s personal privacy within the meaning of §1-19(b)(2), G.S.

28. After conducting an in camera inspection of the records at issue in this case, in camera (“IC”) documents IC95-358-1 through IC95-358-29, it is found that IC95-358-1 through IC95-358-29 are nonexempt public records subject to the disclosure provisions of §§1-15 and 1-19(a), G.S.

29. Regarding the respondent’s claim that disclosure of the requested records would have a chilling effect on potential grievants in a labor dispute, it is found that the respondent failed to prove his claim.

30. However, it is found that even if the respondent had demonstrated that disclosure of the records in this case would have a chilling effect on potential grievants in employment matters, such proof is still insufficient to establish an exemption to disclosure under Connecticut’s Freedom of Information Act.

31. It is concluded, therefore, that the respondent's failure to provide the complainant with access to the nonexempt subject records violated the provisions of §§1-15(a) and 1-19(a), G.S.

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

1. Within seven (7) days of the date of mailing of the notice of final decision in this case, the respondent shall provide the complainants with access to, and copies of the requested records as more fully identified in paragraph 28 of the findings, above, free of charge, and furnish to the complainant an affidavit stating that the records provided constitute true and accurate copies of the in camera documents IC95-358-1 through IC95-358-29 submitted to the Commission.

2. In complying with paragraph 1 of the order, above, the respondent may redact the names and identifying information of persons other than Egan appearing in the documents to be disclosed to the complainants.

3. Henceforth, the respondent shall strictly comply with the public records requirements set forth in §1-19(a), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of September 25,1996.

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission

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:

Lyn Bixby

The Hartford Courant

285 Broad Street

Hartford, CT 06115

State of Connecticut, Department of Administrative Services,

c/o Sharon A. Scully, Esq.

55 Elm Street

P.O. Box 120

Hartford, CT 06106

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission