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