FD1988-377

FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Margaret Harris,

Complainant

against Docket #FIC 88-377

Commissioner Elliot A. Ginsberg of the State of Connecticut Department of Human Resources, and State of Connecticut Department of Human Resources,

Respondents August 23, 1989

The above-captioned matter was heard as a contested case on October 31, 1988, at which time the complainant, respondents and intervenor appeared and presented evidence and argument on the complaint. The matter was then continued so that the respondents could prepare a Vaughn Index of the requested records. On February 3, 1989, the hearing reconvened and again the complainant, respondents and intervenor appeared. At that time the respondents presented further evidence on the complaint. Thereafter, the matter was continued to May 5, 1989, at which time the complainant, respondents and intervenor again appeared and presented evidence, testimony and argument on the complaint.

Rita Spaulding was made an intervenor, herein, by order of the hearing officer on October 31, 1988.

After consideration of the entire record, the following facts are found:

1. The respondents are public agencies within the meaning of §1-18a(a), G.S.

2. By complaint received September 14, 1988, the complainant alleged she was denied access to a copy of the day care file of Rita Spaulding which she requested on August 28, 1988.

3. At hearing some of the requested records were provided to the complainant, but it is found that the respondents failed to provide the complainant with a significant portion of the day care file of Rita Spaulding.

Docket #FIC 88-377 page 2

4. The respondents claim that the records not disclosed by them are exempt under §1-19(b)(2), G.S., because disclosure would constitute an invasion of the privacy of Spaulding and others.

5. It is found that the requested records are similar to a personnel or medical file within the meaning of §1-19(b)(2), G.S.

6. The respondents offered the file for in camera inspection.

7. The hearing officer declined to do an in camera inspection on the ground that the Vaughn Index of the records, the testimony concerning the Index, and the exhibits offered by the respondents provided a sufficient basis for her to determine whether the records requested were exempt from disclosure pursuant to §1-19(b)(2), G.S.

8. It is found that the file contains l21 separate documents relating to the day care license and other matters concerning Rita Spaulding for the years 1980 through 1988.

9. It is found that the requested records fall into the following categories:

(a) records required for application, modification, and renewal of the day care license,

(b) correspondence between the respondents and Spaulding,

(d) records generated by complaints concerning the quality of day care provided by Spaulding,

(e) records pertaining to administrative proceedings affecting the day care license of Spaulding,

(f) records from the Spaulding file which were disclosed in an administrative hearing and records which became part of the record in a federal court case in which Spaulding was a party,

and

(g) correspondence with the governor's office in response to complaints made to the governor's office by Spaulding concerning activities and procedures of the respondents.

Docket #FIC 88-377 page 3

A. Records required for application, modification, and

renewal of the child day care license

10. It is found that the following 44 records were required by the respondents for application and renewal of Spaulding's day care license:

(a) the application and reapplications for a family day care license, (Vaughn Index items 80-2, 82-4, 82-10, 84-2, 84-6, 84-9, 85-5, and 87-5);

(b) records of lead paint collection and analysis, (Vaughn Index item 82-7);

(c) doctor's notes, letters and forms concerning the provider and persons in the provider's household, (Vaughn Index items 80-1, 80-6, 80-7, 82-1, 82-2, 82-3, 83-2, 84-12);

(d) safety check lists (Vaughn Index items 80-9, 82-8, 83-4, 84-3, 84-8, 85-10, 86-15;

(e) water analyses, (Vaughn Index items 84-1, 82-6);

(f) records pertaining to state police checks and protective service clearances (Vaughn Index items 84-10, 84-11, and 84-13);

(g) home care study reports and home visit reports (Vaughn Index 80-8, 82-9, 83-3, 84-4, 84-7, 85-9, 86-14, 87-4);

(h) letters of reference and records pertaining to letters of reference (Vaughn Index 80-5, 82-5, 82-6, 80-3, 80-4);

(i) latch key request (Vaughn Index 88-1);

(j) licensing renewal check list (Vaughn Index 85-6, 86-13);

and

(k) request for change in capacity (Vaughn Index 86-2).

11. It is found that the records listed at paragraph 10 contain information about Rita Spaulding's personal history and family which pertains to her qualifications to provide day care; information about the condition of Spaulding's home -- its safety, its paint and its water supply; the contents of state police checks and protective services clearances of household members; observations of Spaulding's activities by social workers; letters of reference, and doctors' statements concerning Spaulding, members of the household, and her assistants.

Docket #FIC 88-377 page 4

12. It is found that because of the importance of child care to the society as a whole, the public has a legitimate interest in the qualifications of Rita Spaulding to provide day care, and in the conditions in her home which are relevant to the safety and well-being of children.

13. It is found that Spaulding, the licensee and provider of day care, has waived her privacy rights with respect to information about her personal qualifications to provide day care, and the conditions in her home which are relevant to the safety and well-being of the children in her home.

14. It is concluded that those portions of the requested records which contain information about Spaulding's personal qualifications to provide day care, and the conditions in her home which are relevant to the safety and well-being of the children in her home are not exempt from disclosure pursuant to §1-19(b)(2), G.S.

15. It is found, however, that Spaulding has not waived her privacy rights in certain specific items of information in her records which are not directly relevant to her qualifications to provide day care and to the safety and well-being of children in her home. These are:

(a) her social security number, and

(b) detailed medical information concerning her health.

16. It is found that the public does not have a legitimate interest in Spaulding's social security number and in detailed medical information concerning her health.

17. It is concluded, therefore, that Spaulding's social security number and detailed medical information concerning her health are exempt from disclosure pursuant to §1-19(b)(2), G.S.

18. It is found, however, that the public does have a legitimate interest which outweighs Spaulding's privacy interest in any conclusions of a medical doctor about her fitness to be a day care provider such as the doctor's statement set forth in exhibit 21.

19. It is concluded, therefore, that any doctor's statements or reports which are general conclusions concerning Spaulding's health and fitness as a day care provider, are not exempt from disclosure pursuant to §1-19(b)(2), G.S.

20. It is found that the children of Rita Spaulding, the children for whom she provides day care, the parents of those children, and any third parties mentioned in the records described at paragraph ten have privacy rights in certain items of information contained in the records. These items include:

Docket #FIC 88-377 page 5

(a) their names, addresses and phone numbers,and the day and month of their birth, (but not the year of birth).

(b) their detailed medical information.

21. It is found that the public has no legitimate interest in the items described at paragraph 20(a), (b), and (c).

22. It is concluded that the items described at paragraph 20(a), (b) and (c) are exempt from disclosure pursuant to §1-19(b)(2), G.S.

23. It is found that the husband of Rita Spaulding and any other assistants or helpers of Rita Spaulding have waived privacy rights which pertain to information about their personal qualifications to provide day care.

24. It is found that the husband of Rita Spaulding, and any other assistants or helpers of Rita Spaulding, have privacy rights with respect to the following items:

(a) their social security numbers, and

(b) their detailed medical information.

25. It is found, however, for the same reasons stated at paragraphs 16 and 17, that general statements concerning the health or medical conditions of Spaulding's husband, members of her household, and any of her assistants or helpers, are not exempt pursuant to §1-19(b)(2), G.S.

26. It is found that pursuant to the findings and legal conclusions set forth at paragraphs 15 through 17, and 20 through 25, limited portions of the records described at paragraph 10 are exempt pursuant to §1-19(b)(2), G.S.

27. It is concluded that, with the exception of the items found exempt above, the remainder of the records described at paragraph 10 are subject to disclosure pursuant to §1-19(a), G.S.

B. Correspondence between the respondent department and Spaulding

28. It is found that the Vaughn Index lists 7 items as correspondence between the respondent department and Spaulding (Vaughn Index items 82-8, 84-5, 84-15, 85-4, 85-19, 87-6, and 87-7).

Docket #FIC 88-377 page 6

29. It is found that the correspondence listed at paragraph 28 includes a notification that certain safety violations must be corrected, reminders to submit medical statements, a notice to Spaulding regarding payment of her registration fee, a discussion of a home visit by a social worker, and a letter expressing Spaulding's concern with the medical form requirements.

30. It is found that the public has a legitimate interest in the correspondence between the respondent department and Spaulding because it provides insight into the relationship between the two parties, and because it provides a more complete understanding of the Spaulding file.

31. It is found that Spaulding has no privacy interest in this correspondence because it is administrative in nature, and because she has waived certain privacy rights by obtaining a day care license, as stated above at paragraph 13.

32. It is found that the children and the parents of children under Spaulding's care retain a privacy interest in their identities, as well as their names and addresses.

33. It is found because the public has no legitimate interest in the names, addresses, and identities of the children and the parents of children under Spaulding's care that such identifying references, if any, in the correspondence discussed above at paragraph 27 and 28 are exempt from disclosure pursuant to §1-19(b)(2), G.S.

34. It is concluded that with the exception of items found exempt at paragraph 33, the remainder of the correspondence between the respondent department and Spaulding is subject to disclosure pursuant to §1-19(a), G.S.

C. Correspondence and memos concerning Spaulding

35. It is found that the Vaughn Index lists 5 items which are correspondence and memos concerning Spaulding which are not related to specific complaints or administrative and legal proceedings. (Vaughn Index items 83-1, 84-14, 86-1, 88-10, and 88-24).

36. It is found that the correspondence listed at paragraph 35 includes a reference form to the Connecticut department of health to describe Spaulding's experience in child care, requests from a child placement agency for a copy of Spaulding's home study and references, a narrative of a phone call from Spaulding concerning a change in her household composition, a narrative of a phone call from Spaulding concerning the legality of departmental regulations and home inspections, and a reminder notation in the case file.

Docket #FIC 88-377 page 7

37. It is found for the reasons stated at paragraphs 32 and 33 above, that any material in the records which would disclose the names, addresses, or identities of the children and the parents of children under Spaulding's care is exempt from disclosure pursuant to §1-19(b)(2), G.S.

38. It is concluded that with the exception of the records described at paragraph 37, the remainder of the correspondence and memos which are listed above at paragraph 35 are subject to disclosure pursuant to §1-19(b)(2), G.S.

D. Records generated by complaints or questions concerning the quality of Spaulding's day care

39. It is found that the Vaughn Index lists 26 records which were generated by complaints or questions concerning the quality of day care provided by Spaulding which have not been publicly disclosed (Vaughn Index items 85-3, 85-4, 85-11, 85-12, 85-13, 85-14, 85-15, 85-16, 85-17, 85-18, 86-3, 86-4, 86-5,86-6, 86-7, 86-8, 86-9, 86-10, 86-11, 86-12, 86-16, 86-17, 87-1, 88-11, 88-26, and 88-27).

40. It is found that the records listed at paragraph 39 include records of phone calls, complaint work sheets which record complaints, documentation and memos concerning the investigation of complaints (usually a home visit), letters to Spaulding concerning follow-up visits and correspondence from Spaulding concerning complaints, intradepartmental memos concerning complaints, letters to Spaulding from parents of a day care child, and letters from Spaulding to parents of a day care child.

41. It is found that some of the records listed and described at paragraphs 39 and 40 contain the names, addresses, or other identifying material concerning complainants, day care children, parents of day care children, and third parties other than Spaulding, her assistants or household members.

42. It is found that the public has no legitimate interest in the names, addresses, or other other identifying material concerning complainants, day care children, parents of day care children, and third parties other than Spaulding, her assistants or household members.

43. It is found that complainants, day care children, parents of day care children, and third parties other than Spaulding, her assistants, or household members do have privacy interests in their names, addresses, or other identifying material in the records generated by complaints or questions concerning the quality of Spaulding's day care.

Docket #FIC 88-377 page 8

44. It is concluded that the names, addresses, or other identifying material with respect to complainants, day care children, parents of day care children, and third parties other than Spaulding, her assistants, or household members are exempt from disclosure pursuant to §1-19(b)(2), G.S.

45. It is concluded that except for the material which is found to be exempt from disclosure at paragraph 44, the remainder of the records described at paragraphs 39 and 40, above, are subject to disclosure pursuant to §1-19(a), G.S.

E. Records pertaining to administrative proceedings affecting the day care license of Rita Spaulding

46. It is found that the Vaughn Index lists 7 records which pertain to administrative proceedings affecting the day care license of Rita Spaulding (Vaughn Index items 88-25, 88-31, 88-33, 88-34, 88-35, 88-36, and 88-37).

47. It is found that the records listed at paragraph 46 include a letter from the respondent department to Spaulding confirming the date of a compliance conference, a cover memo sent from a departmental worker to the respondent Ginsberg pertaining to a compliance meeting, a notification from the respondent department for the date of the hearing on the proposed suspension of Spaulding's day care license, a case record entry regarding notification of parents of day care children regarding the license suspension proceedings, records of a phone call with Spaulding regarding the proceedings, and a memo with a letter attached concerning the request of the attorney representing Spaulding for a hearing.

48. It is found that for the reasons stated at paragraphs 42 and 43, any identifying information which pertains to day care children, or their parents which may be contained in the records described at paragraphs 46 and 47, are exempt from disclosure under §1-19(b)(2), G.S.

49. It is concluded that except for the material which is found exempt at at paragraph 48, the remainder of the records described at paragraphs 46 and 47 are subject to disclosure pursuant to §1-19(a), G.S.

F. Records which were made part of the record in Spaulding's administrative hearing and in the federal court case in which Spaulding was a party.

50. It is found that there are 29 records in the Spaulding file which became part of the record in an administrative hearing concerning the day care license of Spaulding or which

Docket #FIC 88-377 page 9

became part of the record in a federal court case in which Spaulding was a party (Vaughn Index items 87-2, 87-3, 88-2, 88-3, 88-5, 88-6, 88-7, 88-8, 88-9, 88-12, 88-13, 88-14, 88-15, 88-16, 88-17, 88-18, 88-19(c), 88-19(d), 88-21, 88-22, 88-23, 88-28, 88-29, 88-30, 88-32, 85-2, 85-7, 85-8, and 85-14).

51. It is found that the respondents failed to prove that the records designated at paragraph 50 were sealed by the court or otherwise exempted from public disclosure in the administrative proceeding concerning Spaulding's day care license.

52. It is concluded that the records designated at paragraph 50 are public records subject to disclosure pursuant to §1-19(a), G.S., because they have been disclosed in public judicial or administrative proceedings.

G. Correspondence with the governor's office in response to complaints made to the governor's office by Spaulding concerning activities and procedures of the respondents.

53. It is found that the three letters in the file pertain to complaints made to the governor's office by Spaulding concerning activities and procedures of the respondents (Vaughn Index items 88-19(A), 88-19(B) and 88-20).

54. It is found that the three letters are a letter to the governor from Spaulding which suggests that the respondent department generates complaints against her in order to curtail her political activities, a letter to the governor from Spaulding on behalf of the vice-president of the child care association which questions the authority of the respondent department to enforce the day care registration program, and a letter from the governor to Spaulding stating that a response from the respondent commissioner will be sent to her.

55. It is found that, by writing to the governor concerning her problems, Spaulding has waived any privacy interests she may have with respect to the subject matter of her letter.

56. It is found that the public has a legitimate interest in the problems described by Spaulding in her letter to the governor because they pertain to the state system established to regulate day care.

57. It is concluded that the correspondence with the governor's office which is described at paragraphs 53 and 54 is not exempt from disclosure pursuant to §1-19(b)(2), G.S.

Docket #FIC 88-377 page 10

58. It is concluded that the records described at paragraph 53 and 54 are public records subject to disclosure pursuant to §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. The respondents shall forthwith provide the complainant with copies of the requested records described herein at paragraph 2.

2. The respondents may mask or redact the portions of the requested records which have been found to be exempt from disclosure herein at paragraphs 17, 22, 33, 37, 44, and 48.

PURSUANT TO 4-180(c) C.G.S THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE F.O.I.C., OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

THE PARTIES TO THIS CONTESTED CASE ARE:

MARGARET HARRIS

13 Deer Run Road

Clinton, CT 06413

COMMISSIONER ELLIOT A. GINSBERG OF THE STATE OF CONNECTICUT,

DEPARTMENT OF HUMAN RESURCES AND STATE OF CONNECTICUT,

DEPARTMENT OF HUMAN RESOURCES

c/o Sharon A. Scully, Esquire

Assistant Attorney General

55 Elm Street, 4th Floor

Hartford, CT 06106

Approved by order of the Freedom of Information Commission at its regular meeting of August 23, 1989.

Tina C. Frappier

Acting Clerk of the Commission