FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
James M. Spellman, Jr.,
Complainant
against Docket #FIC 92-95
Superintendent, East Lyme Public Schools,
Respondent January 19, 1993
The above-captioned matter was heard as a contested case on September 10, 1992, at which time the complainant and the respondent appeared, stipulated to certain facts and 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. By letter dated March 14, 1992, the complainant requested from the respondent a copy of the retirement agreement between the East Lyme Public Schools and Howard Ward, and "all correspondence, statements, memorandums, minutes of meetings entering into, facilitating, impacting and in advisement to" such retirement agreement.
3. It is found that Mr. Ward served as a teacher for the East Lyme Public Schools for many years prior to his resignation on June 30, 1991.
4. Having failed to receive a timely response to his March 14, 1992 letter, the complainant appealed to the Commission by letter dated March 23, 1992 and filed March 25, 1992.
5. It is found that prior to the hearing on this matter, the respondent provided the complainant with minutes of the East Lyme Board of Education meetings at which Mr. Ward's resignation was considered.
Docket #FIC 92-95 Page 2
6. Following the hearing on this matter, the respondent submitted the subject records that have not been provided to the complainant for in camera inspection. They are as follows:
a. a cover letter dated May 15, 1991 from Mr.
Ward's attorney to the respondent along with
a two-page medical statement from Mr. Ward's
physician to the state teachers' retirement
board (in camera document #92-95-1);
b. a letter dated October 3, 1990 from Mr. Ward's
physician to an East Lyme teachers'
association representative (in camera document
#92-95-2); and
c. a document entitled "Separation Agreement and
General Release," dated and signed April 30 and
May 2, 1991 by Mr. Ward and the respondent,
respectively (in camera document #92-95-3).
7. Section 1-19(a), G.S., provides in relevant part:
"Except as otherwise provided by any federal law or
state statute, all records maintained or kept on file
by any public agency...shall be public records and
every person shall have the right to...receive a copy
of such records in accordance with the provisions of
section 1-15.
8. It is concluded that the requested records are public records within the meaning of 1-19(a), G.S.
9. The respondent maintains that the requested records are exempt from disclosure pursuant to 1-19(b)(2), G.S., which permits the nondisclosure of "personnel, medical and similar files the disclosure of which would constitute an invasion of personal privacy."
10. The respondent further maintains that he did not provide the complainant with the requested agreement because of a clause in the agreement requiring both parties to use their best efforts to maintain its confidentiality; and because he was aware of Mr. Ward's desire and expectation that the terms of the agreement remain confidential.
11. It is found that by letter to the respondent's counsel, dated September 9, 1992, Mr. Ward's counsel indicated that Mr. Ward objected to disclosure of the agreement.
Docket #FIC 92-95 Page 3
12. It is concluded that the requested records are "personnel, medical or similar files" within the meaning of 1-19(b)(2), G.S.
13. After a review of the documents described in paragraph 6, above, it is found that the two-page medical statement comprising part of in camera document #92-95-1 consists in its entirety of information detailing Mr. Ward's medical condition and that its disclosure would invade Mr. Ward's right to personal privacy within the meaning of 1-19(b)(2), G.S.
14. It is also found that line 1 of the first paragraph of in camera document #92-95-2, after the word "is" through line 2 before the word "unable" consists of medical information the disclosure of which would likewise invade Mr. Ward's right to personal privacy within the meaning of 1-19(b)(2), G.S.
15. It is also found that the cover letter of in camera document #92-95-1 contains the identity of Mr. Ward's physician and that in camera document #92-95-2 contains both the identity of Mr. Ward's physician and the physician's medical specialty; and that disclosure of such information would invade Mr. Ward's right to personal privacy within the meaning of 1-19(b)(2), G.S.
16. It is therefore concluded that the respondent did not violate the disclosure provisions of the Freedom of Information (hereinafter "FOI") Act by not disclosing those portions of in camera document #'s 92-95-1 and 92-95-2, described in paragraphs 13, 14 and 15, above, to the complainant.
17. It is found however, that the remaining portion of the cover letter comprising in camera document #92-95-1 and the remaining portions of in camera document #92-95-2 do not contain any personal, medical or other information that would prove embarrassing to a reasonable person or provide a basis for a reasonable expectation of privacy. Consequently, it is found that the disclosure of the specific portions of the documents referred to in this paragraph would not constitute an invasion of Mr. Ward's right to personal privacy within the meaning of 1-19(b)(2), G.S.
18. It is further found that the agreement comprising in camera document #92-95-3 describes the terms of Mr. Ward's resignation and refers generally to his illness, but does not contain any personal, medical or other information that would reasonably prove embarrassing to Mr. Ward or provide a basis for a reasonable expectation of privacy. Consequently, it is found that the disclosure of the document referred to in this
Docket #FIC 92-95 Page 4
paragraph would not constitute an invasion of Mr. Ward's right to personal privacy within the meaning of 1-19(b)(2), G.S.
19. It is further found that the parties' promise to use their best efforts to maintain the confidentiality of the agreement, in the absence of explicit legal authority for a public agency to offer such confidentiality, is contrary to public policy.
20. Finally, it is found that the promise of confidentiality described in paragraph 19, above, neither provides an exemption to the disclosure of public records under the FOI Act, nor does it establish in itself, the reasonableness of an expectation of privacy.
21. It is therefore concluded that the respondent violated the provisions of 1-15 and 1-19(a), G.S., by failing to provide the complainant with a copy of the portions of the records described in paragraph 17, above, and a copy of in camera document #92-95-3.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent shall forthwith provide the complainant with a copy of the cover letter portion of in camera document #92-95-1.
2. The respondent shall also forthwith provide the complainant with a copy of in camera document #92-95-2.
3. In complying with paragraphs 1 and 2 of the order, above, the respondent may redact any information that would identify Mr. Ward's physician or the physician's medical specialty and those portions of lines 1 and 2 of in camera document #92-95-2 described in paragraph 13 of the findings, above.
4. The respondent shall also forthwith provide the complainant with a copy of in camera document #92-95-3.
Approved by Order of the Freedom of Information Commission at its special meeting of January 15, 1993.
Debra L. Rembowski
Acting Clerk of the Commission
Docket #FIC 92-95 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:
James M. Spellman, Jr
c/o Atty. Matthew Shafner
O'Brien, Shafner, Bartinik
475 Bridge Street
Groton, CT 06340
Superintendent, East Lyme Public Schools
c/o Atty. Donald Strickland
Siegel, O'Conner, Schiff
370 Asylum Street
Hartford, CT 06103
Debra L. Rembowski
Acting Clerk of the Commission