FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        Final Decision

 

Kelvin Moore,

 

                        Complainant

 

            against              Docket #FIC 92-83

 

Connecticut Alcohol and Drug Abuse Commission and Agency Personnel Administrator, Connecticut Alcohol and Drug Abuse Commission,

 

                        Respondents                 February 10, 1993

 

            The above-captioned matter was heard as a contested case on April 24 and May 1, 1992, at which times the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

 

            At the April 24, 1991 hearing on this matter, Charlene McBroom and Noemi Reyes were granted party status pursuant to 1-21i(b), G.S.

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

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

 

            2.  By letter dated March 11, 1992, the complainant requested from the personnel director of Blue Hills Hospital access to examine and copy:

 

            a.   the personnel files of police officers Charlene

                        McBroom and Noemi Reyes ("McBroom" and "Reyes"

                        respectively); and

 

            b.   information regarding other complaints of sexual

                        harassment filed by either McBroom or Reyes, along

                        with subsequent investigations and findings of their

                        employers.

 

Docket #92-83                                    Page 2

 

            3.  By letter dated March 16, 1992, the respondent personnel administrator acknowledged the complainant's request for access to the records described in paragraph 2, above, and indicated that she would inform him shortly concerning the disposition of his records request.

 

            4.  By letter dated March 30, 1992 the respondent administrator informed the complainant that McBroom and Reyes objected to disclosure of their personnel files and that the respondents were therefore denying his request.

 

            5.  By letter of complaint dated and filed April 1, 1992, the complainant appealed to the Commission alleging that the respondents denied access to the requested records, in violation of the Freedom of Information ("FOI") Act.

 

            6.  It is found that the respondents did not provide the complainant with access to any of the requested records.

 

            7.  It is also found that the complainant was dismissed from his position as police officer at Blue Hills Hospital following an internal investigation conducted by the respondent Connecticut Alcohol and Drug Abuse Commission (hereinafter "CADAC") concerning allegations of sexual harassment made by McBroom and Reyes.

 

            8.  The respondents have submitted for in camera inspection the personnel files of McBroom and Reyes and the records of a 1989 internal investigation conducted by CADAC in response to an earlier sexual harassment complaint filed by one of the two female officers.

 

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

 

            10.  The respondents maintain that the requested records are exempt from disclosure pursuant to 1-19(b)(2), G.S, which permits the nondisclosure of "personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy."

 

            11.  It is found that in camera document #s 92-83-1 through 92-83-8 are personnel file records within the meaning of 1-19(b)(2), G.S.

 

            12.  It is also found that McBroom's and Reyes' personnel files contain three categories of documents:

 

Docket #FIC 92-83                             Page 3

 

            a.   requests for personnel action (in camera document

                        #s 92-83-1 and 92-83-5);

 

            b.   personnel evaluations (in camera document #s 92-83-2

                        and 92-83-6); and

 

            c.  new employee information files (in camera document

                        #s 92-83-3 and 92-83-8);

 

            13.  It is also found that Reyes' personnel file contains a file identified as:  "interdepartmental messages, memoranda and notes" (in camera document #s 92-83-4).

 

            14.  It is also found that McBroom's personnel file contains a file entitled:  "medical information" (in camera document #92-83-7).

 

            15.  It is also found that the complainant is not seeking access to any medical information, social security numbers, addresses, attendance records, previous job descriptions or the educational background of either McBroom or Reyes.

 

            16.  It is also found that in camera document #92-83-7 in its entirety contains medical information pertaining to McBroom and that disclosure of such information would invade McBroom's right to personal privacy within the meaning of 1-19(b)(2), G.S.

 

            17.  It is also found that in camera document #s 92-83-1 and 92-83-5, in part, contain the subject's social security number, and medical information describing either work-related injuries or medical conditions and it is concluded that the disclosure of such information would violate the subjects' right to personal privacy within the meaning of 1-19(b)(2), G.S.

 

            18.  It is also found that the remaining portions of in camera document #s 92-83-1 and 92-83-5 pertain to promotional requests or salary increases and do not reveal information the disclosure of which would be embarassing to a reasonable person or of which there would be a reasonable expectation of privacy, and it is concluded therefore that such information is subject to disclosure pursuant to 1-19(a), G.S.

 

            19.  Pursuant to Chairman v. Freedom of Information Commission, 217 Conn. 193 (1990), the personnel evaluations contained in in camera document #s 92-83-2 and 92-83-6 are exempt from disclosure under 1-19(b)(2), G.S.

 

Docket #FIC 92-83                             Page 4

 

            20.  It is found that both in camera document #s 92-83-3 and 92-83-8 contain records entitled "new employee information sheet," and that such records contain personal information identifying persons to be notified in the event of an emergency and that such information is exempt from disclosure pursuant to 1-19(b)(2), G.S.

 

            21.  It is also found that in camera document # 92-83-8 contains information pertaining to the subject's insurance coverage along with tax or tax-related information and that such information is likewise exempt from disclosure pursuant to 1-19(b)(2), G.S.

 

            22.  It is further found, however, that the remaining records and portions of records comprising in camera document #s 92-83-3 and 92-83-8, other than references to social security numbers, do not contain any information the disclosure of which would be embarassing to a reasonable person or of which there would be a reasonable expectation of privacy, and consequently, such information is subject to disclosure pursuant to 1-19(a), G.S.

 

            23.  It is therefore concluded that the respondent violated 1-19(a), G.S., by failing to provide the complainant with access to the aforementioned documents contained in in camera document #s 92-83-3 and 92-83-8, excluding the subjects' social security numbers.

 

            24.  It is also found that in camera document #92-83-4 contains numerous records pertaining to the subject's life insurance and insurance plans, and that such information is exempt from disclosure pursuant to 1-19(b)(2), G.S.

 

            25.  It is concluded however, that the remaining portions of in camera document #92-83-4 do not contain any information the disclosure of which would be embarrassing to a reasonable person or of which there would be a reasonable expectation of privacy, and it is concluded therefore that such information is subject to disclosure pursuant to 1-19(a), G.S.

 

            26.  It is found that in camera document #s 92-83-9 through 92-83-15, inclusive, are the records submitted by the respondents as those that are responsive to the complainant's request as described in paragraph 2b., above.

 

            27.  It is found that in January 1989, one of the two

subject officers filed a sexual harassment complaint with CADAC against a CADAC employee, other than the complainant (hereinafter "1989 complaint"), which complaint was the subject of an internal investigation by the respondent CADAC.

 

Docket #FIC 92-83                             Page 5

 

            28.  It is also found that in September 1989, following the respondent CADAC's investigation of the 1989 complaint, the complaining officer filed a separate complaint against the respondent CADAC with the Commission on Human Rights and Opportunities (hereinafter "CHRO").

 

            29.  It is also found that the respondent CADAC's 1989 internal investigation records contain the following documents or categories of documents:

 

            a.   CADAC's investigative report (in camera document

                        #92-83-9);

 

            b.   CHRO communications (in camera document #92-83-10);

 

            c.   a written statement submitted by a third party on

                        behalf of the complaining officer (in camera

                        document #92-83-11);

 

            d.   CADAC's policy statement concerning sexual

                        harassment (in camera document #92-83-12);

 

            e.   interdepartmental messages pertaining to

                        CADAC's internal investigation (in camera

                        document #92-83-13);

 

            f.   correspondence from CADAC's internal investigator

                        (in camera document #92-83-14); and

 

            g.   notes of CADAC's internal investigator (in camera

                        document #92-83-15).

 

            30.  It is also found that the records contained in in camera document #s 92-83-10 and 92-83-12 are not responsive to the complainant's request and therefore not a subject of his complaint.

 

            31.  The respondents maintain that CADAC's internal investigation files are similar files within the meaning of 1-19(b)(2), G.S., and that disclosure would constitute an invasion of the personal privacy of the complaining officer as well as the personal privacy of third parties who assisted in the investigation of the complaint.

 

            32.  It is found that the respondents failed to prove that the requested internal investigation files are "similar" files, and it is concluded that the records are not exempt from disclosure pursuant to 1-19(b)(2), G.S.

 

Docket #92-83                                    Page 6

 

            33.  The respondents further maintain that the requested internal investigation records are exempt from disclosure pursuant to 46a-68 and 46a-83(b), G.S.

 

            34.  Section 46a-68(a), G.S., requires every state agency to develop and implement, in cooperation with CHRO, an affirmative action plan that commits the agency to a program of affirmative action in all aspects of personnel and administration.

 

            35.  It is found that 46a-68, G.S., does not govern disclosure of the respondent CADAC's internal investigation records.

 

            36.  Section 46a-83(b), G.S., provides:

 

            "No [CHRO] commissioner or investigator may disclose

            what has occurred in the course of [investigations of

            discriminatory practice complaints] provided the

            commission may publish the facts in the case and any

            complaint which has been dismissed and the terms of

            conciliation when a complaint has been adjusted."

 

            37.  It is found that the respondents' statutory reference to 46a-83(b), G.S., applies to the confidentiality of information concerning discriminatory practice complaints filed with CHRO and does not prohibit the respondent CADAC from disclosing records pertaining to its internal investigations of sexual harassment complaints.

 

            38.  It is concluded therefore that the provisions of 46a-68 and 46a-83(b), G.S., do not operate to exempt from disclosure the subject internal investigation records.

 

            39.  It is further concluded that in the absence of an applicable federal law or state statute that provides an exemption to disclosure of the requested internal investigation records described in paragraph 29a., c., f. and g., above, such records are subject to disclosure pursuant to 1-15 and 1-19(a), G.S.

 

            40.  It is further found that the statement comprising in camera document #92-83-11 contains in its entirety a very sensitive, descriptive and detailed account of events by a third party; and that in camera document #92-83-15 contains detailed and sensitive notes of the respondent CADAC's investigator.  The Commission in its discretion, declines to order disclosure of the information contained in in camera document #s 92-83-11 and 92-83-15.

 

Docket #FIC 92-83                             Page 7

 

            41.  It is also found that in camera document #92-83-13 documents the progression of the respondent CADAC's investigation of the 1989 complaint.

 

            42.  It is also found however, that intermingled throughout in camera document #92-83-13 are numerous references to third parties who either voluntarily assisted with the investigation or whose assistance was requested by the respondent CADAC.

 

            43.  It is also found that redaction of the information that would disclose the identities of third persons would render disclosure of the remaining portions incomprehensible.  Therefore the Commission declines to order disclosure of the records contained in in camera document #92-83-13.

 

            44.  It is found that the investigative report comprising in camera document #92-83-9 contains:  a statement of the issue, descriptions of the investigator's discussions with witnesses, a summation and the investigator's recommendation.

 

            45.  It is also found however, that in camera document #92-83-9 contains the names and identifying information of third parties either with knowledge of, or who were witness to the alleged sexual harassment.

 

            46.  It is also found that among the records comprising in camera document #92-14 are:  a memorandum dated June 15, 1989 and a letter dated June 22, 1989, both of which were to the individual who provided the statement comprising in camera document #92-83-11 from the respondent CADAC's affirmative action officer; and a letter dated May 4, 1989 to a witness from the respondent CADAC's affirmative action officer.

 

            47.  It is further found that disclosure of those records described in paragraphs 45 and 46, above, which identify the names of third parties and/or witnesses, or that reveal personally identifiable information might subject those individuals to embarrassment or ridicule. Therefore the Commission declines to order the disclosure of such information.

 

            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 a copy of the portions of the in camera records described in paragraphs 18, 22 and 25, of the findings, above.

 

Docket #FIC 92-83                             Page 8

 

            2.  With respect to the respondent CADAC's internal investigation records, the respondents shall forthwith provide the complainant with a copy of in camera document #s 92-83-9 and 92-83-14.

 

            3.  In complying with paragraph 2 of this order, the respondent may redact those portions of the records that reveal the names of third parties and/or witnesses and any personally identifiable information concerning them.

 

            4.  In complying with paragraphs 1 and 2 of this order, the respondents may redact any references to social security numbers and any information not sought by the complainant, as described in paragraph 15, above.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 10, 1993.

 

                                                                 

                                    Mitchell W. Pearlman

                                    Acting Clerk of the Commission

 

Docket #FIC 92-83                             Page 9

 

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:

 

Kelvin Moore

c/o Atty. Peter J. Ponziani

Danaher, Tedford, Lagnese & Neal, P.C.

21 Oak Street

Hartford, CT 06106

 

Connecticut Alcohol and Drug Abuse Commission and Personnel Administrator, Connecticut Alcohol and Drug Abuse Commission

c/o Asst. Atty. Gen. Kenneth H. Kennedy

P.O. Box 120

Hartford, CT 06141-0120

 

Noemi Reyes and Charlene McBroom

c/o Att. Kenneth I. Friedman

Beck & Eldergill, P.C.

447 Center Street

Manchester, CT 06040

 

                                                                 

                                    Mitchell W. Pearlman

                                    Acting Clerk of the Commission