FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
George W. Saba
Complainant
against Docket #FIC 94-22
State of Connecticut, Division of Criminal Justice
Respondent April 27, 1994
The above-captioned matter was heard as a contested case on April 5, 1994, 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., with respect to its administrative functions.
2. By letter dated July 7, 1993, the complainant notified the Chief State's Attorney that the complainant would be making requests for disclosure of employment-related records concerning him. In that letter, the complainant also requested that the Chief State's Attorney take whatever steps were necessary to secure the records he would be requesting.
3. By letter dated December 28, 1993, the complainant requested of the Chief State's Attorney copies of records concerning the complainant which are "contained within the files of your agency," including certain specified documents. In his December 28, 1993 letter, the complainant also sought answers to certain inquiries.
4. Having failed to receive a response to his December 28, 1993 request, by letter dated January 28, 1994, and received by the Commission by fax transmission on January 27, 1994, the complainant appealed to the Commission from the denial of his request.
Docket #FIC 94-22 Page 2
5. Because the Freedom of Information ("FOI") Act does not require a public agency to either provide answers to questions or to create records in response to a request, the Commission lacks jurisdiction to treat those portions of the complainant's request that seek answers to questions or that would require the respondent to create records for the complainant.
6. With respect to the complainant's records request, the respondent claims that (a) certain of the records are exempt from disclosure under 1-19c, G.S., because they are part of a criminal investigation of the complainant, (b) the records do not exist or are not maintained by the office of the Chief State's Attorney in Wallingford, and (c) the complainant's request is more appropriately addressed under the state's Personal Data Act, Chapter 55, G.S.
7. It is found that the criminal investigation records of the respondent are not subject to the disclosure requirements of the FOI Act.
8. Consequently, it is concluded that the respondent did not violate the FOI Act by failing to provide the complainant with copies of those records requested by the complainant which are part of a criminal investigation.
9. It is also found that the respondent cannot provide access to records which do not exist and need not provide access to public records that are not maintained by the respondent.
10. Under 51-278 and 51-279, G.S., the Chief State's Attorney is the administrative head of the respondent and therefore has overall responsibility over the records of the respondent division.
11. The Commission recognizes that the State's Attorneys for the respective judicial districts also have responsibility over individual records within their jurisdictions apart from that conferred on the Chief State's Attorney.
12. It is found that certain of the requested records may be maintained by the office of the State's Attorney for the Judicial District of Tolland and that the Chief State's Attorney may not have authority over such records.
13. However, in light of the complainant's July 7, 1993 letter requesting that the Chief State's Attorney take the necessary steps to secure the records he would be requesting and the known possibility that such records may be in the custody or possession of another State's Attorney, it is found that the office of the Chief State's Attorney was remiss in not forwarding the relevant portions of the complainant's request to the office of the appropriate State's Attorney.
Docket #FIC 94-22 Page 3
14. Section 1-19b(a), G.S., provides in relevant part that the FOI Act shall be "construed as requiring each public agency to disclose information in its personnel files . . . to the individual who is the subject of such information."
15. Thus, notwithstanding a person's rights under the state Personal Data Act, the FOI Act requires a public agency to disclose requested information in a personnel file to the subject of that information.
16. It is found that the portions of the complainant's request for certain employment-related records can reasonably be construed as a request for his personnel records, which records are maintained at the office of the Chief State's Attorney in Wallingford.
17. Consequently, it is concluded that the respondent violated 1-15(a), 1-19(a) and 1-19b(a), G.S., by failing to provide the complainant with timely access to his requested employment-related and other records maintained by the respondent and which are not otherwise exempt from disclosure, as set forth above.
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 copies of those employment-related and other records, maintained in the custody or possession of the Chief State's Attorney, which were requested by the complainant in his December 28, 1993 letter and which are not criminal investigation records.
Approved by Order of the Freedom of Information Commission at its regular meeting of April 27, 1994.
Elizabeth A. Leifert
Acting Clerk of the Commission
Docket #FIC 94-22 Page 4
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:
Mr. George W. Saba
80 Krivanec Road
Willington, CT 06279
State of Connecticut, Division of Criminal Justice
c/o John F. Cronan, Esq.
Executive Assistant State's Attorney
340 Quinnipiac Street
P.O. Box 5000
Wallingford, CT 06492
Elizabeth A. Leifert
Acting Clerk of the Commission