FREEDOM OF INFORMATION
COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by Final Decision
Valerie Finholm and The
Hartford Courant,
Complainants
against Docket
#FIC 95-252
Commissioner, State of
Connecticut, Department of Children and Families,
Respondent May 22, 1996
The above-captioned matter was heard as a contested
case on January 23, 1996, at which time the complainants and the respondent
appeared, stipulated to certain facts and presented testimony, exhibits and
argument on the complaint. A.F.S.C.M.E.
Local #2663, the collective bargaining representative for four of the
Department of Children and Families (hereinafter "DCF") employees
whose records are the subject of the complainants' request, was made a party to
these proceedings at its request.
At the May 22, 1996 Commission meeting during which
the Commission considered this matter, an unnamed administrator whose records
are also the subject of the complainants' request, was granted intervenor
status upon submission in camera of the administrator's name, by an attorney
representing the administrator.
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. During a
telephone conversation and by letter sent via facsimile transmission on July
21, 1995, the complainants requested that the respondent provide them with
"the names and records of DCF workers disciplined in the case involving
the death of Emily Hernandez."
3. By letter
dated July 28, 1995, the respondent denied the complainants' request because
she believed that "there [were] extraordinary reasons to protect the
safety of DCF employees and their families from endangerment that may result
from publishing their names."
4. By letter
dated and filed July 28, 1995, the complainants appealed to the Commission
alleging that the respondent violated the Freedom of Information
("FOI") Act by denying their request.
#FIC 95-252 Page
2
5. It is
found that on March 13, 1995, Emily Hernandez, a nine month old child
(hereinafter "child") whose family had recently been investigated by
DCF, died as a result of child abuse.
6. It is
found that on March 14, 1995, the Governor established an independent panel to
review the child's case referred to in paragraph 7, above, and determine
whether her death could have been prevented.
7. It is
found that the independent panel referred to in paragraph 8, above, found that
DCF failed to adequately protect the child, and DCF's internal review of the
panel's report resulted in the discipline of five DCF employees.
8. It is
found that the names and disciplinary information sought by the complainants as
described in paragraph 2, above, is contained in personnel records maintained
by the respondent's department, which records are public records within the
meaning of 1-18a(d) and 1-19(a), G.S. (hereinafter "requested
records").
9. The
respondent claims that she refused to disclose the requested records in order
to protect the safety of the employees whose records are at issue, because the
child's family is known to be violent.
10. It is
found that no known threats have been made to the DCF employees whose records
are at issue.
11. It is
concluded that a speculative generalized concern for the safety of DCF
employees whose records are at issue does not provide an exemption to the
disclosure requirements of the FOI Act.
12. At the
hearing on this matter, the respondent also claimed that the requested records
are exempt from disclosure pursuant to 1-19(b)(2), G.S.
13. It is
found, however, that although the respondent claimed that 1-19(b)(2),
G.S., is applicable to the subject records, she failed to notify the subject
employees of the complainant's records request in accordance with the notice
provisions set forth in 1-20a(b) and (c), G.S.
#FIC 95-252 Page
3
14. Section
1-19(b)(2), G.S., provides that:
"Nothing in [the FOI Act] shall be construed to
require the disclosure of ... (2) personnel or medical and similar files the
disclosure of which would constitute an invasion of personal privacy."
15.
Disclosure constitutes an invasion of personal privacy under
1-19(b)(2), G.S., only when the information sought by a request does not
pertain to a legitimate matter of public concern and is highly offensive to a
reasonable person. Perkins v. Freedom
of Information Commission, 228 Conn. 158 (1993).
16. It is
found that the identities of, and the disciplinary action taken against certain
public employees for their failure to protect a child who had recently been
referred to DCF, is a legitimate matter of public concern.
17.
Consequently, it is not necessary for the Commission to consider whether
disclosure of the requested records would be highly offensive to a reasonable
person.
18. It is
concluded that the requested records are not exempt from disclosure pursuant to
1-19(b)(2), G.S.
19. The
respondent further maintains that even if the requested records are not exempt
from disclosure under 1-19(b)(2), G.S., portions of them may be exempt
pursuant to 17a-28(b), G.S.
20. Section
17a-28(b), G.S., provides:
"Notwithstanding the provisions of section 1-19,
1-19a or 1-19b, records maintained by the department [of children and families]
shall be confidential and shall not be disclosed."
21. Section
17a-28(a)(5), G.S., defines "records" for purposes of 17a-28(b),
G.S., as:
[I]nformation created or obtained in connection with
the department's child protection activities or activities related to a child
while in the care or custody of the department, including information in the
registry of reports to be maintained by the commissioner pursuant to subsection
(g) of 17a-101, provided records which are not created by the department are
not subject to disclosure, except as provided pursuant to subsection (c), (i),
or (k) of this section."
#FIC 95-252 Page
4
22. It is
found, and the respondent conceded at the hearing on this matter, that DCF's
personnel records are not within the category of records protected from
disclosure by 17a-28(b), G.S., as defined in 17a-28(a)(5), G.S.
23. It is
further found, however, that certain portions of the requested records may
contain information created or obtained in connection with DCF's child
protection activities, and that such portions are not subject to disclosure
under the FOI Act pursuant to 17a-28(b), G.S.
24. It is
concluded that by failing to provide the complainants with prompt access to
inspect or copy the requested records, with the exception of those portions
containing information created or obtained in connection with DCF's child
protection activities, the respondent violated 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
respondent shall forthwith provide the complainants with access to inspect or
copy the requested records of the DCF employees disciplined in connection with
the death of Emily Hernandez.
2. In
complying with paragraph 1 of the order, above, the respondent may redact any
portion of the requested records containing information created or obtained in
connection with DCF's child protection activities, in accordance with
17a-28(b), G.S.
3.
Henceforth, the respondent shall strictly comply with the requirements
of 1-19(a), G.S.
4. The
Commission notes that the independent panel charged with investigating the
death of the child found that "the confidentiality statutes for DCF and
the agencies with which it interacts are barriers to the effective protection
of children."
The Commission agrees with
that finding and continues to urge the legislature to review the broad grants
of confidentiality afforded to DCF with respect to its records of child
protection activities.
Approved by Order of the
Freedom of Information Commission at its regular meeting of May 22, 1996.
Elizabeth A. Leifert
Acting Clerk of the
Commission
Docket #FIC 95-252 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:
Valerie Finholm and The
Hartford Courant
285 Broad Street
Hartford, CT 06115
Commissioner, State of
Connecticut, Department of Children and Families
c/o Michael J. Besso, Esq.
Assistant Attorney General
110 Sherman Street
Hartford, CT 06105
Jason W. Cohen, Esq.
Gagne & Associates
1260 Silas Deane Highway
Wethersfield, CT 06109
Susanne D. McNamera, Esq.
19 Bassett Street
New Britain, CT 06051
Elizabeth A. Leifert
Acting Clerk of the
Commission