FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        Final Decision

 

Michael J. Proto,

 

                                Complainant

 

                against                   Docket #FIC 95-295

 

Town of Hamden and Hamden Town Attorney,

 

                                Respondents                        June 26, 1996

 

                The above-captioned matter was heard as a contested case on February 14, 1996, at which time the complainant and the respondents appeared 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 respondents are public agencies within the meaning of 1-18a(a), G.S.

 

                2.             It is found that in March 1995, the complainant underwent a psychological evaluation and took a polygraph test as part of the application and selection process for the position of entry level police officer with the respondent town of Hamden ("town").

 

                3.             It is found that by letter dated April 24, 1995, the complainant requested that he be provided with all relevant information related to his application for hire, including, but not limited to, the written evaluations and conclusions of the polygraph examiner and psychologist ("April request").

 

                4.             It is found that by letter dated April 25, 1995, the respondent town attorney acknowledged receipt of the complainant's April request, informed him that the request was under review, and stated that he would be contacted by mail once a determination about disclosure of the requested records had been made.

 

                5.             It is found that by letter dated August 15, 1995, the complainant again requested that he be provided with "copies of, or access to the written evaluations of the polygraph examiner and psychologist" ("August request").

 

Docket #FIC 95-295                                             Page Two

 

                6.             By letter of complaint dated August 19, 1995, and filed with the Commission on August 23, 1995, the complainant appealed the respondents' failure to respond to, or comply with his August request.

 

                7.             It is found that by letter dated August 21, 1995, the respondent town attorney informed the complainant that the requested records were exempt from disclosure under 1-19(b)(4), G.S., because of the complainant's pending litigation with the town.

 

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

 

                9.             Section 1-19(b)(4), G.S., states in relevant part that disclosure shall not be required of:

 

                records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled; ...

 

                10.           It is found that at the time of the complainant's August request he had filed against the respondent town a complaint with the state's Commission on Human Rights and Opportunities ("CHRO complaint"), and a civil action ("lawsuit").

 

                11.           It is found that the respondents failed to prove that the requested records, which were created as part of the town's police officer selection process, pertain in any way to strategy and negotiation of either the CHRO complaint or lawsuit, within the meaning of 1-19(b)(4), G.S.

 

                12.           It is therefore concluded that the respondents failed to prove that the requested records are exempt from disclosure under 1-19(b)(4), G.S.

 

                13.           At the hearing on this matter the respondents for the first time argued that the requested records are exempt from disclosure pursuant to 1-19(b)(6), 1-19(b)(10) and 52-146(c), G.S.

 

                14.           Section 1-19(b)(6), G.S., provides that disclosure shall not be required of "test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examination."

 

Docket #FIC 95-295                                             Page Three

 

                15.           It is found that the evaluative records that the complainant is seeking contain opinions and conclusions about his fitness to be a police officer as determined by a psychologist and polygraph examiner.

 

                16.           It is found that the requested records were not used to administer an employment examination within the meaning of 1-19(b)(6), G.S., and therefore it is concluded that the respondents failed to prove that the subject records are exempt from disclosure under 1-19(b)(6), G.S.

 

                17.           Section 1-19(b)(10), G.S., in relevant part, provides that disclosure shall not be required of "records ... reports and statements exempted by federal law or state statute ...."

 

                18.           The respondents argue that the subject records are exempt from disclosure under 1-19(b)(10), G.S., by operation of 52-146c, G.S.

 

                19.           Section 52-146c(b), G.S., states in relevant part that communications between a psychologist and patient are privileged and a psychologist "shall not disclose any such communication unless the person or his authorized representative consents to waive the privilege and allow such disclosure...."

 

                20.           It is found that the complainant underwent psychological evaluation solely as a required part of the police officer selection process and not as a patient for purposes of consultation about a diagnosis or treatment within the meaning of 52-146c(1), G.S.

 

                21.           It is found, however, that even if the evaluations of the psychologist can be construed as "communications" within the meaning of 52-146c(3), G.S., the complainant has clearly indicated his intention and desire to have the evaluative records disclosed to him, thereby waiving any applicable privilege in accordance with 52-146c(b), G.S.

 

                22.           The respondents argue that the complainant waived his right to know his psychological test results.

 

                23.           It is found that on or about March 3, 1995, the complainant signed a "General Informed Consent and Legal Release" form that included a waiver of the "test results, interpretations made, and access to the original data from which judgments have been made" ("waiver").

 

Docket #FIC 95-295                                             Page Four

 

                24.           The complainant argues that he had to sign the waiver since continued eligibility in the selection process, and the police department's conditional offer of employment was wholly contingent upon his undergoing and completing psychological and polygraph examinations.

 

                25.           It is found that the mere existence of the waiver is insufficient to exempt the subject records from disclosure to the complainant under either 1-19(b)(10) or 52-146c(b), G.S.

 

                26.           It is found that the respondents failed to prove the applicability of 52-146c to the requested psychological records.

 

                27.           It is therefore concluded that the respondents failed to prove that the requested psychological records are exempt from disclosure under 1-19(b)(10), G.S. by operation of 52-146c, G.S.

 

                28.           It is found that the respondents have made no additional claim of exemption to disclosure of the requested  polygraph records.

 

                29.           It is concluded, therefore, that the respondents violated 1-15 and 1-19(a), G.S., by failing to promptly provide the complainant with a copy of his polygraph and psychological examination results.

 

                The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

                1.             Within seven days of the date of mailing of the notice of final decision in this case, the respondents shall provide the complainant with a copy of the requested records, as more fully described in paragraph 5 of the findings, above, free of charge, and furnish to the complainant an affidavit stating that the records provided constitute the only records responsive to his August request.

 

                2.             Henceforth, the respondents shall strictly comply with the public records requirements set forth in 1-15 and 1-19(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 26, 1996.

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission

 

Docket #FIC 95-295                                             Page five

 

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:

Michael Proto

254 Mill Road

North Haven, CT 06473

 

Town of Hamden and Hamden Town Attorney

c/o Susan Gruen, Esq.

2372 Whitney Avenue

Hamden, CT 06518

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission