FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Lyn Bixby & The Hartford Courant,
Complainants
against Docket #FIC 95-251
Commissioner, State of Connecticut,
Department of Correction,
Respondent July 10, 1996
The above-captioned matter was heard as a contested case on January 24, 1996, at which time the complainants and the respondent appeared.
Attorney Thomas J. Riley also appeared on behalf of Gail A. Egan and requested that Ms. Egan be made an intervenor in the case since the subject records were generated as a result of an administrative investigation into allegations about her conduct. The hearing officer granted Egan’s request for intervenor status.
The complainants, respondent and Ms. Egan 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. It is found that by letter dated April 26, 1995, and received by the respondent by facsimile transmission on that date, the complainants requested that they be provided with a copy of the fact-finding report resulting from a Department of Correction (“DOC”) investigation of Gail A. Egan ("investigation"), and an opportunity to review “any other paperwork generated in connection with the [investigation] since the issuance of the report”(“investigation records”).
3. It is found that by letter dated April 27, 1995, the respondent acknowledged receipt of the records request, and advised the complainants that the investigation report would be disclosed only after the investigation had been completed and the report was then completed and signed by the necessary parties.
4. It is found that by letter dated July 27, 1995, the respondent notified the complainants that the investigation report would not be disclosed to them because the subject of the record, Gail Egan, filed an objection pursuant to §1-20(a)(c), G.S. The complainants asked for, but the respondent refused to provide them with a copy of Egan’s objection.
5. By letter of complaint dated and filed with this Commission on July 27, 1995, the complainant appealed the respondent's denial of their records request, and alleged that the respondent refused to release “a report and other information concerning the investigation of an employee, Gail Egan.”
6. It is found that the requested report and investigation records are public records within the meaning of §§1-18a(d) and 1-19(a), G.S.
7. It is found that the subject of the requested records , Gail Egan, was then employed by the DOC as the manager of DOC’s Central Transportation Unit (“CTU”).
8. It is found that beginning in August 1994 the DOC’s Security Division and Affirmative Action Division concurrently conducted an administrative investigation into allegations about Egan’s activity and conduct in her capacity as CTU manager.
9. It is found that based upon the factual findings, conclusions and recommendations contained in the reports, and evidence and documentation obtained as a result of the investigations, Egan was dismissed from state service in July 1995.
10. It is also found that Egan’s dismissal was subsequently modified to a thirty (30) day working suspension with reinstatement and back pay effective September 1995.
11. It is found further that ultimately in October 1995 Egan was informed that the position of DOC CTU Manager had been eliminated and she was laid off from state service due to “agency reorganization”.
12. At the hearing on this matter the respondent and the intervenor argued that the investigation records, including the reports containing the findings and recommendations of the investigators, constitute Egan’s personnel records and are therefore exempt from disclosure under §1-19(b)(2), G.S.
13. The intervenor further claimed that the investigation records contain unfounded and unsubstantiated allegations, the disclosure of which would be offensive to a reasonable person.
14. The respondent and intervenor submitted the investigation records and all other documentation relating to DOC’s investigations to the Commission for in camera inspection pursuant to §1-21j-35(f) of the Commission's regulations.
15. The index to the records submitted for in camera inspection by the intervenor failed to cite any statutory basis for withholding disclosure of the requested investigation records. Given the intervenor’s presentation at the hearing on this matter, the Commission infers that the statutory citation for the claim of exemption would have been §1-19(b)(2), G.S.
16. Section 1-19(b)(2), G.S., permits the nondisclosure of “personnel or medical and similar files, the disclosure of which would constitute an invasion of personal privacy.”
17. Perkins v. FOIC, 228 Conn. 158
(1993), sets forth the standard for the exemption contained in §1-19(b)(2),
G.S. The claimant has a twofold burden
of proof:
First, [he] must establish that
the files in question are within the categories
of files protected by the exemption, that is, personnel,
medical or similar files. Second, [he] must show that disclosure of
the records would constitute an invasion of personal privacy. [Emphasis added.]
18. It is found that either the subject records have been made part of Egan’s personnel file, or are the functional equivalent of personnel file information in that the records were generated in connection with DOC’s administrative investigation, and subsequently relied on by DOC to terminate Egan from its employ.
19. It is concluded that the investigation records are “personnel” or “similar” files within the meaning of §1-19(b)(2), G.S.
20. The Court in Perkins further
instructs :
[The] invasion of personal
privacy exception of §1-19(b)(2)
precludes disclosure, therefore, only when the information
sought by a request does not pertain to legitimate matters of
public concern and is highly offensive to a reasonable person.
[Emphasis added.]
21. It is found that the respondent and intervenor failed to prove that the disclosure of the investigation records at issue in this case would be highly offensive to a reasonable person.
22. It is found, however, that even if disclosure of the subject records would be offensive to a reasonable person, documentation of a public employee’s misconduct, the actions or activity constituting such misconduct, and the discipline, if any, meted out, pertain to legitimate matters of public concern.
23. Further, the investigation records indicate that there was in fact sufficient evidence of corroboration of certain allegations and charges to warrant disciplinary action against Egan.
24. It is therefore concluded that disclosure of certain investigation records as set forth in the following paragraph would not constitute an invasion of Egan’s personal privacy within the meaning of §1-19(b)(2), G.S.
25. After conducting an in camera inspection of the investigation records at issue it is found that the following investigation records are nonexempt public records subject to the disclosure provisions of §§1-15 and 1-19(a), G.S. In camera (“IC”) documents identified and submitted by the parties as follows:
(1) Respondent’s
“Book 1:SD 94-31”: disclose the following IC documents:
(a) December 19, 1994 memorandum from Lori Krajniak, Investigating
Captain, to Brian K. Murphy, Director of Security Re: SD 94-31 (47 pages);
(b) December 15, 1994 memorandum from Joseph
Civitello, Affirmative Action Officer, to Maria Houser, Human Resources, Re:
Affirmative Action Grievance (5 pages);
(c ) February 22, 1995 letter from Daniel P. Callahan, Principal
Personnel Officer, to Attorney Thomas Riley (4 pages);
(d) January 30, 1995 memorandum from Gail Egan
to Joseph Cambria, Director, Offender Classification & Population
Management Sub-Division (2 pages);
(e) January 31, 1995 memorandum from Joseph Cambria to Jack Tokarz,
Deputy Commissioner Programs and Treatment Division (“PTD”), DOC, Re: Gail Egan
(1 page);
(f) Fax Transmittal dated January 31, 1995 from Joseph Civitello to
George Wezner, Acting Deputy Commissioner PTD (3 pages, including cover sheet);
(g) January 12, 1995 memorandum from Joseph Cambria, to George
Wezner, Re: Gail Egan Investigation (1 page);
(h) Fax Transmittal dated January 19, 1995 from Joseph Civitello to
George Wezner (6 pages, including cover sheet);
(i) February 28, 1995 letter from Daniel Callahan to Thomas Riley (2
pages);
(j) May 2, 1995 memorandum from Dan Callahan to John Tokarz Re: Gail
Egan Loudermill (3 pages);
(2) Respondent’s IC documents
numbered: 12, 13, 15 through 18, 20 through 22, 25 through 40, 42 through
58, and 60 through 89;
(3) Intervenor’s IC documents numbered: Exhibit 11( June 7, 1995 memorandum from Joseph Cambria to Gail Egan); Exhibit 12 (June 16, 1995 letter from Thomas Riley to John Armstrong, Commissioner of DOC); Exhibit 13 (June 27, 1995 letter from Francis Teta, Assistant Director, Inmate Classification, to Thomas Riley); Exhibit 16 (July 26, 1995 letter from Maria Houser, Correctional Personnel director, to Thomas Riley); Exhibit 18 (January 3, 1996 letter from Captain Michael J. Donahue, Office of the DOC Commissioner, to Gail Egan); Exhibit 22 (May 31, 1995 letter from Thomas Riley to Daniel Callahan, DOC Principal Personnel Officer).
26. The Commission infers, and it is found that the IC records submitted by the intervenor and found to be nonexempt public records in this case, should be among the Egan investigation records in the custody and control of the respondent.
27. It is concluded that the respondent's failure to provide the complainant with copies of the nonexempt investigation records--including those nonexempt records submitted by the intervenor--violated the provisions of §§1-15 and 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. Within seven (7) days of the date of mailing of the notice of final decision in this case, the respondent shall provide the complainant with a copy of the requested investigation records—including a copy of each of the nonexempt IC documents submitted to the Commission by the intervenor-- as more fully identified in paragraph 25(1) through (3) of the findings, above, free of charge, and furnish to the complainant an affidavit stating that the records provided constitute true and accurate copies of the in camera documents submitted to the Commission.
2. In complying with paragraph 1 of the order, above, the respondent may redact the names and identifying information of persons other than Egan appearing in the documents to be disclosed to the complainants.
3. Henceforth, the respondent 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 July 10, 1996.
Elizabeth A. Leifert
Acting Clerk of the Commission
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:
Lyn Bixby and The Hartford Courant
285 Broad Street
Hartford, CT 06115
Commissioner, State of Connecticut,. Department of Correction
c/o Henri Alexandre, Esq.
Madeline A. Melchionne, Esq.
Assistant Attorneys General
110 Sherman Street
Hartford, CT 06105
Thomas J. Riley, Esq.
Tobin, Levin, Carberry & O’Malley, P.C.
43 Broad Street
P.O. Box 58
New London, CT 06320-0058
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC1995-251/FD/0710/1996