Freedom
of Information Commission
of
the State of Connecticut
In the Matter of a Complaint by Final
Decision
John J. Woodcock, III and Kathryn A. Hale,
Complainants
against Docket
#FIC 1995-324
Dana Whitman, Jr., Acting Town Manager,
Town of South Windsor,
Respondent July
24, 1996
The
above-captioned matter was heard as a contested case on February 29, 1996, at
which time the complainants and the respondent appeared, stipulated to certain
facts and presented testimony, exhibits and argument on the complaint. The case was consolidated with Docket #FIC
95-343, John J. Woodcock, III v. Town Manager, Town of South Windsor,
for purposes of hearing.
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 on July 14, 1995, her last
day of work, former town manager Jean E. Zurbrigen granted $10,250 in incentive
awards to 14 management-level town employees.
3. By letters dated August 25, September 12 and
September 25, 1995, the complainants, who are members of the South Windsor Town
Council, requested that the respondent provide them with records containing
information on “all incentive awards, achievement awards and/or bonuses that
have been received by Town of South Windsor (hereinafter “the town”) management
personnel since June 18, 1990.”
Docket #FIC1995-324 Page
2
4. By letter of appeal dated and filed on
October 2, 1995, the complainants appealed to the Commission alleging that the
respondent violated the Freedom of Information (“FOI”) Act by failing to comply
with their requests. In their letter of
appeal, the complainants also requested the imposition of civil penalties
against the respondent, which request was withdrawn at the hearing on this
matter.
5. It is found that the requested information
is contained in employee personnel files maintained by the respondent, as well
as payroll records maintained by the town finance department.
6. It is found that the records containing the
requested information are public records within the meaning of §§1-18a(d) and 1-19(a), G.S.
7. It is found that on September 13, 1995, the
respondent provided complainant Woodcock with a list of town management
employees, their position titles, and the amount of any incentive awards
received by them in 1995.
8. It is found that on September 19, 1995, the
respondent advised all town management personnel of the complainants’ requests
in a staff meeting with management employees.
9. By letter dated September 27, 1995, the
respondent informed the complainants’ that he had received objections to
disclosure from 26 management employees; that six employees did not object and
four others had not yet responded. The
respondent further indicated that he could provide the complainants with a
partial list, although he would prefer not to.
10. It is found that on October 2, 1995, the
respondent notified the management employees in writing of the complainants’
renewed September 25, 1995 records request, with attached blank forms to be
completed and resubmitted to the respondent, indicating either consent or
objection to disclosure of the requested records.
11. By letter dated October 11, 1995, the respondent
provided the complainants with salary and incentive payment information from
1990-91 through 1994-95 for the ten employees who did not object to disclosure
of the requested records.
12. The respondent claims that in the instances
where town employees filed objections to disclosure of the requested records,
the records are: 1) exempt from
disclosure pursuant to §1-19(b)(2), G.S.; and
alternatively, 2) exempt from disclosure until so ordered by this Commission
pursuant to §§1-20(b) and (c), G.S.
Docket #FIC1995-324 Page
3
13. Section 1-19(b)(2), G.S., permits the
nondisclosure of “personnel, medical or similar files, the disclosure of which
would constitute an invasion of personal privacy.”
14. Sections 1-20a(b) and (c), G.S., set forth a
notification procedure to be followed by a public agency when it reasonably
believes that a request for an employee’s personnel, medical or similar file
constitutes an invasion of personal privacy:
“(b) Whenever a public
agency receives a request to inspect or copy records contained in any of its
employees personnel or medical files and similar files and the agency
reasonably believes that the disclosure of such records would legally
constitute an invasion of privacy, the agency shall immediately notify in
writing (1) each employee concerned, provided such notice shall not be required
to be in writing where impractical due to the large number of employees
concerned and (2) the collective bargaining representative, if any, of each
employee concerned. Nothing herein
shall require an agency to withhold from disclosure the contents of personnel
or medical files and similar files when it does not reasonably believe that
such disclosure would legally constitute an invasion of personal privacy.
(c) A public agency which
has provided notice under subsection (b) of this section shall disclose the
records requested unless it receives a written objection from the employee
concerned or the employee’s collective bargaining representative, if any, within
seven business days from the receipt by the employee or such collective
bargaining representative of the notice or, if there is no evidence of receipt
of written notice, not later than nine business days from the date the notice
is actually mailed, sent, posted or otherwise given. Each objection filed under this subsection shall be on a form
prescribed by the public agency, which shall consist of a statement to be
signed by the employee or the employee’s collective bargaining representative,
under the penalties of false statement, that to the best of his knowledge,
information and belief there is good ground to support it and that the
objection is not interposed for delay.
Upon the filing of an objection as provided in this subsection,
the agency shall not disclose the requested records unless ordered to do so by
the freedom of information commission pursuant to section 1-21i.” … [Emphasis
added.]
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 petain 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).
Docket #FIC1995-324 Page
4
16.
It is found that applying the Perkins test set forth in paragraph
15, above, the respondent could not have reasonably believed that the
disclosure of numerical payroll data would legally constitute an invasion of
privacy.
17. In addition, it is found that the objection
forms provided to the employees whose personnel records were the subject of the
complainants’ requests did not contain a statement to be signed by the employee
under the penalties of false statement, that to the best of his knowledge,
information and belief there is good ground to support it and that the
objection is not interposed for delay, as required by §1-20a(c), G.S.
18. It is therefore concluded that the
respondent did not properly invoke the mandatory stay from disclosure until so
ordered by this Commission, under §1-20a(c), G.S.
19. It is further found that the respondent
failed to prove that the requested records are exempt from disclosure under §1-19(b)(2), G.S.
20. It is therefore concluded that the
respondent violated §1-19(a), G.S., by failing to
promptly provide the complainants with access to inspect or copy all of the
records containing the requested information.
The
following order by the Commission is hereby recommended on the basis of the
record concerning the above-captioned complaint:
1.
The respondent shall immediately
provide the complainants with access to inspect or copy all of the records
containing the requested incentive, achievement and bonus award information for
town management employees, from June 18, 1990 through September 25, 1995.
2. Henceforth, the respondent shall strictly
comply with the requirements of §§1-19(a) and 1-20a(c), G.S.
Approved
by Order of the Freedom of Information Commission at its regular meeting of
July 24, 1996.
__________________________
Doris
V. Luetjen
Acting Clerk of the Commission
fic1995-324/fd/mwp/07311996
Docket
# FIC 1995-324 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:
John
J. Woodcock, III
and
Kathryn A. Hale
395
Buckland Rd.
P.O.
Box 684
South
Windsor, CT 06074
Dana
Whitman, Jr.
Acting
Town Manager of South Windsor
South
Windsor Town Hall
1540
Sullivan Ave.
South
Windsor, CT 06074
__________________________
Doris
V. Luetjen
Acting Clerk of the Commission