FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF
CONNECTICUT
In the Matter of a Complaint by Final Decision
Christopher Hoffman and the
New Haven Register,
Complainants
against Docket #FIC 95-361
James J. McGrath, Chief of Police,
Ansonia Police Department and
Eugene K. Baron, Brian Phipps, and
Howard Tinney as members of the
Ansonia Board of Police Commissioners,
Respondents September 25, 1996
The above-captioned matter was heard as a contested case on March 26, 1996, at which time the complainants and 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 June 1995, the respondents conducted a
search for a full-time patrol officer (“patrolman position”), and a test was
given to all applicants. The test
administered to the applicants had a psychological component as required by §7-294e-16(j)
of the Regulations of Connecticut State Agencies.
3.
It is found that by letter dated September 11, 1995 the
complainant requested access to the list of all patrol officer candidates
(“candidates”) recommended to Ansonia’s mayor (“mayor”) in June 1995, and those
candidates’ psychological fitness examination (“evaluation”) results.
4.
It is found that three candidates, identified at the hearing
on this matter as Officers: Adcox, Falcioni, and Gilson, were recommended to
the mayor in September, not June, 1995.
5.
It is found that the mayor recommended Officer Gilson for the
patrolman position and Officers Adcox and Falcioni remain on an eligibility
list for such positions as they become available.
6.
It is further found that Gilson has been working as a
full-time police officer since October 1995.
7.
It is found that pursuant to §1-20a(b),
G.S., by letter dated September 12, 1995, the respondent chief of police
(“chief”), notified each of the three candidates of the complainants’ request
to inspect his evaluation results, and advised each candidate of his right to file a written objection to such
disclosure within seven days of the date of the letter, if he did not want his
evaluation results disclosed.
8.
It is found that by written objection to the respondents dated
September 13, 1995, Officers Adcox and Gilson registered their objection to
disclosure of their evaluation results, and alleged that disclosure would
constitute an invasion of their privacy.
9.
It is found that Officer Falcioni did not file an objection to
disclosure of his evaluation results.
10.
It is found that shortly after receiving the objections from
Adcox and Gilson, the complainants were referred to the respondents’ counsel
who informed them that they were not going to be permitted to inspect the
evaluations of any of the three
candidates, nor would they be provided with a list of the candidates’ names.
11.
By letter of complaint dated October 10, 1995, and filed with
the Commission on October 12, 1995, the complainants alleged that the
respondents violated the Freedom of Information Act by refusing to disclose the
requested evaluation results.
12.
The complainants requested the imposition of civil penalties
against the respondents.
13.
It is found that the requested records are public records
within the meaning of §§1-18a(d) and
1-19(a), G. S.
14.
It is found that the evaluation results at issue are contained
in the psychological screening report (“report”) prepared for each of the three
candidates.
15.
The respondents submitted the reports to the Commission for in
camera inspection.
16.
The reports submitted for in camera inspection
have been designated IC95-361-1
through IC95-361-10.
17.
It is found that the reports submitted for in camera
inspection consist of the evaluation results of the candidates as follows:
Gilson, IC95-361-1 through IC95-361-3; Falcioni, IC95-361-4 through IC95-361-7;
and Adcox, IC95-361-8 through IC 95-361-10.
18.
At the hearing the respondents argued that the reports are
exempt from disclosure pursuant to §§1-19(b)(2)
and 52-146c(b), G.S.
19.
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.
20.
The respondents maintain that the reports are “similar files”
and therefore exempt from disclosure pursuant to §1-19(b)(2),
G.S.
21.
It is found that the reports contain information that is
required by the Municipal Police Training Council as a condition of appointment to a position of probationary candidate
in a law enforcement unit in Connecticut, and which describes each
candidates’ overall psychological fitness and stability.
22.
Specifically, it is found that each of the reports is divided
into five major categories for assessment, including a “law enforcement
assessment” category that is also subdivided into five categories.
23.
It is found that the reports are the functional equivalent of
personnel file information in that the respondents, in part, relied on the
reports to determine which candidates would be recommended and selected for the
position.
24.
It is concluded that the reports constitute similar files
within the meaning of §1-19(b)(2), G.S.
25.
The respondents argue that the candidates had a reasonable
expectation of privacy in the contents of their reports in accordance with Chairman
v. FOIC, 217 Conn. 193 (1990).
26.
The respondents claim that the candidates have not seen their
reports, and the reports are kept in a locked file cabinet in the chief’s
office with access limited to them, the mayor and certain other police
officials.
27.
It is found that the respondents failed to establish that the
candidates received assurances that their reports would be confidential, or
otherwise prove that the candidates had a reasonable expectation of privacy in
their reports under §1-19(b)(2), G.S.
28.
The subjects of the reports did not appear at the hearing on
this matter.
29.
Perkins sets forth the standard for the exemption
contained in §1-19(b)(2),
G.S., and the Court in Perkins instructs:
[T]he invasion of personal privacy
exception of §1-19(b)(2)
precludes disclosure 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.]
30.
It is found that documentation of a candidate’s mental and
emotional stability, and psychological fitness—or instability and unfitness—to
be a police officer is a matter of legitimate public concern.
31.
It is found further that the respondents failed to prove that
disclosure of the reports would be highly offensive to a reasonable person.
32.
It is therefore concluded that the respondents failed to prove
that the reports are exempt from disclosure under §1-19(b)(2),
G.S.
33.
The respondents further argue that §52-146c(b),
G.S., provides for the nondisclosure of the reports as privileged
communications between a psychologist and patient.
34.
Section 52-146c(b), G.S., refers to a patient as a “person”
who “consults a psychologist for purposes of diagnosis or treatment.”
35.
It is found that the candidates underwent psychological
testing and evaluation solely as a
mandatory part of the candidate selection process and not as patients for purposes of consultation about
diagnosis or treatment within the meaning of §52-146c(b),
G.S. The candidates were required to submit to psychological
screening pursuant to §7-294e-16(j) of the
Regulations of Connecticut State Agencies.
36.
It is found that the reports at issue did not result from
consultation or communications within
the meaning of §52-146c(b), G.S., because
the Ansonia Police Department (“department”), referred the candidates for
psychological screening, and the reports were prepared for use by the
department, respondents, and mayor in their candidate selection process, and
not for purposes of diagnosis or treatment by a psychologist as contemplated by
§52-146c(b),
G.S.
37.
It is found that the respondents failed to prove the
applicability of §52-146c(b), G.S., to the
requested reports.
38.
It is therefore concluded that the respondents failed to prove
that the reports are exempt from disclosure under §1-19(a),
G.S., by operation of §52-146c(b), G.S.
39.
It is concluded, therefore, that the respondents violated §§1-15(a)
and 1-19(a), G.S., by failing to promptly provide the complainants with a copy
of the Law Enforcement Assessment and
Summary portions of each report. The Law Enforcement Assessment section of
each report includes the following sub-categories: Dimension 1: Emotional
Adjustment; Dimension 2: Integrity/Control; Dimension 3: Intellectual Efficiency;
Dimension 4: Interpersonal Relations; and Performance Indicators.
40.
It is concluded that the respondents violated the provisions
of §§1-15(a),
1-19(a), and 1-20a(c), G.S., by failing to promptly provide the complainants
with a copy of Falcioni’s entire report since he did not file a written
objection to its disclosure.
41.
The Commission declines to issue a civil penalty as requested
by the complainants.
The following order by the Commission is hereby recommended on the basis of the
record concerning the above-captioned complaint:
1.
Within five days of the date of mailing of the notice
of final decision in this case, the respondents shall provide the complainants
with a copy of the reports, or portions thereof, identified in paragraphs 39
and 40 of the findings, above, free of
charge.
Henceforth the respondents shall strictly comply with the
public records requirements set forth in §§1-15(a)
and 1-19(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular
meeting of September 25, 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:
Christopher Hoffman
The New Haven Register
Valley Bureau
P.O. Box 277
Ansonia, CT 06401
James J. McGrath, Chief of Police, Ansonia Police Department and Eugene K. Baron, Brian Phipps, and Howard Tinney as members of the Ansonia Board of Police Commissioners,
c/o Kimberly A. Mango
Shipman & Goodwin
One American Row
Hartford, CT 06103-2819
__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission