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