FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on December 9, 1996, at which time the complainant and the respondent appeared, and presented testimony, exhibits and argument on the complaint. At the hearing the complainant requested that Commissioner Berman recuse herself as the hearing officer in this case. This request was denied.

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. By letter to the respondent dated March 11, 1996, the complainant asked to review and copy all records, including computer-stored data, pertaining to the James R. Tyler file #122743.

3. It is found that sometime between March 29, 1996 and April 8, 1996, the fiscal administrative officer for the Workers Compensation Commission’s First District Office ("FDO") telephoned the complainant to reassure him that there would be compliance with his records request, but not without some delay due to the fact that the requested records had to be retrieved from the archives, and because the FDO was in the process of having its offices renovated.

4. By letter of complaint dated April 9, 1996 and filed with the Commission on April 10, 1996, the complainant alleged that the respondent failed to comply with his records request, and he requested the imposition of a civil penalty against the respondent.

5. At the hearing on this matter, the respondent moved to dismiss the complaint claiming that the complainant was harassing the Commission and the respondent. For the reasons set forth below, the motion to dismiss is denied.

6. It is found that by letter to the complainant dated April 11, 1996, the complainant was advised by the FDO that he could review the requested records during the next week, but that with respect to the requested computer-stored records, the FDO had neither the authority nor ability to copy them onto a disk.

7. It is found that on April 18, 1996, the complainant was provided with access to, and copies of the requested records, except for documentation containing medical information and any pre-decisional notes taken by the Workers’ Compensation Commissioner who adjudicated the subject workers compensation claim.

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. The respondent contends that the requested medical records and commissioner notes are exempt from disclosure pursuant to § 1-19(b)(2), G.S.

10. 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."

11. Perkins v. Freedom of Information Commission, 228 Conn. 158 (1993), sets forth the standard for the exemption contained in § 1-19(b)(2), G.S. In this regard, the respondent has a twofold burden of proof: First, the respondent must establish that the files in question are within the categories of files protected by the exemption, that is, personnel, medical or similar files; and second, the respondent must show that disclosure of the records would constitute an invasion of personal privacy.

12. It is found that the requested medical records constitute "medical" files, within the meaning of § 1-19(b)(2), G.S.

13. It is also found that under the circumstances of this case, the requested commissioner notes, constitute "medical" files, within the meaning of § 1-19(b)(2), G.S.

14. The Court in the Perkins case further instructs that the invasion of personal privacy portion of the § 1-19(b)(2), G.S., exemption precludes disclosure only when the information sought (a) does not pertain to a legitimate matter of public concern, and (b) is highly offensive to a reasonable person.

Upon the facts of this case, it is found that the disclosure of requested medical records and commissioner notes would be highly offensive to a reasonable person, and that such information does not pertain to a legitimate matter of public concern.

16. It is therefore concluded that disclosure of the requested medical records and commissioner notes would constitute an invasion of personal privacy, within the meaning of § 1-19(b)(2), G.S.

17. The respondent claims that with respect to the requested computer-stored records, at the time of the complainant’s request, the FDO did not have on-site the software or technology necessary to download the requested records to a disk.

18. Section 1-19a(a), G.S., concerning the disclosure of computer-stored public records, in relevant part provides that:

[a]ny public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to this chapter, a copy of any nonexempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such copy or have such copy made. Except as otherwise provided by state statute, the cost for providing a copy of such data shall be in accordance with the provisions of section 1-15.

19. It is found that the respondent failed to prove that he could not reasonably make a copy, or have a copy made, of the requested computer-stored records on either paper or computer disk.

20. It is therefore concluded that the respondent violated the provisions of § 1-19a(a), G.S., by failing to provide the complainant with a copy of the computer-stored contents of the requested records, excluding any exempt medical records and commissioner notes, on paper or disk, whichever form was sought by the complainant.

21. The Commission declines to impose a civil penalty against the respondent.

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

1. The respondent shall forthwith provide the complainant with a copy of the computer-stored contents of the requested records, excluding any exempt medical records and commissioner notes, on paper or disk, as requested by the complainant.

2. In complying with paragraph 1 of this order, above, the respondent may charge the complainant a fee for a copy of any computer-stored records, in accordance with § 1-15(b), G.S.

3. The remainder of the complaint is hereby dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of March 26, 1997.

__________________________
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:

David W. Cummings
PO Box 166
Broad Brook, CT 06016

Michael J. Giammatteo, Esq.
Assistant Attorney General
55 Elm Street
PO Box 120
Hartford, CT 06141-0120

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC1996-119/FD/eal/04041997