FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on February 13 and 19, 1997, at which time the complainant and the respondent appeared, stipulated to certain facts 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 respondent is a public agency within the meaning of Section 1-18a(a), G.S.

2. It is found that on August 30, 1996, the complainant wrote a letter to the chairman of the respondent, requesting a copy of all documents pertaining to the evaluation of Town Manager, John B. Harkins, including the sixteen page report (the "final report"), the questionnaire that was submitted to town employees, and all answers to the questionnaire submitted by fourteen town employees (the "evaluations" or sometimes herein each "evaluation").

3. It is found that by letter dated September 6, 1996, the respondent denied the complainant’s request, except for the questionnaire submitted to town employees, a copy of which he forwarded to the complainant.

4. By letter dated September17, 1996, and filed with the Commission on September 18, 1996, the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information Act by denying her access to the records described at paragraph 2, above, with the exception of the questionnaire that was submitted to town employees.

5. The respondent would release the final report to the complainant, but for the objection of Mr. Harkins, and contends that the evaluations at issue are exempted from mandatory disclosure by § 1-19(b)(1), G.S.

6. Section 1-19(b)(1), G.S., states that nothing in the Freedom of Information Act shall be construed to require disclosure of:

preliminary drafts and notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure….

7. Section 1-19(c), G.S., however, provides in relevant part:

Notwithstanding the provisions of subdivisions (1) and (16) of subsection (b) of this section, disclosure shall be required of (1) interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency.…

8. It is found that each evaluation at issue constitutes a recommendation or report "comprising part of the process by which governmental decisions and policies are formulated," and, therefore, are not exempt from disclosure under § 1-19(b)(1), G.S.

9. The respondent also contends that the evaluations are exempted from mandatory disclosure by § 1-19(b)(2), G.S., as "personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy."

10. It is found that the evaluations at issue constitute personnel files within the meaning of § 1-19(b)(2), G.S.

11. It is also found, however, that the subject of the evaluations, Mr. Harkins, does not object to the disclosure of all the records described at paragraph 2, above, provided only that the entire group of records is disclosed as a whole.

12. The respondent does not claim that disclosure of the evaluations at issue would constitute an invasion of the personal privacy of the subject of those evaluations. Rather, the respondent argues that such disclosure would constitute an invasion of the privacy of the evaluators, since they were promised that their evaluations of the complainant would be kept confidential.

13. It is concluded, however, that the reference to invasion of personal privacy in § 1-19(b)(2), G.S., relates only to the subject of the personnel or medical file or similar file at issue.

14. It is also concluded that in determining whether the § 1-19(b)(2), G.S., exemption is applicable, the appropriate test is that set forth in Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993). The test requires that two elements be met: first, that the information sought does not pertain to legitimate matters of public concern, and second, that such information is highly offensive to a reasonable person.

15. After an in camera inspection of all the records at issue, it is found that the information contained in the records pertains to legitimate matters of public concern.

16. After an in camera inspection of all the records at issue, it is also found that the information contained in the records at issue is not highly offensive to a reasonable person.

17. Consequently, notwithstanding the respondent’s claims to exemption under § 1-19(b)(1) and (2), G.S., it is concluded that the records at issue are public records subject to mandatory disclosure pursuant to § 1-19(a), G.S.

18. It is therefore concluded that the respondent violated § § 1-19(a) and 1-15(a), G.S., by failing to provide the complainant with a copy of the records described at paragraph 2 of the findings, above.

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 records described at paragraph 2 of the findings, above, which have not heretofore been provided..

2. The respondent is cautioned not to give assurances of confidentiality concerning public records in circumstances where such assurances may be contrary to the Freedom of Information Act.

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:

Carol Butterworth
106 Cedar Swamp Road
Tolland, CT 06084

Town Council, Town of Tolland
c/o Dennis J. O’Brien, Esq.
Law Offices of Howard B. Schiller
PO Box 699
Willimantic, CT 06226

_______________________
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC1996-521/FD/eal/04041997