Docket #FIC 1996-539

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

FINAL DECISION
Docket #FIC Docket #FIC 1996-539
August 27, 1997

In the Matter of a Complaint by Ann Marie Derwin, Complainant
against
Legal Advisor, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety, Respondents
August 27, 1997

The above-captioned matter was heard as a contested case on March 21, 1997, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of § 1-18a(a), G.S.

2. By letter dated September 13, 1996, the complainant requested that the respondent Legal Advisor, Department of Public Safety provide her with a copy of "the investigation report of Trooper John Barone" (the "report").

3. By letters dated September 17, 1996 and September 27, 1996, the respondents in turn acknowledged the complainant’s request and then denied the request on the basis that Trooper John Barone filed an objection pursuant to § 1-20a, G.S., on the ground that the records contain "personal information".

3. By letter dated October 18, 1996, and filed on October 21, 1996, the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information Act by denying her request for the report.

4. It is found that the report, which was submitted for in camera inspection, is a public record within the meaning of § § 1-18a(d) and 1-19(a), G.S.

5. Section 1-19(a), G.S., provides in pertinent part:

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours….

6. However, § 1-19(b)(2), G.S., provides that a public agency need not disclose "personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy".

7. In Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993), the Supreme Court set forth the test for the exemption contained in § 1-19(b)(2), G.S. The respondent must first establish that the files in question are personnel, medical or similar files. Second, the respondent must show that disclosure of the records would constitute an invasion of personal privacy. In determining whether disclosure would constitute an invasion of personal privacy, the respondent must establish both of two elements: 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.

8. It is found that the report constitutes personnel or similar files within the meaning of § 1-19(b)(2), G.S.

9. It is also concluded that, with the exception of the pages specifically referenced at paragraph 12, below, the information contained in the report does not pertain to legitimate matters of public concern and is highly offensive to a reasonable person. In fact, the report focuses on the very "off duty" matters which Perkins expressly characterizes as "normally entirely private matters".

10. It is further found, however, that the portions of the report set forth at paragraph 12, below, relate to aspects of the conduct of life which are outside the immediate scope of employment, but that are widely recognized as bearing on the suitability of an individual for sensitive public service and, therefore, do pertain to legitimate matters of public concern. These aspects of life include:

a. a record and reputation for truthfulness, or one to the contrary;

b. the management of personal finances, if it includes a level and nature of indebtedness that is out of the ordinary and tends to create an exposure to improper pressures.

11. It is also found that the public has a continuing interest in how the respondent Department of Public Safety (the "Department") investigates and evaluates citizen complaints of police misconduct, in order, ultimately, to help ensure that the state and local police fairly investigate citizen complaints.

12. It is therefore found that the following portions of the report relate to a record for truthfulness or a management of personal finances that is out of the ordinary, with reference to Trooper John Barone, a public employee, and to the public’s interest in how the respondent Department investigates and evaluates citizen complaints:

a. the entire Section A (the Executive Summary), except the second full paragraph on page 2 of said summary (to be distinguished from the second of three indented subparagraphs on the same page);

b. within Section B (IA Investigation); page 4, the last paragraph on the page only; page 5, the last paragraph on the page only; page 7, the first full paragraph on the page only; page 8, the first full paragraph on the page only; page 11, the two paragraphs following the heading "14.2.2b (92) - Violation of laws" and the last paragraph on the page only;

c. within the summary of the 8/29/95 interview with Trooper John Barone, which is part of Section D; page 3 only, except the last six lines on the page, and also on page 6, the last seven lines only;

d. within the summary of the 11/8/95 interview with Trooper John Barone, which is part of Section D; pages 2 and 3 only, except the last two paragraphs on page 2;

e. within the transcript of the Beardswoth/Barone interview, which is part of Section D; pages 4 through 9 only.

13. Consequently, it is also concluded that the portions of the report described at paragraph 12, subsections a to e, do pertain to legitimate matters of public concern, are not exempt from disclosure under § 1-19(b)(2), G.S., and are subject to mandatory disclosure pursuant to § 1-19(a), G.S.

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

1. The respondents shall furnish the complainant with copies of the portions of the report described at paragraph 12, subsections a to e, forthwith.

2. In complying with paragraph 1 of the order, above, the respondent may redact those portions of the report found not to pertain to a legitimate matter of public concern, as set forth in paragraph 12, subsections a to e, above.

Approved by Order of the Freedom of Information Commission at its regular meeting of August 27, 1997.

__________________________
Dolores E. Tarnowski
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:
Ann Marie Derwin
c/o Joseph P. Latino, Esq.
Hertzmark & Crean, P.C.
76 Center Street
P. O. Box 1816
Waterbury, CT. 06722

Legal Advisor, State of CT., Dept. of Public Safety; and State CT., Dept. of Public Safety
c/o Henri Alexander, Esq.
Assistant Attorney General
110 Sherman Street
Hartford, CT. 06105

__________________________
Dolores E. Tarnowski
Clerk of the Commission
FIC1996-539/mes/09041997