FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

 

In the Matter of a Complaint by                                                FINAL DECISION

 

John B. Harkins

 

                        Complainant

 

            against                                                                          Docket #FIC 1997-088

 

Acting Town Manager, Town

of Tolland

 

                        Respondent                                                      January 28, 1998

 

 

            The above-captioned matter was heard as a contested case on September 4, 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 §1-18a(1), G.S., (§1-18a(a), G.S., prior to Oct. 1, 1997).

 

            2.  The Commission takes administrative notice of the decisions in contested case docket #FIC 1996-421, John B. Harkins v. Chairman, Tolland Town Council, (“FIC 1996-421”) and contested case docket #FIC 1996-521, Carol Butterworth v. Town Council, Town of Tolland, (“FIC 1996-521”).

 

3.  It is found that in 1996, during his tenure as Town Manager of the town of Tolland (“town”), the complainant was evaluated by the Tolland Town Council (hereinafter “town council”).

 

4.  It is found that certain town employees (“employees”) participated in the evaluation process by completing questionnaires.  Ultimately, the employees’ answers to the questionnaires were incorporated into the town council’s evaluation of the complainant.

 

5.  It is found that based upon the respondent’s evaluation, the complainant was relieved of his position as town manager.

 

6.  It is found that by letter dated September 20, 1996, the complainant requested that the town council provide him with a copy of the evaluation records.  That request was denied in part by the town council, and the complainant appealed the denial to the Commission.  That appeal was docketed as FIC 1996-421, and a hearing was held on January 16, 1997.

 

7.  It is also found that by letter dated August 30, 1996, Carol Butterworth, a private citizen, requested that the town council provide her with a copy of the evaluation records.  That request was denied in part by the town council, and following an appeal to the Commission by Ms. Butterworth, docketed as FIC 1996-521.  A hearing was held in FIC 1996-521 on February 13 and 19, 1997.

 

8.  Following the hearings in FIC 1996-421 and FIC 1996-521, the complainant, by letter dated February 24, 1997, requested that the respondent provide him with a copy of the following records, which are the subject of this appeal, hereinafter (“requested records”):

 

a.  video tape of the September 19, 1996 public hearing concerning the complainant;

 

b.  employees’ objections to the disclosure of their questionnaire answers (hereinafter “objections”); and

 

c.  responses of any union affiliated persons regarding the respondent’s notice sent to employees pursuant to §1-20a(b) and (c), G.S.

 

9.  After receiving the complainant’s request, described in paragraph 8b and 8c of the findings, above, the respondent, by letter dated March 4, 1997, notified the employees of the complainant’s request for their objections.

 

10.  It is found that in response to the March 4, 1997 notice, described in paragraph 9 of the findings, above, three employees objected to the disclosure of their objections.

 

11.  Having failed to receive the requested records, the complainant, by letter dated March 7, 1997, and filed with the Commission on March 12, 1997, alleged that the respondent violated the Freedom of Information Act by denying him a copy of the requested records.

 

12.  By letter dated March 18, 1997, the respondent requested that the Commission dismiss this appeal because it was prematurely filed in that the time period set forth at §1-20a(c), G.S., within which objecting employees could respond, had not expired.

 

13.  It is concluded that the appeal was filed within the appropriate time period and therefore, the Commission has jurisdiction to hear it.

 

14.  With respect to the record requested and described in paragraph 8a of the findings, above, it is found that by letter dated March 3, 1997 the respondent agreed to provide the complainant with the requested record and provided the complainant with such record a few weeks following his request.

 

15.  With respect to the record requested and described in paragraph 8c of the findings, above, it is found that such record never existed.

 

16.  With respect to the record requested and described in paragraph 8b of the findings, above, it is found that the respondent maintains objections responsive to the complainant’s request and such objections are public records within the meaning of §1-18a(5), G.S., (§1-18a(d), G.S., prior to Oct. 1, 1997) and §1-19(a), G.S.

 

17.  The respondent contends that the objections are exempt from disclosure pursuant to §1-19(b)(2), G.S.

 

18.  It is found that the objections constitute personnel, medical or similar file within the meaning of §1-19(b)(2), G.S.

 

19.  The respondent claims that disclosure of the objections would identify the employees who objected to the disclosure of their questionnaire answers, and therefore, would constitute an invasion of such employees’ privacy.

 

20.  In determining whether the §1-19(b)(2), G.S., personal privacy 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.

 

            21.  It is found that the information contained in the objections pertains to legitimate matters of public concern.

 

22.  It is also found that the information contained in the objections is not highly offensive to a reasonable person.

 

            23.  It is therefore, concluded that the objections are not exempt from disclosure pursuant to §1-19(b)(2), G.S.

 

            24.  It is further concluded that the respondent violated §§1-19(a) and 1-15(a), G.S., by failing to promptly provide the complainant with a copy of the requested tape, more fully described in paragraph 8a of the findings, above, and by failing to provide the complainant with a copy of the objections, more fully described in paragraph 8b of the findings, above.  The respondent did not violate §§1-19(a) and 1-15(a), G.S., with respect to the record requested and described in paragraph 8c 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 objections, more fully described in paragraph 8b of the findings, above.

 

            2.  Henceforth the respondent shall strictly comply with the promptness provisions of §§1-19(a) and 1-15(a), G.S.

 

 

                Approved by Order of the Freedom of Information Commission at its regular meeting of January 28, 1998.

 

 

 

 

 

_________________________

Doris V. Luetjen

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:

 

John B. Harkins

96 Hunter Road

P.O. Box 683

Tolland, CT 06084

 

 

Acting Town Manager, Town of Tolland

c/o Dennis J. O’Brien

Law Offices of Howard B. Schiller

55 Church Street

P.O. Box 699

Willimantic, CT 06226

 

 

 

 

 

__________________________

Doris V. Luetjen

Acting Clerk of the Commission

 

 

 

 

 

 

FIC1997-088/FD/tcg/01281998