FIC1998-391

FREEDOM OF INFORMATION COMMISSION OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by			FINAL DECISION
Jonathan F. Kellogg and The Republican American,
		Complainants
	against		Docket #FIC 1998-391
Department of Education, City of Waterbury,
		Respondents	October 13, 1999

The above-captioned matter was heard as a contested case on February 2, 1999, at which time the complainants 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 §1-200(1), G.S. [formerly §1-18a(1), G.S.].

2. By letter dated October 7, 1998, the complainants, through a staff reporter, Sean Lyons, made a written request to the respondent for access to inspect the resumes and applications for all candidates for any teaching or administrative position between January 1, 1996 and the date of the request.

3. By letter dated October 8, 1998, the respondent acknowledged receipt of the complainants’ request and informed the complainants that their request was being reviewed and further response would be provided.

4. It is found that on October 20, 1998, the respondent faxed a letter to the complainants stating that it would take approximately one hour to gather the resumes and applications and requesting written confirmation from the complainants that the respondent should proceed in compiling the requested records.

5. It is found that such confirmation was provided.

6. It is also found that subsequent to the complainants’ written confirmation to the respondent, the complainants, through Mr. Lyons, and the respondent, through its counsel, had several telephone conversations over the course of several days regarding the production of the records for the complainants’ inspection which included a discussion regarding certain information contained in the records being redacted.

7. It is found that on November 20, 1998, the complainants were provided with access to inspect the records which were divided into two categories: the resumes and applications of applicants who were hired and the resumes and applications of applicants who were not hired.

8. It is found that the respondent attempted to redact the addresses and telephone numbers, and the religious and political affiliation of the applicants that had been hired, and of the applicants that had not been hired, the respondent redacted the names as well.

9. It is found that the complainants, through Mr. Lyons, were able to read the names and addresses and contacted those individuals to obtain information regarding their experience with and perception of the hiring process of the respondent.

10. It is found that on or about November 25, 1998, the respondent discovered that the names and addresses it attempted to redact were still visible and upon confronting Mr. Lyons about his ability to read the names and his contacting the individuals, the records were physically taken from him and he was not allowed to inspect the records until the names and addresses were redacted in a way that they were no longer visible.

11. By letter dated and filed on November 27, 1998, the complainants appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying them access to inspect the requested records and by redacting the names and address of those individuals that were not hired by the respondent.

12. Section 1-210(a), G.S. [formerly §1-19(a), G.S.], provides in relevant part that:

[e]xcept 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 . . .

13. It is found that the requested records are public records within the meaning of §1-210(a), G.S. [formerly §1-19(a), G.S.].

14. At the hearing on this matter, the respondents moved for a dismissal of the complaint arguing that this Commission lacked jurisdiction to hear the complaint because the complainants did not file their complaint within thirty days of their October 7, 1998 request.

15. Section 1-206(b)(1), G.S. [formerly §1-21i(b)(1), G.S.], provides in relevant part that:

[a]ny person denied the right to inspect or copy records under §1-210 . . . or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within thirty days after such denial . . . .

16. It is found that the alleged denial to inspect the requested records took place on November 25, 1998, when the respondent took the requested records from Mr. Lyons and refused him access to inspect the records any further on that date and that the complainants filed their appeal within thirty days from the date of such denial as required by statute.

17. It is therefore concluded that this Commission has jurisdiction to hear the complaint and consequently the respondent’s motion to dismiss the complaint for lack of jurisdiction is denied.

18. At the hearing on this matter, the respondent argued that the redactions were appropriate and consistent with prior decisions of the courts and this Commission in that the respondent redacted only that information which falls within the exemption found in §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.]. The respondent also argued that because the redactions were appropriate, the respondent was entitled to take the documents from Mr. Lyons to perform a more effective redaction process, once it discovered that the information it attempted to redact was still visible, and that such action was not a denial of access under those circumstances. The respondent further argued that because Mr. Lyons was told that certain information would be redacted and because he agreed to inspect the records in their redacted form, the complainants waived any rights they may have had to appeal to this Commission regarding such redactions.

19. With respect to the respondent’s assertion that the complainants waived their right to appeal to this Commission regarding the redactions, it is found that the complainants understood that the information described in paragraph 8, above, would be redacted and inspected the records in that form.

20. It is also found, however, that understanding that the records would be redacted and inspecting them in their redacted form is not, in itself, a manifestation of consent to the redactions or a waiver of the complainants’ right to appeal to this Commission regarding such redactions.

21. It is concluded therefore that the complainants did not waive their right to appeal to this Commission regarding the redactions described in paragraph 8, above.

22. With respect to the respondent’s argument that the redactions were appropriate, §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.] provides in relevant part that nothing in the FOI Act shall be construed to require the disclosure of “ . . . personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .”

23. It is found that the records regarding applicants that were hired by the respondent are “personnel files” within the meaning of §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.] and that the records regarding applicants not hired by the respondent are “similar files” within the meaning of §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.].

24. It is also found that at all times material to this case, the appropriate test for determining whether an “ . . . agency reasonably believes that disclosure of . . . records would legally constitute an invasion of privacy”, pursuant to §1-214(b), G.S. [formerly §1-20a(b), G.S.], and whether the disclosure of such records would legally constitute an “invasion of privacy”, pursuant to §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.], is set forth in Perkins v. Freedom of Information Commission, 228 Conn. 158 (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 the information is highly offensive to a reasonable person. Perkins at 175. See also Kureczka, et al. v. Freedom of Information Commission, et al., 228 Conn. 271 (1994).

25. With respect to the resumes and applications of both those hired and those not hired by the respondent, it is found that the respondent did not offer any evidence whatsoever that the disclosure of information regarding the applicant’s name, address, telephone number, and religious and political affiliation would be highly offensive to a reasonable person or that such information was not a matter of legitimate public concern. Rather the respondent’s counsel merely alleged, in broad, conclusory terms, that the information was exempt. At no time did the respondent attempt to describe, even generally, how disclosure of the information would be highly offensive to a reasonable person or why such information was not a matter of legitimate public concern. The Commission is not obliged to accept an agency’s generalized and unsupported allegation relating to information claimed to be exempt from disclosure. City of Hartford et al. v. Freedom of Information Commission et al., 201 Conn. 421, (1986).

26. Although the Commission believes that under certain circumstances and with an appropriate evidentiary showing, the information described in paragraph 8, above, may meet the Perkins test, in this case, the respondent has failed to establish on the record that it was entitled to the exemption to disclosure of the subject information as provided in §1-210(b)(2), G.S. [formerly §1-19(b)(2),G.S.].

27. Consequently, it is concluded that the respondent violated §1-210(a), G.S. [formerly §1-19(a), G.S.] when it redacted the information described in paragraph 8, above.

28. Furthermore, it is found that the respondent denied the complainants access to inspect the requested records when they were taken from Mr. Lyons as described in paragraph 10, above.

29. Consequently, it is also concluded that the respondents violated §1-210(a), G.S. [formerly §1-19(a), G.S.] when it denied the complainants prompt access to inspect the requested records as described in paragraph 10, above.

30. At the hearing on this matter and in their letter of complaint, the complainants requested the imposition of a civil penalty against the respondent.

31. Section 1-206(b)(2), G.S. [formerly §1-21i(b)(2). G.S.], provides in relevant part that:

“. . . [u]pon a finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing . . . the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars . . . .”

32. It is found that subsequent to the respondent’s letter of October 8, 1999, as described in paragraph 3, above, the respondent unduly delayed the complainant’s access to the requested records in so far as it:

a. took two weeks from the date of the complainants’ request before informing the complainants, via fax dated October 20, 1998, as described in paragraph 4, above, that access to the records would be provided;

b. informed the complainant on or about October 20, 1998, that while it would only take one hour to compile the requested records, it would be a week before the respondent would be able to provide access to the requested records;

c. delayed access after the expiration of the week described in paragraph 32b, above, claiming that the clerk assigned to compile the records was out sick;

d. continued to delay access claiming that upon the return of the clerk assigned to compile the requested records, the other clerk was out on vacation leaving her to do the job of both clerks;

e. and finally, after all staff members were present, the respondent claimed it needed more time before access could be provided because a number of redactions had to be made before it would disclose the records.

33. It is also found that the respondent took over six weeks to provide access to records which only took an hour to compile.

34. It is found that the respondent failed to establish that the delay was not without reasonable grounds and did not present any witnesses at the hearing on this matter to provide evidence on this issue.

35. Notwithstanding the complainants’ acceptance of the delay, it is found that the excuses given for such delay were incredible and that the respondents acted in bad faith with respect to the complainant’s request.

36. It is also found, based upon the findings set forth in paragraph 32 through 35, above, that the failure to provide prompt access, as concluded in paragraph 29, above, was without reasonable grounds within the meaning of §1-206(b)(2), G.S. [formerly §1-21i(b)(2). G.S.].

37. In the letter of complaint in this matter, the complainant requested that a civil penalty be levied against the respondent department. However, §1-206(b)(2), G.S., requires that the official directly responsible for the respondent department be named when requesting a civil penalty. Therefore, the Commission cannot impose a civil penalty in this case. It is noted, however, that if an official directly responsible for the respondent department had been named in the complaint, based upon the findings in paragraphs 32 through 37, above, this case would have been ripe for the severest penalty possible.

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 complainants with access to inspect the records described in paragraph 2 of the findings, above, in their unredacted form, with the exception of social security numbers.

Approved by Order of the Freedom of Information Commission at its regular meeting of

October 13, 1999.

_________________________

Melanie R. Balfour

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:

Jonathan F. Kellogg and The
Republican American
c/o Thomas G. Parisot, Esq.

Secor, Cassidy & McPartland, P.C.

41 Church Street

Waterbury, CT 06723-2818

Department of Education,

City of Waterbury

c/o James E. Weir, Esq.

Office of Corporation Counsel

236 Grand Street

Waterbury, CT 06702

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

FIC1998-391/FD/mes/10141999