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FREEDOM OF INFORMATION
COMMISSION |
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In
the Matter of a Complaint by |
FINAL
DECISION |
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Janice
D’Arcy and The Hartford Courant, |
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Complainants |
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against |
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Docket
#FIC 1999-100 |
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Chief,
Police Department, Town of Cheshire; |
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Respondents |
January
26, 2000 |
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The above-captioned matter was heard as a contested case on April 23, 1999, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. At the hearing on this matter, Kerry Deegan requested and was granted intervenor status.
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 §1-200(a), G.S. [§1-18a(a), G.S.].
2. By letters dated November 30, 1998 and December 18, 1998, the complainants requested from the respondents copies of internal investigation reports regarding two complaints filed against Lieutenant Kerry Deegan (hereinafter “Lt. Deegan”), one pertaining to an allegation of sexual harassment and the other pertaining to an allegation of harassment.
3. By letters dated December 18, 1998, February 3, 1999, and February 17, 1999 the respondents responded to the complainants’ requests and informed them that because disclosure would be an invasion of Lt. Deegan’s personal privacy, their requests were denied and that Lt. Deegan had been notified of their request and had submitted a written objection to disclosure of the subject records.
4. By letter dated March 1, 1999 and filed on March 9, 1999, the complainants appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying their requests as described in paragraph 2, above.
5. 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 or to receive a copy of such records in accordance with the provisions of section 1-212.
6. Section 1-212(a), G.S. [formerly §1-15(a), G.S.], provides in relevant part that:
[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.
7. It is found that the subject records are public records within the meaning of §1-210(a), G.S. [formerly §1-19(a), G.S.].
8. At the hearing on this matter, the respondents argued that because:
a. the subject records are “personnel”, “medical”, or “similar” and they received a written objection from the subject of the records, withholding the records was appropriate;
b. the records pertaining to the harassment complaint contain witness statements, the names of a juvenile and a victim, as well as uncorroborated allegations, disclosure is not required under the FOI Act;
c. the sexual harassment complaint “and matters surrounding it” are pending before the state Commission on Human Rights and Opportunities (hereinafter “CHRO”), the records are not subject to disclosure under the FOI Act;
d. and the harassment complaint “and matters surrounding it” are pending before the state Grievance Committee, the records are not subject to disclosure under the FOI Act.
9. Also at the hearing on this matter, the intervenor argued that:
a. because the allegations in both complaints could have resulted in a criminal action against Lt. Deegan, disclosure is not required pursuant to §1-210(b), G.S. [formerly §1-19(b), G.S.];
b. because the records are part of pending litigation, disclosure is not required under the FOI Act;
c. and because Lt. Deegan has not been permitted to inspect the subject records, the complainants are not entitled to access to the record nor does this Commission have the authority to make the determination that the complainants are entitled to access until Lt. Deegan has had an opportunity to inspect the subject records first.
10. The subject records were submitted to the Commission for in-camera inspection, which records have been identified as in-camera document #s 1999-100-1 through 1999-100-82, which pertain to the sexual harassment complaint, and in-camera document #s 1999-100-1A through 1999-100-117A, which pertain to the harassment complaint.
11. With respect to the respondents claim in paragraph 8a above, §1-210(b)(2), G.S. [formerly §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 . . . ”.
12. Section 1-214(b), G.S. [formerly §1-20a(b), G.S.], states in pertinent part that:
[w]henever a public agency receives a request to inspect or copy records contained in any of its employees’ personnel or medical and similar files and the agency reasonably believes that the disclosure would legally constitute an invasion of privacy, the agency shall immediately notify in writing (1) each employee concerned and (2) the collective bargaining representative, if any, of each employee concerned. Nothing herein shall require an agency to withhold from disclosure the contents of personnel or medical files and similar files when it does not reasonably believe that such disclosure would legally constitute an invasion of personal privacy.
13. Section 1-214©, G.S. [formerly §1-20a©, G.S.], states in pertinent part:
[a] public agency which has provided notice under subsection (b) of this section shall disclose the records requested unless it receives a written objection from the employee concerned or the employee’s collective bargaining representative . . . .
14. The test for determining whether the disclosure of 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.
15. It is found that the respondents notified Lt. Deegan of the complainants’ requests in accordance with the provisions of §1-214(b), G.S. [formerly §1-20a(b), G.S.] and received an objection from him pursuant to §1-214(c), G.S. [formerly §1-20a(c), G.S.].
16. It is concluded that the requested records are “personnel” or “similar” files within the meaning of §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.].
17. It is found that the respondents and the intervenor failed to argue that the requested records do not pertain to legitimate matters of public concern.
18. It is further found that the requested records concerning the complaints filed against Lt. Deegan, a public officer, in whom a significant amount of public trust is placed, the actions or activity which lead to the complaints, and the discipline, if any, meted out, do pertain to legitimate matters of public concern.
19. It is further found that the respondents and the intervenor failed to argue and thereby failed to prove that disclosure of the requested records would be highly offensive to a reasonable person.
20. It is therefore concluded that the respondents and the intervenor failed to prove that the requested records are exempt from disclosure under §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.].
21. With respect to the respondents’ claim in paragraph 8b, above, §1-210(b)(3), G.S. [formerly §1-19(b)(3), G.S.], provides in relevant part that nothing in the FOI Act shall require the disclosure of:
records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if disclosure of said records would not be in the public interest because it would result in the disclosure of . . . signed statements of witnesses, . . . arrest records of a juvenile, . . . the name and address of the victim of sexual assault or . . . uncorroborated allegations subject to destruction pursuant to section 1-216 . . . .
22. It is found that the investigations of the complaints described in paragraph 2, above, were conducted internally under the rules, regulations and policies of the Cheshire Police Department and not as criminal investigations under the laws of this state.
23. It is found therefore that the requested records were not compiled in connection with the detection or investigation of crime within the meaning of §1-210(b)(3), G.S. [formerly §1-19(b)(3), G.S.].
24. It is therefore concluded that the §1-210(b)(3), G.S., exemption [formerly §1-19(b)(3), G.S.], is not applicable to the requested records in this case.
25. With respect to the arguments found in paragraphs 8c, 8d, and 9b, above, §1-210(b)(4), G.S. [formerly §1-19(b)(4), G.S.], provides in relevant part that nothing in the FOI Act shall require the disclosure of:
records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled . . . .
26. It is found that the respondents and the intervenor failed to prove that the requested records pertain to strategy and negotiations with respect to a pending claim or litigation within the meaning of §1-210(b)(4), G.S. [formerly §1-19(b)(4), G.S.].
27. It is therefore concluded that the §1-210(b)(4), G.S., exemption [formerly §1-19(b)(4), G.S.] is not applicable to the requested records in this case.
28. With respect to the intervenor’s claim in paragraph 9a, above, it is found that nothing in the FOI Act provides for the nondisclosure of records pertaining to matters which could have resulted in a criminal action against the subject of the records.
29. With respect to the intervenor’s claim in paragraph 9c, above, it is found that nothing in the FOI Act makes disclosure of public records or the Commission’s authority to order the disclosure of public records contingent upon whether the subject of the records had an opportunity to review the records prior to disclosure.
30. It is concluded therefore that the requested records are subject to disclosure pursuant to §1-210(a), G.S. [formerly §1-19(a)(1), G.S.] and that the respondents violated the FOI Act, by failing to provide the complainants with copies of such records, promptly upon request.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.
1. The respondents shall forthwith provide the complainants with copies of the records described in paragraph 2 of the findings above, free of charge.
2. In complying with the paragraph 1 of the order above, the respondents may redact: the name of the individual involved in the motor vehicle accident found in in-camera document #s 1999-100-70 and 71; the name of the addressee as it appears throughout in-camera document #s 1999-100-72 and 73; and the names of the alleged victims of the harassment and the names of the witnesses regarding the alleged harassment as they appear throughout in-camera document #s 1999-100-1A through 1999-100-117A.
3. In complying with paragraph 1 of the order, above, the respondents need not disclose medical records, marital relationship records, names of juveniles, the name of the victim in the harassment incident, or any other name that would identify the victim, because at the hearing on this matter the complainants withdrew their complaint with respect to such matters.
4. Henceforth, the respondents shall strictly comply with the provisions of §§1-210(a) and 1-212(a), G.S. [formerly §§1-15(a) and 1-19(a), G.S.].
Approved by Order of the Freedom of Information Commission at its regular meeting of
January 26, 2000.
_________________________
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:
Janice D’Arcy and The Hartford Courant
373 East Main Street
Middletown, CT 06457
Chief, Police Department, Town of Cheshire; Police Department, Town of Cheshire; Town Manager, Town of Cheshire; and Town of Cheshire
c/o Atty. Priscilla C. Mulvaney
325 South Main Street
Cheshire, CT 06410
and
Kerry Deegan
c/o Atty. John J. Kelly
378 Boston Post Road
PO Box 966
Orange, CT 06477
__________________________
Melanie R. Balfour
Acting Clerk of the Commission
FIC1999-100FD/mrb/01/31/00