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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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Anne Hamilton and |
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Complainants |
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against
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Docket
#FIC1999-440 |
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James Martino, Chief, Police Department, Town of Avon; Peter A. Agnesi, Lieutenant, Police Department, Town of Avon; and Police Department, Town of Avon, |
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Respondents |
March
8, 2000 |
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Prior to the hearing in the above-captioned matter, Susan Kassey, an employee of the respondent department, moved for permission to intervene, which motion was granted. Ms. Kassey was granted party status. This matter was heard as a contested case on December 9, 1999, at which time the complainants, the respondents, and the intervenor 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 §1-200(1), G.S. [formerly §1-18a(1), G.S.].
2. By letter dated August 6, 1999, the complainants requested that the respondents provide them with a copy of an internal affairs investigation report involving Officer Susan Kassey.
3. By letter dated August 11, 1999, the respondents responded to the complainants asking for more specifics about the requested record.
4. By letter dated August 24, 1999, the complainants requested that the respondents provide a copy of an internal affairs investigation report in a matter involving a sexual harassment complaint filed by Officer Susan Kassey [hereinafter “the report”].
5. By letter dated September 2, 1999, the respondents informed the complainants that the request described in paragraph 4, above, was denied, since Officer Kassey had objected to release of the report.
6. By letter dated September 17, 1999, and filed with the Commission on September 21, 1999, the complainants alleged that the respondents violated the Freedom of Information [hereinafter “FOI”] Act by virtue of the denial described in paragraph 5, above.
7. 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….
8. Section 1-212(a), G.S. [formerly §1-15(a), G.S.], provides in relevant part, that:
any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record….
9. It is concluded that the report is a public record within the meaning of §1-210(a), G.S. [formerly §1-19(a), G.S.].
10. The respondents submitted a copy of the report to the Commission for in-camera inspection, which report has been identified as in-camera document #s: FIC1999-440-1 through 1999-440-029.
11. The respondents contend that the report is exempt from mandatory disclosure pursuant to §§1-210(b)(2) and 1-214(c), G.S. [formerly §§1-19(b)(2) and 1-20a(c), G.S.]
12. Section 1-214(c), G.S. [formerly §1-20a(c), G.S.], in relevant part states:
[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…Upon the filing of an objection as provided in this subsection, the agency shall not disclose the requested records unless ordered to do so by the Freedom of Information Commission pursuant to section 1-206….
13. Section 1-214(b), G.S. [formerly §1-20a(b), G.S.], in relevant part states:
[w]henever a public agency receives a request to inspect or copy records contained in any of its employees' personnel or medical files and similar files and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency shall immediately notify in writing (1) each employee concerned, provided such notice shall not be required to be in writing where impractical due to the large number of employees concerned and (2) the collective bargaining representative, if any, of each employee concerned….
14. It is found that Officer Kassey, the employee identified in the report, timely filed an objection to disclosure of the report within the meaning of §1-214, G.S. [formerly §1-20a, G.S.]
15. Section 1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.], in relevant part provides for the nondisclosure of:
personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.
16. The Supreme Court set forth the test for the §1-210(b)(2), G.S., [formerly §1-19(b)(2), G.S.], exemption in Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993). Specifically, the claimant must first establish that the files in question are personnel, medical or similar files. Second, the claimant 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 claimant 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.
17. It is found that the report is a "similar" file within the meaning of §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.]
18. Upon careful review of the in-camera documents described in paragraph 10, above, it is found that the information sought does not pertain to legitimate matters of public concern within the meaning of Perkins, supra.
19. It is also found, however, that the information sought would not be highly offensive to a reasonable person if disclosed, within the meaning of Perkins, supra.
20. It is therefore concluded that the in camera records are not exempt from disclosure pursuant to §1-210(b)(2), G.S., (formerly §1-19(b)(2), G.S.), and that, therefore, the respondents’ denial as described in paragraph 5, above, was not in compliance §1-210(a), G.S. (formerly §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. Forthwith, the respondents shall provide the complainants with a copy of the report, free of charge.
Approved by Order of the Freedom of Information Commission at its regular meeting of
March 8, 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:
Anne Hamilton and The Hartford Courant
56 East Main
Street
Avon, CT
06001
James Martino, Chief, Police Department, Town of Avon; Peter A. Agnesi, Lieutenant,
Police
Department, Town of Avon; and Police Department, Town of Avon
c/o Atty. Michael Colgan Harrington
Murtha, Cullina, Richter & Pinney
CityPlace I, 185 Asylum Street
Hartford, CT 06103-3469
Susan Kassey
109 Childs Street
New Britain, CT 06051
__________________________
Melanie R. Balfour
Acting Clerk of
the Commission
FIC1999-440FD/mrb/03/10/00