FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by |
FINAL DECISION |
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Bruce Kaz, |
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Complainant |
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against |
Docket #FIC 1999-575 |
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Robert
Skinner, First Selectman, |
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Respondents |
June 28, 2000 |
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The above-captioned matter was heard as a contested
case on March 22, 2000, at which time the complainant and the respondents
appeared, stipulated to certain facts and presented testimony, exhibits and
argument on the complaint. For
purposes of hearing, this case was consolidated with Docket #FIC 1999-545, Bruce
Kaz and Leo F. Smith v. Robert Skinner, First Selectman, Board of Selectmen,
Town of Suffield; Eric Remington, Second Selectman, Board of Selectmen, Town
of Suffield; and Jack Quinn, Third Selectman, Board of Selectmen, Town of
Suffield.
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.
It is found that by
letter dated December 3, 1999 to the respondents, the complainant made a
request for all documentation or correspondence related to the North Central
District Health Department letter of August 23, 1999, including the
investigation of the alleged “leak” of said letter and the billing
statements of the attorneys handling the investigation.
3.
By letter dated
December 3, 1999, the respondents responded to the complainant’s request,
providing him with some of the information, but denied the complainant’s
request with respect to the records pertaining to the investigation, claiming
that the subject of the records (hereinafter “the subject”) requested that
the information remain confidential, and claimed attorney client privilege
with respect to the notes taken by the attorneys during their investigation.
4.
By letter dated
December 15, 1999 and filed on December 16, 1999, the complainant filed an
appeal with this Commission alleging that the respondent violated the Freedom
of Information (“FOI”) Act by failing to provide him with all of the
requested records. The
complainant asked for the imposition of a civil penalty.
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 receive a copy of such records
in accordance with the provisions of section 1-212.
Any agency rule or regulation, or part thereof, that conflicts with the
provisions of this subsection or diminishes or curtails in any way the rights
granted by this subsection shall be void.”
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 requested records are public records within the meaning of §1-210(a), G.S. [formerly §1-19(a), G.S.].
8. Section 1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.], provides in relevant part that nothing in the FOI Act shall require the disclosure of “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .”
9. In Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993), the Supreme Court set forth the test for the exemption contained in §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.]. 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.
10. It is found that the requested records constitutes a “personnel” or “similar file” within the meaning of §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.].
11. It is found that the respondents received from the subject an oral objection and, by letter dated November 17, 1999, a written objection, to the disclosure of the requested records.
12. It is found that while the objection was in direct response to a prior request by another individual, the respondents understood that the subject did not want the records disclosed at any time to anyone.
13. Section 1-214(c), G.S. [formerly §1-20a(c), G.S.], provides in relevant part that “[u]pon the filing of an objection . . . the agency shall not disclose the requested records unless ordered to do so by the Freedom of Information Commission . . . .”
14. It is found, however, that on or about December 16, 1999, the subject of the records withdrew her objection and the respondents provided the complainant with all of the records maintained by the respondents which are responsive to his request except for the notes of the attorneys.
15. However, the complainant contends that the respondents had no reasonable belief that disclosure of the requested records would constitute an invasion of personal privacy within the meaning of Perkins, supra, and should have never provided the subject with an opportunity to object to the disclosure of them. As a result, the complainant further contends, the respondents violated §1-210(a), G.S. [formerly §1-19(a), G.S.] by failing to promptly comply with his request.
16. It is found that the respondents, after receiving answers to certain legal inquiries, determined that disclosure of the investigation report would be an invasion of the subject’s personal privacy because (1) there was no findings of a violation of any laws or duties on the part of the subject and (2) the subject may receive a degree of harassment at her home regarding the matter because of the subject’s prominent position, and the position of certain other close family members, in a very small and somewhat politically charged town.
17. It is found that while the respondents failed to apply the appropriate legal standards established by the Supreme Court in Perkins, supra, in determining whether disclosure of the records would be an invasion of the subject’s personal privacy, the respondents reasonably believed that disclosure of the records would be an invasion of the subject’s personal privacy.
18. It is therefore found that the respondents promptly complied with the complainant’s request.
19. It is concluded that the respondents did not violate the provisions of §1-210(a), G.S. [formerly §1-19(a), G.S.].
20. The complainant’s request for civil penalties is accordingly denied.
The
following order by the Commission is hereby recommended on the basis of the
record concerning the above-captioned complaint.
1.
The complaint is
hereby dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of
June 28, 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:
Bruce Kaz
297 East Street South
Suffield, CT 06078
Robert
Skinner, First Selectman, Town of Suffield; and Ted Flanders, Building
Inspector, Town of Suffield
c/o Atty. Edward G. McAnaney
McAnaney & McAnaney
Suffield Village
Suffield, CT 06078
__________________________
Melanie R. Balfour