FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Leo F. Smith,

 

Complainant

 

 

against

Docket #FIC 1999-560

Robert H. Skinner, First Selectman,
Town of Suffield; and Selectmen’s
Office, Town of Suffield,

 

 

Respondents

July 12, 2000

 

 

 

 

The above-captioned matter was heard as a contested case on March 22, 1999, 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 the above-captioned complaint was consolidated with Docket #s FIC 1999-525, Leo F. Smith v. John P. Lange, Human Resources Director, Town of Suffield; and Department of Human Resources, Town of Suffield; 1999-547, Leo F. Smith v. John P. Lange, Human Resources Director, Town of Suffield; and Department of Human Resources, Town of Suffield; and 1999-548, Leo F. Smith v. John P. Lange, Human Resources Director, Town of Suffield; and Department of Human Resources, 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.   By letter dated November 18, 1999, the complainant made a request to the respondents for a copy of the written opinion by Suffield Town Counsel, Justin Donnelly, in reference to the release by a town employee of the August 23, 1999 letter from the North Central District Health Department to Scot Guilmartin.

 

3.   It is found that by letter dated November 23, 1999, the respondents denied the complainant’s request.

 

4.   By letter dated November 23, 1999 and filed on November 26, 1999, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his request.

 

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.      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.].

 

7.      It is found that upon receipt of a prior request, the subject of the record was provided with an opportunity to object to the disclosure of the record pursuant to §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.] and §1-214(c), G.S. [formerly §1-20a(c), G.S.] and submitted a written objection on November 17, 1999.

 

8.      It is found that the respondents understood the objection by the subject of the record to apply to records related to that request and to any similar request made by anyone at anytime.

 

9.      It is also found that on or about December 16, 1999, the subject of the record withdrew her objection and the respondents provided the complainant with the requested record. 

 

10.  Section 1-210(b)(2), G.S. [formerly §1-19(a), 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 . . . .”

 

11.  Section 1-214(b), G.S. [formerly §1-20a(b), G.S.], provides in relevant part that: 

 

“Whenever 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 . . . 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.”

 

12.     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.

 

13.   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 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.

 

14.     It is found that the custodian of the records, which was the Human Resources Director of the Town of Suffield, felt that the nature of the records and the small size of the town justified withholding the records from disclosure to protect the identity of the subject of the records and initiated the course of action taken with respect to the records which action was conceded to by the respondents.

 

15.     It is found that the respondent selectman did not determine whether disclosure would legally constitute an invasion of personal privacy by determining, first, that the information sought does not pertain to a legitimate matter of public concern and, second, that the information is highly offensive to a reasonable person.

 

16.     It is found that the respondent selectman failed to make the appropriate legal determination, which is a prerequisite to providing notice to the employees under §1-214(b), G.S. [formerly §1-20a(b), G.S.].

 

17.     It is therefore concluded that the respondents violated the disclosure provisions of §1-210(a), G.S. [formerly §1-19(a), G.S.], and its duties under §1-214(b), G.S. [formerly §1-19(a), G.S.].

 

18.     The complainant’s request for the imposition of a civil penalty is denied.

 

 

On the basis of the record in the above-captioned complaint, no order is recommended to the Commission.

 

 

 

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

July 12, 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:

 

 

Leo F. Smith

1060 Mapleton Avenue

Suffield, CT  06078

 

 

Robert H. Skinner, First Selectman, Town of Suffield; and Selectmen’s Office, Town of Suffield

c/o Atty. Edward G. McAnaney

McAnaney & McAnaney

Suffield Village

Suffield, CT  06078

 

 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

FIC1999-560FD/mrb/07/14/00