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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James D. Goodwin, |
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Complainant |
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against |
Docket #FIC 2000-094 |
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Communications
Specialist, State |
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Respondents |
August 9, 2000 |
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The above-captioned matter was heard as a contested
case on April 12, 2000, at which time the complainant and the respondent
appeared, stipulated to certain facts and presented testimony, exhibits and
argument on the complaint. Marjorie
Downey requested and was granted party status in the above-captioned matter.
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.
2.
By letter dated
January 18, 2000, the complainant made a request to the respondent for a copy
of the report issued by William Hoey of Family Services Woodfield in regard to
Marjorie Downey, fiscal administrative manager for the Department of Social
Services.
3.
By letter dated
January 18, 2000, the respondent informed the complainant that it no longer
maintained a copy of the requested report and therefore would not be able to
comply with his request.
4.
By letter dated
January 18, 2000, the complainant informed the respondent that he believed
that the respondent had a responsibility to get a copy of the report and
provide it to him.
5.
It is found that
after seeking the advice of counsel and by letter dated February 23, 2000, the
respondent informed the complainant that the subject of the report objected to
its disclosure and that pursuant to §1-214(c), G.S., the respondent was
barred from disclosing the report to the complainant.
6.
By letter dated
February 23, 2000, and filed on February 29, 2000, the complainant appealed to
this Commission alleging that the respondent violated the Freedom of
Information (“FOI”) Act by failing to comply with his request.
7.
Section 1-210(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.”
8.
Section 1-212(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
. . . .”
9.
It is found that the
requested report is a public record within the meaning of §1-210(a), G.S.,
which report was submitted for in-camera inspection and has been
identified as in-camera document #s FIC 2000-094-1 through
FIC2000-094-10.
10.
The respondent
contends that, while the respondent department has no objection to the
disclosure of the records, it believed that §1-214, G.S., required him to
provide the subject of the report with notice of the complainant’s request
and an opportunity to object to the report's disclosure because the report
contains personal information regarding the subject, Mrs. Downey.
The respondent further maintains that after having received Mrs. Downey’s
timely objection, he was required by statute to withhold the report.
11.
Section
1-210(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 . . . .”
12.
Section 1-214(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 . . . ;”
and
§1-214(c), G.S., provides in relevant part that:
“.
. . 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 . . . .”
13.
It is found that the
report is a “personnel” or “similar” file within the meaning of
§1-210(b)(2), G.S.
14.
It is found that
respondent received from the subject of the report a written objection to the
disclosure of the requested report in accordance with the provisions of
§1-214(c), G.S.
15.
At
the hearing on this matter, the intervenor, Mrs. Downey, argued that
disclosure of the report would be an invasion of her personal privacy because
the report contains information that is very personal.
The intervenor further argued the author of the report conducted his
interviews and wrote the report in his capacity as an employee of the Employee
Assistance Program (“EAP”). The
respondent argued that because the EAP is a confidential assessment,
counseling and referral service, she had a reasonable expectation of privacy
that should be honored by this Commission.
16.
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. 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
respondent 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.
18.
It is found that the
respondent failed to make the appropriate legal determination, which is a
prerequisite to providing notice to employees under §1-214(b), G.S. [formerly
§1-19(b), G.S.].
19.
Furthermore, after
careful in-camera review of the report, it is found that the report
pertains to the conduct of the public business and was prepared at the behest
of the Department of Social Services to address issues brought to the
attention of the Affirmative Action and Human Resources division by employees
of the respondent department regarding the management style of Mrs. Downey.
Therefore, it is found that the report does pertain to a legitimate
matter of public concern.
20.
It is also found that
disclosure of the report may undermine Mrs. Downey’s position as an
authority figure in the respondent department and deepen an existing divide
between the employees of the respondent department creating a view that one
side or the other has “won”. However,
it is further found that there is nothing in the report of any nature that
would warrant a finding that disclosure of the report would be highly
offensive to a reasonable person.
21.
It is therefore
concluded that disclosure of the report would not be an invasion of Mrs.
Downey’s personal privacy within the meaning of §1-210(b)(2), G.S., as
construed by Perkins, supra.
22.
With respect to the
intervenor’s expectation of privacy, in Kureczka v. Freedom of
Information Commission, 228 Conn. 271, 277 (1994), the Supreme Court ruled
that “the Commission cannot be barred from ordering disclosure of
information that it has otherwise properly found not to constitute an invasion
of privacy simply because of the erroneous determination by a government
agency that such information should be confidential and its representations to
that effect.”
23.
It is therefore
concluded that the respondents violated the disclosure provisions of
§1-210(a), G.S., and its duties under §1-214(b), G.S.
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 complainant with a copy of the requested report as described in paragraph 2 of the findings, above.
Approved by Order of the Freedom of Information Commission at its regular meeting of
August 9, 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:
James D. Goodwin
15 Trout Brook Circle
Newington, CT 06111
Communications
Specialist, State of Connecticut, Department of Social Services,
Public and Government Relations Unit
c/o Atty. Patrick B. Kwanashie
Assistant Attorney General
55 Elm Street, PO Box 120
Hartford, CT 06141-0120
Marjorie Downey
c/o Atty. Kathleen M. Brennan
157 Fox Hill Drive
Rocky Hill, CT 06067
__________________________
Melanie R. Balfour
Acting Clerk of the Commission
FIC2000-094FD/mrb/08/10/00