FIC2000-348

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Bradshaw Smith,
		Complainant
	against		Docket #FIC 2000-348
Office of the Vice Chancellor for Information Services, State of Connecticut, University of Connecticut; and State of Connecticut, University of Connecticut,
		Respondent	February 28, 2001

The above-captioned matter was heard as a contested case on July 27, 2000, at which time the complainant and the respondents appeared 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.

2. By letter dated May 29, 2000 to the respondents, the complainant requested to inspect “all applications, resumes, etc for:

a) search #00A213 (IMLS Project Cataloguer);

b) search #00A327 (Doc. Delivery/ILL Ordering Asst. [FT]);

c) and search # 00A327 (Doc. Delivery/ILL Ordering Asst. [PT]).”

3. It is found that the respondents denied the complainant’s request claiming the records requested were confidential.

4. By letter dated and filed on June 28, 2000, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his request to inspect the records described in paragraph 2, above.

5. 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 inspect such records promptly during regular office or business hours . . . 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 consist of recruitment material which includes: the notice that the position is available and that applications are being accepted; requests for interviews; resumes, applications and recommendations; ranking of those interviewed; and the letter offering the positions to the selected applicants.

7. It is found that the requested records are public records within the meaning of §1-210(a), G.S.

8. The respondents contend that the requested records are exempt from disclosure because they are “personnel files” or “similar files” the disclosure of which would constitute an invasion of personal privacy within the meaning of §1-210(b)(2), G.S.

9. 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 . . . .”

10. 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.

11. It is found that the requested records are “personnel” files or “similar files” within the meaning of §1-210(b)(2), G.S.

12. The respondents contend that there is no legitimate matter of public concern with respect to the requested records because the records concern employment positions at the University of Connecticut’s library that involve no contact with members of the public. The respondents also contend that the disclosure of the requested records would be highly offensive to a reasonable person because there is a climate in the job market and an expectation among job applicants that information contained in a job application remain confidential. The respondents further contend that disclosure of the requested records would put applicants at risk of losing their present jobs because their present employers may terminate them in retaliation upon discovering they were looking for other employment.

13. It is found that there is nothing in the statute or in Perkins that requires information sought by a request for employment records to relate to an employment position having contact with the public for such information to be a legitimate matter of public concern.

14. Moreover, it is found that the requested records pertain to the manner in which the respondents conducted their search and selected candidates for three public employee positions and as such the records pertain to a matter of the public’s business.

15. It is therefore concluded that the requested records pertain to legitimate matters of public concern.

16. It is found that the respondents made every attempt to keep the application information confidential upon the request of the applicants and as a matter of policy. It is further found, however, that such attempts and requests do not render the requested records highly offensive to a reasonable person within the meaning of Perkins, supra.

17. Furthermore, 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.”

18. It is found that disclosure the requested records, and the information contained therein, would not be highly offensive to a reasonable person.

19. It is therefore concluded that disclosure of the requested records would not be an invasion of personal privacy within the meaning of Perkins, supra, and that the requested records are not exempt from disclosure under §1-210(b)(2), G.S.

20. It is also concluded that the respondents violated the disclosure provisions of §1-210(a), G.S., by failing to provide the complainant with access to inspect the requested records described in paragraph 2, above.

21. Notwithstanding the findings in paragraphs 19 and 20, above, at the hearing in this matter, the complainant agreed to copies of the requested records with the names of the applicants redacted.

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 complainant with a copy of the requested records described in paragraph 2 of the findings, above, free of charge.

2. In complying with the order in paragraph 1, above, the respondents may redact the names of the unsuccessful applicants.

Approved by Order of the Freedom of Information Commission at its regular meeting of February 28, 2001.

_________________________________________

Petrea A. Jones

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:

Bradshaw Smith

23 Ludlow Road

Windsor, CT 06095

Office of the Vice Chancellor for Information Services

State of Connecticut

University of Connecticut

c/o Paul M. Shapiro, Esq. and

Paul S. McCarthy, Esq.

Assistant Attorneys General

UCONN - Box U-177

605 Gilbert Road

Storrs, CT 06269-1177