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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Complainants |
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against |
Docket #FIC 2001-129 | |
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Police Commission, Town of Southington, |
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Respondent |
February 13, 2002 | |
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The above-captioned matter was heard as a contested case on June 14, 2001, at
which time the complainants and the respondent appeared, stipulated to certain
facts and presented testimony, exhibits and argument on the complaint.
Sergeant William T. Perry (“Perry”), a Southington Police
Department employee, whose records are at issue, did not appear at the hearing
in this matter. The Commission
takes administrative notice of the evidence and argument presented by Perry’s
counsel during the May 10, 2001 hearing in contested case docket # FIC
2001-180 James H. Smith and The Record Journal Publishing Company v.
Commissioner, State of Connecticut, Department Public Safety, Division of
State Police; and State of Connecticut, Department of Public Safety, Division
of State Police, which case addressed the disclosure of the same Internal
Affairs Investigation report at issue in this case.
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. It is found that during the latter part of November 2000, the respondent requested that the Department of Public Safety (“DPS”) conduct an Internal Affairs (“IA”) investigation of Sergeant William T. Perry (“Perry”) and specifically whether Perry violated any Southington police department rules, regulations and policies in light of Perry’s wife’s October 2000 arrest on drug/marijuana charges.
3. It is found that by letter dated January 30, 2000 (sic) the
complainants requested that the Southington police chief provide them with any
documents related to the IA investigation of Perry, including, but not limited
to, reports, letters, and notes of conversations (hereinafter “the
investigation records”). It is
also found that by letter dated February 8, 2001, the complainants requested
that the respondent provide them with the investigation records.
4. It is found that by letter dated February 12, 2001, the
chairman of the respondent acknowledged receipt of the complainants’
February 8, 2001 request and informed the complainants that disclosure of the
requested investigation records would “legally constitute an invasion of
privacy”, and that pursuant to §1-214(b), G.S., Perry and his collective
bargaining representative were notified of the request and had seven business
days from receipt of such notice to file a written objection to disclosure.
5. It is found that by letter dated February 20, 2001, the
respondent further informed the complainants that Perry and his collective
bargaining representative objected to the disclosure of the investigation
records and therefore the respondent would not provide such records to the
complainants pursuant to §1-214(c), G.S.
6. By letter dated February 27, 2001, and filed on February 28,
2001, the complainants appealed to the Commission alleging that the respondent
violated the Freedom of Information (“FOI”) Act by denying them access to
the investigation records.
7. Section 1-214(b), G.S., in relevant part, provides:
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.
8. Section 1-214(c), G.S., in relevant part, provides:
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, if any, within seven business days from the receipt by the employee or such collective bargaining representative of the notice or, if there is no evidence of receipt of written notice, not later than nine business days from the date the notice is actually mailed, sent, posted or otherwise given… 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….
9. Section 1-200(5), G.S., defines “public records” as:
any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.
10.
Section 1-210(a), G.S., further provides in relevant part:
[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.
11. It is found that the respondent maintains records that are responsive to the complainants’ request as described in paragraph 3, above.
12. It is concluded that the records maintained by the respondent and described in paragraph 11, above, are public records within the meaning of §§1-200(5) and 1-210(a), G.S.
13. Following the hearing in this matter, the respondent submitted the records at issue to the Commission for an in camera inspection, (hereinafter “in camera records” or “report”). The index accompanying the in camera records, indicate that the respondent claims that the in camera records are exempt from disclosure pursuant to §1-210(b)(2), G.S.
14. For identification purposes, the in camera records comprise 116 pages and have been designated IC# 2001-129-1A through 2001-129-23A (Southington notes, memo) and IC# 2001-129-1 through 2001-129-93 (Internal Affairs report).
15. It is found that the IA report was compiled by DPS in connection with its investigation into Perry’s conduct. The IA investigation was conducted between November 2000 and January 2001, following which the DPS issued the IA report containing findings, conclusions and recommendations. It is the DPS report, as well as a few other records generated after the completion of the IA investigation that are at issue in this complaint. The respondent requested that the DPS conduct the IA investigation since Perry is the son of Southington Police Chief William B. Perry (“Police Chief Perry”). The focus of the IA investigation was whether Perry violated any Southington police department rules, regulations and policies in light of his wife’s October 2000 arrest on drug/marijuana charges. Based on the IA report the respondent recommended that Perry be disciplined.
16. It is found that while the IA report is about Perry a few portions contain information about Perry’s wife, her family and medical history, Perry’s children, and the Perry home. The IA report also contains statements of Department of Children and Families (“DCF”) caseworkers, state police major crime squad officers, Police Chief Perry, Southington school personnel and Perry. The IA report further contains photographs of the Perry home, and the Internet version of certain Hartford Courant newspaper articles.
17. With respect to the respondent’s claim of exemption pursuant to §1-210(b)(2), G.S., such provision permits the nondisclosure of “personnel or medical files and similar files” the disclosure of which would constitute an invasion of personal privacy.”
18. The Commission takes administrative notice of the final decision in contested case docket #FIC 2001-251, Fred Radford v. Chief, Police Department, Town of Trumbull (January 2002), with respect to the discussion of §1-210(b)(2), G.S., and Perkins v. Freedom of Information Commission, 228 Conn. 158, (1993).
19. The Supreme Court set forth the test for the §1-210(b)(2), G.S., claim of invasion of privacy in Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993).
20. Specifically, under the Perkins test, 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 such information is highly offensive to a reasonable person.
21. It is found that the in camera records constitute “personnel or medical files and similar files” within the meaning of §1-210(b)(2), G.S.
22. It is found that with the
exception of the following specific portions of the in camera
records, the remaining portions pertain to legitimate matters of public
concern because the information contained therein concerns and implicates the
conduct of a police officer, and also discloses the process by which the DPS
and the respondent conducted the IA investigation:
IC# 2001-129-14, delete lines 1 and 2; IC# 2001-129-16 and IC# 2001-129-17, delete from “Hope” in second to last line on page 16 through the words “continued counseling” in first full paragraph on page 17; IC# 2001-129-17, delete last sentence of third full paragraph through the word “mother”; IC# 2001-129-18, delete names of children in paragraph 6; IC# 2001-129-19 paragraph 3, delete all after “diagnosed with” through end of paragraph; IC# 2001-129-21, delete first line of last paragraph through word “death” and delete last sentence of last paragraph as follows: delete from word “someone” through word “drugs”; IC# 2001-129-66, photo 29 only; IC# 2001-129-79 delete page.
23. It is also found that with the exception of the specific portions of the in camera records described in paragraph 22 above, disclosure of the remaining portions, though potentially embarrassing, is not “highly offensive” to a reasonable person.
24. It is therefore concluded that with the exception of the specific portions of the in camera records described in paragraph 22 above, disclosure of the remaining in camera records would not constitute an invasion of privacy, and therefore such records are not exempt from disclosure pursuant to §1-210(b)(2), G.S.
25. It is also found that portions of the in camera records contain Perry’s residential address and the statements of DCF employees and a “mandated reporter” relative to child abuse. Such portions are exempt from disclosure, pursuant to §§1-217(a)(2), 17a-28(b) and 17a-101k, G.S.
26. Section 1-217(a)(2),
G.S., provides, in relevant part that: “[n]o public agency may disclose,
under the Freedom of Information Act, the residential address of …a sworn
member of a municipal police department or a sworn member of the Division of
State Police within the Department of Public Safety”.
27. Consequently, it is concluded
that pursuant §1-217(a)(2), G.S., the respondent may withhold Perry’s
residential address from disclosure.
28. Section §17a-28(b), G.S., provides, in relevant part:
Notwithstanding the provisions of [the Freedom of Information Act], records maintained by the department [of Children and Families] shall be confidential and shall not be disclosed. Neither the commissioner nor any of his employees shall disclose, in whole or in part, the nature or content of any records of any person to any individual, agency, corporation or organization without the consent of the person, his attorney or his authorized representative, except as provided in subsections (c) and (d) of this section. Any unauthorized disclosure shall be punishable by a fine of not more than one thousand dollars or imprisonment for not more than one year, or both.
29.
Section 17a-101k, G.S., further provides in relevant part:
any … information relative to child abuse, wherever located,
shall be confidential subject to such regulations governing their use and
access as shall conform to the requirements of federal law or regulations.
Any violation of this section or the regulations adopted by the
commissioner [of DCF] under this section shall be punishable by a fine of not
more than one thousand dollars or imprisonment for not more than one year.
[Emphasis added.]
30. It is found that the following portions of the in camera records contain details about DCF employee and a “mandated reporter”contacts relative to child abuse and are therefore exempt from mandatory disclosure pursuant to §§17a-28(b) and 17a-101k, G.S.:
IC# 2001-129-3, delete lines 10 through 14 up to and including the word “referral”; IC# 2001-129-10, delete all after first sentence of paragraph 3 i.e. delete all after “6 years”; IC# 2001-129-11, delete all of first paragraph, and delete all after first sentence of paragraph 3 i.e. delete all after “7 ½ years”; IC# 2001-129-17, delete name and title of school official/ DCF mandated reporter and delete all of last paragraph; delete all references to the name and title of the school official/ DCF mandated reporter contained throughout the entire in camera records; IC# 2001-129-18, delete paragraphs 1 and 2 on page 18 through the word “required”; IC# 2001-129-20 delete fourth and fifth paragraphs through word “allegations” and delete first sentence of last paragraph through word “system”.
31. In sum, it is concluded that the respondent violated §1-210(a), G.S., when it failed to provide the complainants with access to inspect the in camera records, excluding those portions described in paragraphs 22, 27 and 30.
32. It is further concluded that the respondent did not violate §1-210(a), G.S., when it failed to provide the complainants with access to inspect those portions of the in camera records as described in paragraphs 22, 27 and 30.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Forthwith the respondent shall provide the complainants with access to inspect and/or receive a copy of the in camera records, excluding those portions as described in paragraphs 22, 27 and 30 of the findings, above.
Approved by Order of the Freedom of Information Commission at its regular meeting of February 13, 2002.
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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:
Police Commission,
Town of Southington
c/o Nicholas Grello, Esq.
Siegel, O'Connor, Schiff & Zangari, PC
150 Trumbull Street
Hartford, CT 06103
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-129/FD/paj/2/14/2002