FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on July 28, 2003, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  This case was consolidated for hearing with docket #FIC 2003-021, Robyn Adams and Waterbury Republican-American v. Director, Silas Bronson Library, City of Waterbury.  Leo Flanagan, the subject of the record requested in the two cases, and the respondent in FIC 2003-021, intervened as a party in this case, pursuant to §1-206(b)(1), G.S.  The report that is the subject of the complainant’s request was submitted for an in camera inspection.

 

            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 received and filed January 14, 2003, the complainant appealed to the Commission, alleging that the complainant denied his request for a copy of a report on the job performance of the library director.

 

3.  It is found that a group of employees of the Silas Bronson Library in Waterbury presented a letter of complaint to the respondent’s chief of staff Garret Casey regarding the management of the library by library director Leo Flanagan.

 

4.  The complaint described in paragraph 3, above, alleged mismanagement of, and a hostile work environment at, the library in several areas: misuse of library employees to assist a book sale by the “Friends of the Library;” unnecessary equipment purchases; improper hiring and promotion of employees; favoritism; and verbal insensitivity toward staff members.

 

5.  It is found that the respondent retained the law firm Shipman & Goodwin to conduct an investigation into the complaint described in paragraph 3, above.

 

6.  It is found that Shipman & Goodwin conducted an investigation from late October to late November 2002, billing the respondent for at least 100 hours of time, including at least 48 hours of witness interviews, at a total of cost of more than $18,000.00.

 

7.  It is found that the Shipman & Goodwin report was completed on November 22, 2002 and submitted to the respondent’s chief of staff.

 

8.  It is found that the complainant requested a copy of the report on or about December 17, 2002, when the respondent’s office presented the report to the library’s governing board of agents.

 

9.  It is found that the library director objected to disclosure of the report on December 23, 2002, and that the respondent therefore did not provide a copy to the complainant.

 

10.  It is found that the report consists of 15 pages of findings and recommendations, together with the original complaint described in paragraph 3, above, attached as an appendix.  Although the original complaint is attached to the in camera submission, a copy was also made a public exhibit in this case, and the complaint against the library director is not itself confidential or otherwise claimed to be exempt from disclosure.

 

11.  Section 1-200(5), G.S., provides:

 

    “Public records or files” means 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.

 

12.  Section 1-210(a), G.S., provides in relevant part:

 

    Except 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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

 

13.  It is found that the requested report is a public record within the meaning of §§1-200(5) and 1-210(a), G.S.

 

14.  At the hearing on this matter, the respondent provided the complainant with two portions of the report, consisting of the first full paragraph of page 5 through the end of page 5, and the final full paragraph of page 7 through the end of the partial paragraph beginning page 10.

 

15.  The respondent and the intervenor maintain that the remainder of the report is exempt from disclosure pursuant to §1-210(b)(2), G.S.

 

16.  Section 1-210(a), G.S., provides in relevant part:

 

Except 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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

 

17.  Section 1-210(b)(2), G.S., provides in relevant part that disclosure is not required of “[p]ersonnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.”

18.  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).  Specifically, under the Perkins test, the respondent must first establish that the files in question are personnel, medical or similar files.  Second, the respondent 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 respondent must establish both of two elements: first, that the information sought does not pertain to legitimate matters of public concern, and disclosure of such information is highly offensive to a reasonable person.

19.  It is found that the report is a personnel or similar file within the meaning of §1-210(b)(2), G.S.

20.  The complainant maintains that the information contained in the report pertains to legitimate matters of public concern.

21.  Specifically, the complainant points to the public’s legitimate concern with the operation of the library generally, which the intervenor and respondent do not contest; with the substantial expenditure of public funds on the investigation into the allegations against the director and the workplace environment; and with whatever  recommendations were made in the report concerning management of the library.

22.  However, the intervenor maintains that he had a legitimate expectation that the investigation and the resulting report would be confidential, because both his employment and the civil service regulations that apply to him provide that his yearly evaluation is to be conducted confidentially.

23.  In Chairman v. FOIC, 217 Conn. 193 (1991), our Supreme Court held that disclosure of an internal, departmental, personnel evaluation of a state’s attorney would constitute an invasion of privacy in part because the evaluation was conducted under appropriate confidential circumstances with the employee, thereby making such evaluation a matter that did not legitimately concern the public.

24.  The court in Chairman explained that: “[d]isclosing [personnel evaluations] would severely undermine the policy of full and frank exchange of information underlying the need for such reports”  Chairman, at 205 (Borden, J., concurring).

25.  One superior court decision has also concluded that evaluations conducted under appropriately confidential circumstances are not normally legitimate matters of public concern, and that therefore §1-210(b)(2) would exempt confidentially-conducted evaluations if disclosure would also be highly offensive to a reasonable person, because of the nature of the information set forth in the evaluation.  First Selectman v. FOIC, 25 Conn. L. Rptr. 170 (1999) (McWeeny, J.).

26.  It is found that director’s employment contract provides that the director and the respondent shall meet yearly for the purpose of reviewing the director’s performance.

27.  It is also found that the director’s employment contract provides that the director’s employment is governed by civil service rules and regulations, and that those rules and regulations are made a part of the contract.

28.  It is found that the applicable civil services rules and regulations provide that evaluations shall be made by the immediate supervisor of each employee, and that such performance evaluations shall be confidential.

29.  It is found that the director’s employment contract also provides that the director may be promoted, demoted or dismissed for cause not by the mayor, but by recommendation of the city’s civil service commission and the board of ethics reporting to the board of alderman.

30.  It is found that the director was only evaluated by the mayor in 1995, and did not, at least initially, understand that the Shipman & Goodwin investigation was to be a similar evaluation within the meaning of his contract or the civil service regulations.

31.  It is found that the Shipman & Goodwin investigation was not conducted by the director’s immediate supervisor, as contemplated by the civil service rule described in paragraph 28, above.

32.  Further, it is found that Shipman & Goodwin were retained to conduct the investigation in lieu of civil service personnel, who, pursuant to the intervenor’s employment contract, do not conduct his yearly evaluations, but rather conduct investigations that might lead to demotion or dismissal, as described in paragraph 29, above.

33.  Additionally, it is found that there was no evidence of a confidential “full and frank  exchange of information” between the mayor and the director, as might occur in a yearly evaluation.  Rather, the Shipman & Goodwin report is based on fact-finding interviews with a number of unnamed employees, including the director, conducted by a Shipman & Goodwin attorney.

34.  It is concluded that the Shipman & Goodwin investigation was an internal investigation into allegations of mismanagement and a hostile work environment, not a yearly evaluation of the intervenor’s job performance.

35.  Consequently, it is concluded that disclosure of the report is not governed by Chairman, above, since the report was not the result of an evaluation conducted under appropriately confidential circumstances. 

36.  The intervenor nonetheless maintains that while a parallel investigation into the library itself—a separate financial audit and investigation—is a legitimate matter of public concern, the  investigation into allegations against the library director is not.

37.  However, it is concluded that there is a legitimate public concern in the information contained in the report, which investigates allegations of mismanagement and the creation of a hostile work environment.  See, e.g., Rocque v. FOIC, 255 Conn. 651 (2001) (legitimate public concern in  information such as the date when and location where harassment allegedly occurred; a letter to the complainant from the assistant commissioner who investigated the complaint, seeking the complainant's cooperation; certain questions posed to witnesses as part of the department's investigation; portions of certain answers to those questions;  procedure in questioning witnesses; and the complainant's concern for job-related consequences from the alleged harassment).

38.  The intervenor additionally maintains disclosure of the report would be highly offensive to a reasonable person, because the contents of the report are highly damaging and inflammatory, particularly with regard to disclosure of what the intervenor terms “unsubstantiated allegations,” which the intervenor and the respondent argue will harm both of them.

39.  It is found that some of the allegations contained in section II.B of the report are inflammatory, and that some were not substantiated by the Shipman & Goodwin investigation.

40.  At the hearing, the complainant withdrew his request for the portion of the report described in paragraph 39, above, as these isolated allegations do not directly concern the overall management of the library.

41.  It is found that most of the remaining allegations are contained in the complaint itself, described in paragraph 3, above, which is not claimed to be exempt.

42.  It is also found that a significant  number of the  allegations were in fact substantiated, notwithstanding that a significant number either were not, or were determined to represent acceptable conduct.

43.  As to the remainder of the report, with the exception of the information described in paragraph 39, above, it is found that disclosure would not be highly offensive to a reasonable person.  While either the respondent or the city might suffer damage to their reputations as a result of disclosure, the information relates solely to the intervenor’s on-the-job management of the library staff and resources, and does not reflect any private facts that a person could reasonably expect to keep confidential. 

44.  As to the claim that the city will not be able to attract qualified applicants if it cannot rely on the provisions of its employment contracts and civil service regulations pertaining to confidential evaluations, it is noted that this decision concerns only an internal investigation conducted outside the yearly evaluation process. 

45.  It is concluded that the respondent violated §1-210(a), G.S., when he refused to provide any portions of the report to the complainant.

 

 

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 a copy of the Shipman & Goodwin report to the complainant.  In complying with this order, the respondent may redact section II.B of the report.

 

 

 

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 10, 2003.

 

 

 

___________________________________

Ann B. Gimmartino

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:

 

Hugh Curran

1579 Hamilton Avenue, Apt. A5

Waterbury, CT  06702

 

Mayor, City of Waterbury

c/o Dan Shaban, Esq.

Office of the Corporation Counsel

236 Grand Street

Waterbury, CT  06702

 

THE INTERVENOR IN THIS CONTESTED CASE IS:

 

Leo Flanagan

c/o Robert M. Opotzner, Esq. and

Laura A. Goldstein, Esq.

148 Deer Hill Avenue, PO Box 440

Danbury, CT  06813-0440

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

 

FIC/2003-020FD/abg/09/12/2003