FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on October 25, 2005, at which time the complainant and the respondent appeared, stipulated to certain facts 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 respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.  It is found that the complainant is an employee of the Department of Children and Families, and that she filed a workplace violence complaint regarding a fellow employee named John Moore with such department on March 18, 2004.  It is further found that, in response to such complaint, the respondent conducted an investigation.

 

3.  It is found that, on September 22, 2004, the respondent issued a letter of reprimand to John Moore, a copy of which the complainant received, and further, that the respondent established a protocol for any contacts between the complainant and Mr. Moore. 

 

4.  It is found that, on June 22, 2005, the complainant requested that the respondent provide her with copies of notes taken by interviewers during the investigation described in paragraph 2, above, and other communications regarding the complaint described therein. 

 

5.  It is found that the respondent denied the request described in paragraph 4, above, on July 18, 2005. 

6.  By letter of complaint dated July 25, 2005, and filed August 2, 2005, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act, by not providing her with copies of the records described in paragraph 4, above.  The complainant requested the imposition of a civil penalty against the respondent.  At the hearing in this matter, the complainant limited her request and complaint to the notes of two interviews of Mr. Moore [hereinafter “the requested records”]. 

 

7.  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…receive a copy of such records in accordance with section 1-212.” 

 

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 respondent maintains the requested records and that such records are public records within the meaning of §§1-210(a) and 1-212(a), G.S.

 

10.  The respondent contends that the requested records are exempt from mandatory disclosure pursuant to §1-210(b)(1), G.S.

 

11.  Section 1-210(b)(1), G.S., provides that nothing in the FOI Act shall require the disclosure of “preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.”

 

12.  In Shew v. Freedom of Information Commission, 245 Conn. 149 (1998), the Supreme Court ruled that “the concept of preliminary [drafts or notes], as opposed to final [drafts or notes], should not depend upon...whether the actual documents are subject to further alteration . . . .” but rather “[p]reliminary drafts or notes reflect that aspect of the agency’s function that precede formal and informed decision making . . . .  It is records of this preliminary, deliberative and predecisional process that. . . the exemption was meant to encompass” Id., at 165.

 

13.  It is found that the requested records are preliminary notes within the meaning of §1-210(b)(1), G.S.

 

 

14.  It is also found that the respondent determined that the public interest in withholding the requested records clearly outweighs the public interest in disclosure of such records, within the meaning of §1-210(b)(1), G.S.  

 

15.  Accordingly, it is concluded that the requested records fall within the exemption from mandatory disclosure set forth at §1-210(b)(1), G.S. 

 

16.  However, §1-210(e), G.S., provides in relevant part that: 

 

[n]otwithstanding the provisions of subdivision…(1)…of subsection (b) of this section, disclosure shall be required of…[i]nteragency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency….”

 

            17.  It is found that the respondent failed to prove that the requested records are not interagency or intra-agency memoranda or letters, advisory opinions, recommendations or reports comprising part of the process by which the decision to reprimand Mr. Moore was formulated. 

 

18.  Accordingly, it is concluded that the requested records are subject to mandatory disclosure by virtue of §1-210(e), G.S., and that the respondent violated the FOI Act, as alleged in the complaint. 

 

19.  The Commission declines to consider the imposition of a civil penalty in this matter. 

 

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 complainant with a copy of the requested records, at no charge. 

 

           

Approved by Order of the Freedom of Information Commission at its regular meeting of July 12, 2006.

 

________________________________

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:

 

Paula Dillon

c/o Joanna I. James, Union Representative

CSEA, Service Employees International Union,

Local 2001

760 Capitol Avenue

Hartford, CT 06106

 

Darlene Dunbar, Commissioner,

State of Connecticut, Department of

Children and Families

c/o Donald Shevchuk, Esq.

Principal Attorney

Department of Children and Families

One Grove Street, 4^th floor

New Britain, CT 06053

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-376FD/paj/7/12/2006