FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on July 26, 2010, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.  By letter of complaint filed March 10, 2010, the complainant appealed to the Commission, alleging that the respondents violated §1-214(c), G.S., disclosing an internal investigation of her after she had objected to disclosure.

 

3. It is found that the respondents conducted an internal investigation of the complainant.

 

4.  It is found that the internal investigation substantiated the allegations against the complainant, and that the Fairfield Police Commission then began termination proceedings.

 

5.  It is found that, while the termination proceedings were ongoing, a reporter for the Fairfield Minuteman Newspaper made a request to the chief of the respondent police department on January 29, 2010 for any and all information relating to the internal investigation and termination hearing concerning the complainant.

 

6.  It is found that no respondent meaningfully reviewed the requested records at that time to determine if disclosure would legally constitute an invasion of personal privacy. 

 

7.  It is found that, notwithstanding such lack of review, the deputy chief of the respondent police department provided the complainant with a standard form notifying her of the request, as it apparently does with every request it receives regarding personnel files.

 

8.  It is found that the complainant and a representative of her collective bargaining unit completed and returned the form on February 1, 2010, objecting to disclosure.

 

9.  It is found that the chief of the respondent police department, after reviewing the requested records, and on the advice of counsel that disclosure would not legally constitute an invasion of personal privacy, released a redacted copy of the internal investigation to the requesting reporter.  A newspaper article was published as a result on February 9, 2010.

 

10.  It is found the complainant, on February 22, 2010, requested that the respondents provide her with any records from the FOI Commission ordering disclosure, any records indicating her withdrawal of her objection, any records advising the town that it was exempt from the provisions of §1-214(c), G.S., and the oath taken by the chief of police.

 

11.  It is found that none of the records described in paragraph 10, above, exist, except for the requested oath, which was provided.

 

12.  Section 1-214(b) and (c), G.S., provides in relevant part:

 

(b)  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, provided such notice shall not be required to be in writing where impractical due to the large number of employees 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.  [Emphasis added.]

 

      (c)  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.  Each objection filed under this subsection shall be on a form prescribed by the public agency, which shall consist of a statement to be signed by the employee or the employee's collective bargaining representative, under the penalties of false statement, that to the best of his knowledge, information and belief there is good ground to support it and that the objection is not interposed for delay.  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 pursuant to section 1-206.  Failure to comply with a request to inspect or copy records under this section shall constitute a denial for the purposes of section 1-206.  …  [Emphasis added.]

 

13.  It is concluded that the respondent police department violated §1-214(b), G.S., when it notified the complainant of the request and gave her an opportunity to object before the department had made a judgment that it believed that disclosure of the records would legally constitute an invasion of privacy.

 

14.  As a natural consequence of this initial failure to review the documents, the respondent police department then violated §1-214(c), G.S., when it subsequently disclosed the records over the objection of the complainant without any order from this Commission.

 

15.  However, the respondent police department could have permissibly released the records in the first instance, before soliciting an objection from the complainant, if it had, as required by statute, initially determined that disclosure would not legally constitute an invasion of privacy.

 

16. The respondents, and other public agencies, should take notice of the importance of reviewing records for an invasion of privacy before they give subject employees the right to object to disclosure.

 

 

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

1.  Henceforth the respondents shall strictly comply with the requirement of §1-214(b), G.S., to review personnel records to determine whether disclosure would constitute an invasion of privacy before providing the subject of the records an opportunity to object. 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 23, 2011.

 

__________________________

Cynthia A. Cannata

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:

 

Diane Krahm

c/o Charles L. Kurmay, Esq.

1995 Main Street

Stratford, CT  06615

 

First Selectman, Town of Fairfield; Chief, Police Department, Town of Fairfield,

Police Department, Town of Fairfield; and Town of Fairfield

Johanna G. Zelman, Esq. and Michael J. Rose, Esq.

Rose Kallor, LLP

750 Main Street, Suite 606

Hartford, CT  06103

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-171/FD/cac/2/28/2011