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FREEDOM OF INFORMATION COMMISSION |
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In
the Matter of a Request |
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Advisory Opinion #73 |
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Town Clerk of Fairfield, Applicant |
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On January 25, 1989, the Commission considered and agreed to respond to the request for an advisory opinion filed by the Town Clerk of Fairfield.
In her request, the applicant states that her office receives requests from members of the public and from such groups as the American Legion for copies of military discharge records. Under Conn. Gen. Stat. §12-93, any person claiming an exemption from property tax under Conn. Gen. Stat. §§12-81 and 12-82 by reason of military service must provide satisfactory proof of such service. Proof may include originals or certified copies of honorable discharge papers. §12-93 also requires town clerks to record discharge papers in full. The applicant notes that under federal law, access to these records is limited when the records are in the custody of federal agencies.
The applicant seeks the Commission's opinion as to whether municipal clerks in Connecticut are obliged under the Freedom of Information ("FOI") Act to disclose to the public the military discharge papers they record pursuant to Conn. Gen. Stat. §12‑93.
Conn. Gen. Stat. §1‑19(a) provides in pertinent part:
Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency…shall be public records and every person shall have the right to inspect or to receive a copy of such records….
Although federal law limits access to military discharge papers in the custody of federal agencies, that law does not address disclosure of those records when they are in the custody or possession of non-federal agencies. Furthermore, the Commission is unaware of any federal law or state statute that removes military discharge papers from the category of public records under §1-19(a), when such records are in the custody or possession of municipal clerks. Therefore, it is the Commission's opinion that neither federal law nor state statute supersedes the FOI Act's internal disclosure and nondisclosure rules with respect to the records at issue.
The Commission believes that there is only one internal exemption in the FOI Act that might conceivably permit municipal clerks to withhold the records in question. That exemption is found in Conn. Gen. Stat. §1‑19(b)(2) and states that nothing in the FOI Act shall be construed to require disclosure of
personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.
For this exemption to apply, a twofold test must be met. Hartford v. FOI Commission, 201 Conn. 421, 431 (1986). First, the records in question must constitute personnel, medical or similar files. Id. at 431-32. In this regard, similar files "encompass only files similar in nature to personnel or medical files." Id. at 432, n. 11. Second, if the first part of the test is met, for the exemption to apply, disclosure must also be found to constitute an invasion of personal privacy. Id. at 432.
Although military discharge papers may be kept by the Department of Defense and similar federal agencies for personnel, medical or similar purposes, it is the Commission's opinion that they do not constitute personnel, medical or similar files when recorded and kept by municipal clerks pursuant to Conn. Gen. Stat. §12-93. To the contrary, the Commission believes that they are records voluntarily submitted by claimants to prove the merit of their claims for tax exemption. Indeed, the Commission believes that the statutory requirement that such papers be recorded in full by municipal clerks evidences a legislative intent that they be available as public records so the taxpayers who must bear the financial consequences of tax exemptions can determine for themselves, or even contest, the validity of a claim for exemption.
Because the first prong of the §1-19(b)(2) test has not been met, it is unnecessary to determine whether disclosure of the subject records would constitute an invasion of personal privacy under the circumstances presented. Suffice it to say that it is for the legislature to determine whether municipal clerks should record copies of discharge papers in full. If it believes that the public interest is better served by protecting some perceived privacy interests of tax exemption claimants, it merely has to amend the law to require that the clerks not record such papers in full. It could then require that the clerks abstract from such papers the limited information necessary to establish a claim. Or perhaps it could forego entirely the requirement for recording discharge information and mandate instead that the clerks certify that satisfactory proof of military service and honorable discharge has been duly submitted.
In light of the foregoing, it is the Commission's opinion that municipal clerks in Connecticut are obliged under the FOI Act to disclose to the public the military discharge papers they record pursuant to Conn. Gen. Stat. §12-93.
By Order of the Freedom of
Information Commission
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Curtis Cofield, Chairman of
of the Freedom of Information
Commission
Dated: ___________________
Ordered:_________________
Karen Haggett,
Clerk of the Commission