FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
William C. Rado, Jr.,
against Docket #FIC 92-80
Office of the Chief State's Attorney, State of Connecticut Division of Criminal Justice,
Respondent January 27, 1993
The above-captioned matter was heard as a contested case on June 23, 1992 and July 13, 1992, 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 #91-377, William C. Rado v. Office of the Chief State's Attorney, State of Connecticut Division of Criminal Justice.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent is a public agency with respect to its administrative functions, within the meaning of 1-18a(a) and 1-19c, G.S.
2. By letter of complaint filed on March 3, 1992, the complainant appealed to the Commission, alleging no response by the respondent to his February 3, 1992 request for access to certain administrative records.
3. It is found that the complainant by letter dated February 3, 1992 asked to review all administrative records of Mr. Thomas Brady and Mr. Michael DiLullo during the period of May 1985 to December 1988.
4. It is found that Brady and DiLullo were employed by the respondent as inspectors during the period of time for which their attendance records are sought by the complainant.
5. It is found that by letter dated March 24, 1992 the respondent denied the complainant's request, claiming that the respondent was unable to determine which records the complainant sought, that the records might reveal information pertaining to the respondent's investigative function, and that the requests implicated the privacy interests of the persons who were the subject of the complainant's request, which persons had objected to disclosure.
Docket #FIC 92-80 Page 2
6. It is found that Brady objected to disclosure of the records on March 20, 1992, and DiLullo objected on March 17, 1992.
7. It is also found that the Connecticut State Employees Association objected to to disclosure of records concerning DiLullo, a member of that bargaining unit.
8. It is found that the complainant by letter dated March 28, 1992 clarified his request as limited to the attendance records of the two employees.
9. It is found that attendance records are kept by the respondent on three documents:
a. Attendance Card, form DCJ 55.2 NEW 10/86 ("Attendance Card");
b. Payroll Attendance Report, form DCJ-55 Rev. 9/86 ("Payroll Report"); and
c. Bi-Weekly Attendance Report Compensatory Time Earned, form DCJ-55.1 Rev. 1/87 ("Compensatory Time Report").
10. It is found that the Attendance Card indicates for each individual employee his or her attendance record for each day of a calendar year.
11. It is also found that codes on the Attendance Card indicate the reasons for absences and for payment for time not actually worked.
12. It is found that the reasons for absences and payment coded on the Attendance card are: sick time, vacation, workers' compensation, compensatory time taken or earned, funeral or illness in family, holiday, military field training or special military leave, personal leave, medical appointments, authorized and unauthorized leaves of absence without pay, and leaves of absence with pay (special days off by official proclamation; jury duty or subpoena; in-service training course; heat, cold, snow, ice shutdown per appropriate approval; time to take state examination; and other circumstances for which prior approval was granted).
13. It is found that the Payroll Report lists, for a two-week period, all employees from a particular office or unit of the respondent, reporting by code the amount and category of leave taken by each employee.
14. It is found that the codes and categories of leave reported on the Payroll Report are the same as those on the Attendance Report.
Docket #FIC 92-80 Page 3
15. It is found that the Compensatory Time Report lists, for a two-week pay period, all employees from a particular office, reporting the compensatory time each earned.
16. It is found that the information reported in connection with the compensatory time earned consists of the case or docket number, the charges, the dates, the hours worked, the signature of the employee and the supervising attorney approving the time, and the necessity for the assignment (what was done, why it couldn't be done during regular work hours, and why another agency couldn't do it).
17. Section 1-19c, G.S., limits the Commission's jurisdiction over the respondent as follows:
For the purpose of subsection (a) of section 1-18a, the division of criminal justice shall not be deemed to be a public agency except in respect to its administrative functions.
18. The respondent maintains that its "administrative functions" are limited to such areas as purchasing and ordering supplies; providing copies of records of personnel policy, of directives regarding the legal interpretation of court decisions, and of training manuals; its determinations of whether to permit charitable organizations to solicit its employees; and its records of insurance company annuities as part of employee benefit plans.
19. The Commission takes administrative notice of Black's Law Dictionary (5th ed.), which defines "administrative" as:
Connotes or pertains to administration, especially management, as by managing or conducting, directing, or superintending, the execution, application or conduct of persons or things. ...
20. Black's Law Dictionary also defines "administration" as:
Management or conduct of an office or employment; the performance of the executive duties of an institution, business, or the like. In public law, the administration of government means the practical management and direction of the executive department, or of the public machinery or functions, or of the operations of the various organs or agencies. Direction or oversight of any office, service, or employment. ...
21. It is found that the maintenance of attendance records and reasons for absences is the managing and superintending of the conduct of persons, the practical management of employment, and the direction and oversight of an office and of employment.
Docket #FIC 92-80 Page 4
22. It is therefore concluded that the maintenance of attendance records and reasons for absences is an administrative function within the meaning of 1-19c, G.S.
23 The respondent nonetheless maintains that disclosure of certain of the information on the attendance and payroll records would result in the disclosure of investigative information.
24. Specifically, the respondent maintains that it might be possible indirectly to determine from payroll and compensatory time records what employees were working on which cases, such as grand jury investigations.
25. It is concluded that nothing in 1-19c, G.S., permits an exemption from disclosure of administrative records which possibly might indirectly reveal certain investigatory information.
26. It is therefore concluded that none of the records described in paragraphs 8 through 15, above, is exempt from disclosure pursuant to 1-19c, G.S.
27. At the request of the respondent, the Commission takes administrative notice of its record and final decision in Docket #FIC 87-356, James S. Patten vs. Commanding Officer of the State of Connecticut Department of Public Safety, Division of State Police, and Chief State's Attorney of the State of Conecticut.
28. The complainant in Patten requested:
a. any division of state police records, investigative files or reports, daily logs, applications, daily activity sheets, hearing transcripts, internal affairs report or investigations, civilian complaints, disciplinary hearings or procedures, statements, transcripts, documents or other written material containing or indexed under the name of James S. Patten regarding the Torrington Grand Jury investigation,
b. and, as assigned to the Torrington Grand Jury, budget requests, expenditure estimates and accountings, compilations of figures of expenditures and worksheets, weekly time sheets, daily time sheets, and personnel payroll records, including vacation, compensation, sick days and overtime. [emphasis added]
Docket #FIC 92-80 Page 5
29. In Patten, the Commission concluded in relevant part:
10. It is also found that parts of each of the records described in paragraph 2b, above, reveal investigative information and thus pertain to functions of the division of criminal justice that are not administrative.
11. It is concluded that to the extent these records reveal investigative information, the respondent chief state's attorney is not a public agency with respect to them, and the Commission lacks jurisdiction to rule on their disclosability.
30. It is found that in Patten, the complainant's request was expressly directed to records of a particular grand jury investigation, not the records of particular public employees.
31. It is also found that the risk of disclosing investigative information which was present under the facts in Patten is not reasonably present in this case.
32. It is also found that the specific issue of the administrative function of maintaining attendance records in and of themselves, and of the specific investigatory information claimed to be contained in them, was not addressed in Patten.
33. Although the Commission believes that the facts in Patten and the present case are sufficiently different to warrant a different result, the Commission also, to avoid confusion, concludes that so much of Patten as is inconsistent with this decision is overruled.
34. With regard to the question of what order of relief would be appropriate in this case, it is found that the Payroll Report contains no information not also contained in the Attendance Record, other than an identification of the employee's office or unit, which the respondent believes could be used to match employees with confidential investigations.
35. It is also found that the Compensatory Time Report contains no information not also contained in the Attendance Report, other than the case or docket number of the employee's assignment and detail on the necessity of the assignment, which the respondent similarly believes could be used to match employees with confidential investigations.
36. The respondent concedes, however, that the attendance information contained on the Attendance Record alone would not identify the employee's work on a particular investigation.
37. It is found, therefore, that disclosure of only the attendance portion of the Attendance Card would reasonably answer the complainant's request for the attendance records of the two employees, and would also remove any reasonable concern by the respondent that the records could cumulatively be used to interfere with or prejudice its investigatory function.
Docket #FIC 92-80 Page 6
38. The Commission in its discretion therefore declines in this case to order disclosure of the Payroll Reports and Compensatory Time Reports for the two employees.
39. It is found that the Attendance Card is a public record within the meaning of 1-18a(d) and 1-19(a), G.S.
40. It is also concluded that the Attendance Card is contained within a personnel or similar file within the meaning of 1-19(b)(2), G.S.
41. It is found that Brady and DiLullo have expressed a subjective expectation of privacy in the Attendance Cards.
42. It is concluded, however, that society is not prepared to accept as reasonable an expectation of privacy in the hours a public employee works, the general descriptions (such as sick leave, vacation, workers' compensation, as more fully listed in paragraph 12, above) of reasons the employee is paid for not working, and whether the employee receives unpaid leaves of absence.
43. It is therefore concluded that there is no reasonable expectation of privacy in the Attendance Cards of the subject employees.
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 to the complainant copies of the Attendance Cards of Thomas Brady and Michael DiLullo for 1985, 1986, 1987 and 1988.
2. In complying with paragraph 1 of this order, the respondent may redact any information contained in the location or comments sections of the records at issue.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 27, 1993.
Debra L. Rembowski
Acting Clerk of the Commission
Docket #FIC 92-80 Page 7
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:
William C. Rado, Jr.
45 Academy Hill Road
Derby, CT 06418
Office of the Chief State's Attorney, State of Connecticut, Division of Criminal Justice
c/o Assistant Attorney General Martin Rosenfeld
110 Sherman Street
Hartford, CT 06105
Debra L. Rembowski
Acting Clerk of the Commission