FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
against Docket #FIC 92-122
Deputy Commissioner, State of Connecticut, Department of Mental Retardation,
Respondent March 10, 1993
The above-captioned matter was heard as a contested case on October 6, 1992, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
Docket #s FIC 92-121, Anthony Muhammad v. Southbury Training School, FIC 92-123, Anthony Muhammad v. Abuse Investigation Division, State of Connecticut, Office of Protection and Advocacy, and FIC 92-124, Anthony Muhammad v. Connie Stanley, Hearing Officer [sic], State of Connecticut, Department of Mental Retardation, were consolidated for hearing with the above-captioned matter.
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 1-18a(a), G.S.
2. On December 23, 1991, the complainant made a written request to the respondent for a copy of the internal investigation report and evaluation of the professional conduct of Gina Furuno (hereinafter "evaluation").
3. By letter of reply dated January 27, 1992, the respondent acknowledged receipt of the complainant's December 23, 1991 request, and informed the complainant that his request had been forwarded to the Attorney General's office for review and consideration.
Docket #FIC 92-122 Page 2
4. On March 7, 1992, the complainant made a second written request to the respondent, but this time for a copy of the evaluation only.
5. By letter of complaint filed with the Commission on April 9, 1992, the complainant alleged that the respondent failed to comply with his December 23, 1991 and March 7, 1992, requests for a copy of the evaluation.
6. By letter of reply dated October 2, 1992, the respondent informed the complainant that in addition to the 1-19(b)(2), G.S., claim of exemption, the evaluation would not be disclosed because the request was one in a series of requests related to the complainant's pending arbitration proceeding.
7. It is found that at the time of the complainant's requests Ms. Furuno was the respondent's mental retardation unit facilities director.
8. The respondent maintains that the evaluation is exempt from disclosure under 1-19(b)(2), G.S., "... because it concerns personnel or medical files, the disclosure of which would constitute an invasion of privacy."
9. Specifically, the respondent argues that there may have been a promise of confidentiality given to Ms. Furuno which creates an expectation of privacy in the contents of the evaluation.
10. It is found that the evaluation is kept by the Commissioner of Connecticut's Department of Mental Retardation and is therefore a public record within the meaning of 1-18a(d), G.S.
11. Section 1-19(b)(2), G.S., in relevant part exempts from disclosure "personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy."
12. The respondent concedes that the evaluation is not maintained as part of Ms. Furuno's personnel file.
Docket #FIC 92-122 Page 3
13. Neither Ms. Furuno nor her representative appeared at the hearing in this contested case.
14. It is found that the respondent failed to prove that the evaluation is a personnel, medical or similar file within the meaning of 1-19(b)(2), G.S.
15. In addition, it is found that, although not proven to have been given, any alleged assurance or promise of confidentiality by the respondent to Ms. Furuno, neither provides an exemption to the disclosure of the evaluation, nor establishes, in itself, the reasonableness of an expectation of privacy.
16. Moreover, in the absence of explicit legal authority for the confidentiality of any information contained in the evaluation, it is further found that any such assurance is contrary to public policy.
17. Therefore, it is concluded that the respondent failed to prove that 1-19(b)(2), G.S., is applicable to the evaluation.
18. The respondent concedes that the evaluation is not related to the complainant's grievance or pending arbitration.
19. It is therefore concluded that the evaluation is not a "record pertaining to strategy and negotiations with respect to pending claims or pending litigation" within the meaning of 1-19(b)(4), G.S.
20. Thus it is concluded that the respondent violated the open records provisions of 1-15 and 1-19, G.S., when it failed to promptly provide the complainant with a copy of the requested evaluation.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent shall, within ten (10) days of the date of mailing of the notice of final decision in this case, provide the complainant with a copy of the evaluation. The respondent shall bear the cost of copying and mailing the record to the complainant.
Docket #FIC 92-122 Page 4
2. In complying with paragraph 1 of this order, the respondent may redact or delete the names of, or references to individuals other than the complainant and Gina Furuno, contained in the evaluation.
3. Henceforth, the respondent shall fully comply with the open records provisions of 1-15 and 1-19, G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of March 10, 1993.
Debra L. Rembowski
Acting Clerk of the Commission
Docket #FIC 92-122 Page 5
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:
226 Worth Street
Bridgeport, CT 06605
Deputy Commissioner, State of Connecticut, Department of Mental Retardation
c/o Asst. Atty. Gen. James P. Welsh
110 Sherman Street
Hartford, CT 06105
Debra L. Rembowski
Acting Clerk of the Commission