FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
against Docket #FIC 93-128
State of Connecticut, Office of Adult Probation,
Respondent February 16, 1994
The above-captioned matter was heard as a contested case on September 15 and 30, 1993, at which times the complainant, the respondent and Louis Borelli, the probation officer who is the subject of the requested records appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
At the September 15, 1993 hearing, Louis Borelli requested and was granted party status by the undersigned hearing officer.
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. By memorandum dated April 8, 1993, the complainant requested from the respondent a copy of any record of disciplinary action taken against probation officer Louis Borelli.
3. By memorandum dated April 27, 1993, the respondent denied the complainant's request described in paragraph 2, above, maintaining that the results of the investigation concerning Borelli were confidential.
4. By letter dated May 4, 1993 and filed May 5, 1993, the complainant appealed the respondent's denial of the requested records to this Commission.
5. It is found that in March 1993, the complainant, who is also a probation officer, filed a complaint with the respondent against Borelli, concerning Borelli's use of the "COLLECT" computer system which complaint was thereafter investigated by the respondent.
Docket #FIC 93-128 Page 2
6. It is also found that at the conclusion of the respondent's investigation described in paragraph 5, above, a district manager of the respondent met with and discussed the matter with Borelli. No other action was taken against Borelli as a result of such investigation.
7. It is also found that during the course of the meeting described in paragraph 6, above, the district manager made written notes regarding that meeting.
8. The respondent maintained that the notes taken by the district manager during the course of his meeting with Borelli were the only records of any disciplinary action against Borelli, and that such notes are exempt from disclosure pursuant to 1-19(b)(1), G.S.
9. It is found that the district manager's notes described in paragraph 7, above, were placed by him in a file he describes as his "supervisor's file," and that such notes may be used in the future to compile a personnel evaluation for Borelli.
10. It is concluded that the written notes described in paragraph 7, above, are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
11. It is further concluded however, that the written notes constitute preliminary notes within the meaning of 1-19(b)(1), G.S., that are permissibly exempt from disclosure.
12. It is further found however, that in addition to the notes described in paragraph 6, above, a report exists in letter form that was prepared by the respondent's Deputy Director of Administration for the Director of the respondent, which documents the steps taken by the deputy director to investigate the complaint against Borelli and information gathered during the investigation, along with a recommendation (hereinafter "report"). A copy of the report was copied to the district manager who retained it in his supervisor's file, as referred to in paragraph 9, above, and who, in fact, received the report prior to his meeting with Borelli, as described in paragraph 6, above.
13. The respondent maintained at the September 15, 1993 hearing that it did not believe the report described in paragraph 12, above, was within the scope of the complainant's request for records of "disciplinary action."
14. At the September 15, 1993 hearing the parties agreed to include the subject report as within the scope of the complainant's request.
15. It is concluded that the report is a public record
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within the meaning of 1-18a(d) and 1-19(a), G.S.
16. At the September 30, 1993 hearing, Borelli objected to disclosure of the subject report, maintaining that disclosure would result in an invasion of his personal privacy; and that the report was exempt from disclosure pursuant to 1-19(b)(3)(F), G.S.
17. After the September 30, 1993 hearing on this matter, the respondent submitted the subject report for in camera inspection. With the permission of the hearing officer, the respondent redacted portions of the report that contained the identity of or personally identifying information pertaining to a third party who had been the subject of a criminal matter the record of which was subsequently erased pursuant to the provision of 54-142a(a), G.S.
18. Section 1-19(b)(2), G.S., provides for the nondisclosure of "personnel, medical or similar files the disclosure of which would constitute an invasion of personal privacy."
19. It is found that the subject report, although not physically located in Borelli's personnel file, contains information relative to Borelli's performance as a parole officer that is similar to information contained in a personnel file.
20. It is therefore concluded that the subject report is a personnel or similar file within the meaning of 1-19(b)(2), G.S.
21. The respondent maintains that disclosure of the report would be embarrassing to Borelli; that its deputy director created the letter with the expectation that it would be kept confidential; and that pursuant to a provision in Borelli's collective bargaining agreement the letter should be witheld from disclosure.
22. It is found that the subject report consists of two pages and largely exonerates Borelli of any misconduct with respect to his use of the COLLECT computer system. Further, the letter does not contain any personal information that would prove embarrassing to a reasonable person or that would provide a basis for a reasonable expectation of privacy. Consequently, it is concluded that disclosure of the requested report would not constitute an invasion of Borelli's right to personal privacy within the meaning of 1-19(b)(2), G.S.
23. It is further found that the provisions of a collective bargaining agreement neither provides an exemption to the disclosure of public records under the Freedom of Information (hereinafter "FOI") Act nor does it establish in itself, the reasonableness of an expectation of privacy.
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24. Section 1-19(b)(3)(F), G.S., provides that nothing in the FOI Act shall require disclosure of:
(3) records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if disclosure of said records would not be in the public interest because it would result in the disclsosure of...(F) uncorroborated allegations subject to destruction pursuant to section 1-20c.
25. It is found that Borelli failed to prove the applicability of 1-19(b)(3)(F), G.S., to the subject report; and it is concluded therefore that such provision does not provide a basis for witholding it from disclosure.
26. It is concluded therefore that the respondent violated the provisions of 1-15(a) and 1-19(a), G.S., by failing to provide the complainant with a copy of the report described in paragraph 12, above.
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 the complainant with a copy of the report described in paragraph 12, of the findings, above.
2. In complying with paragraph 1, of the order above, the respondent may redact any information that would identify the third party, described in paragraph 17, of the findings, above.
Approved by Order of the Freedom of Information Commission at its special meeting of February 16, 1994.
Elizabeth A. Leifert
Acting Clerk of the Commission
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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:
Mr. Joseph DiMartino
10 Papa Lane
North Haven, CT 06473
State of Connecticut, Office of Adult Probation
c/o Martin Libbin, Esq.
Office of the Chief Court Administrator
231 Capitol Avenue
Hartford, CT 061006
Mr. Louis Borrelli
Office of Adult Probation
867 State Street
New Haven, CT 06511
Elizabeth A. Leifert
Acting Clerk of the Commission