In the Matter of a Complaint by                        Final Decision


Jay Lewin,




            against              Docket #FIC 93-279


New Milford Director of Finance,


                        Respondent                  March 23, 1994


            The above-captioned matter was heard as a contested case on January 3, 1994, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The original caption for this case has been changed to correctly identify the respondent in this 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.         It is found that on September 17 and 23, 1993, the complainant requested that the respondent provide him with certain information.


            3.         Specifically, it is found that in his September 17, 1993 request, the complainant asked a series of questions relating to the base salary, grade level, overtime, compensatory time, salary increases and position upgrades for Marian Heck, one of the respondent's employees (hereinafter "salary and promotions").


            4.         As part of his September 17, 1993 inquiry the complainant also requested the weekly, monthly or yearly "average" of Mrs. Heck's earned overtime and compensatory time, as well as information comparing the number of upgrades Mrs. Heck received to the number awarded to the respondent's other employees.


            5.         While the Freedom of Information (hereinafter "FOI") Act, does not require a public agency to answer questions, in the spirit of open government, at all times material, the respondent construed the complainant's September 17, 1993 request as one for access to the respondent's records containing the information necessary to answer the complainant's questions.


Docket #FIC 93-279                           Page Two


            6.         In his September 23, 1993 request, the complainant sought access to telephone records for a specified number and "any other number that may now or ever has been accessible from the office of [Marian Heck]."


            7.         It is found that the respondent never notified Mrs. Heck of the complainant's records requests, and never treated the records requests as requests for information contained in "personnel or medical and similar files" within the meaning of either 1-19(b)(2) or 1-20a(b), G.S.


            8.         Nevertheless, it is found that on or about September 23, 1993, Mrs. Heck filed with her collective bargaining representative a notice of objection to disclosure of information pertaining to her "wages, compensatory time, upgrades and job performance."


            9.         It is found that solely in reliance upon Mrs. Heck's objection, the respondent, by letter dated September 24, 1993, notified the complainant that he had received Mrs. Heck's objection filed pursuant to 1-20a(c), G.S., and he could not disclose the requested information "unless ordered to do so by the Freedom of Information Commission."


            10.       At the hearing on this matter Mrs. Heck was represented by her collective bargaining representative who requested and was granted intervenor status at the hearing for purposes of presenting testimony.


            11.       It is found that the records at issue are public records within the meaning of 1-18a(d) and 1-19(a), G.S.


            12.       The intervenor contends that the subject records are exempt from disclosure pursuant to 1-19(b)(2), G.S., as personnel records the disclosure of which would constitute an invasion of personal privacy.


            13.       It is found that the records concerning Mrs. Heck's salary and promotions are primarily maintained as payroll records within the respondent's department.


            14.       It is found that the respondent does not maintain records reflecting the "average" amounts of overtime and compensatory time earned by Mrs. Heck.


            15.       It is also found that the respondent does not maintain records which rank or otherwise compare the number of upgrades received by Mrs. Heck to those received by other employees.


Docket #FIC 93-279                           Page Three


            16.       Similarly, it is found that while the respondent does maintain telephone records as invoice records for which his office is responsible for making the necessary payments, the respondent does not maintain telephone records for Mrs. Heck individually, but rather maintains telephone records for the telephone lines located in the office where Mrs. Heck works.


            17.       Therefore, it is found that the respondent cannot produce telephone records that identify Mrs. Heck or anyone else in her office as the caller for any telephone call made from the office where Mrs. Heck works.


            18.       In any event, it is concluded that the records at issue are public records and not exempt as "personnel or medical and similar files," within the meaning of 1-19(b)(2), G.S.


            19.       It is also concluded that disclosure of the subject records would not constitute an invasion of personal privacy within the meaning of 1-19(b)(2), G.S., because their disclosure would not be highly offensive to the ordinary reasonable person and the information is of legitimate public concern.  Perkins v. FOIC, 228 Conn. 158 (1993).


            20.       It is therefore concluded that 1-20a(b), G.S., is not applicable to the records at issue.


            21.       At the hearing on this matter the complainant requested the imposition of a civil penalty against Mrs. Heck's union.


            22.       Neither Mrs. Heck nor her collective bargaining entity has requested or been granted party status in this case.  Moreover, this Commission has no jurisdiction over non-public agencies, and Mrs. Heck's union is not a public agency as defined by 1-18a(a), G.S.


            23.       The respondent concedes that he failed to comply with the complainant's records request solely because he believed that 1-20a(c), G.S. prohibited him from doing so.


            24.       Nevertheless, it is concluded that the respondent failed to provide the complainant with access to, and copies of those documents responsive to his records requests in violation of 1-15 and 1-19(a), G.S.


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


Docket #FIC 93-279                           Page Four


            1.         The respondent shall forthwith provide the complainant with access to those existing records which are responsive to the complainant's September requests.  Specifically, the respondent shall provide the complainant with access to the records more clearly identified in paragraphs 1, 2, 4, 7, 8, 10 and 11 of the complainant's September 17, 1993 request, and the telephone records identified in the complainant's September 23, 1993 request.


            2.         In complying with paragraph 1 of this order, above, the respondent need not conduct research or create documents for the complainant.


Approved by Order of the Freedom of Information Commission at its regular meeting of March 23, 1994.


                                    Elizabeth A. Leifert

                                    Acting Clerk of the Commission


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Mr. Jay Lewin

P.O. Box 603

Sherman, CT 06784


New Milford Director of Finance

c/o Daniel E. Casagrande, Esq.

301 Main Street

Danbury, CT 06810



                                    Elizabeth A. Leifert

                                    Acting Clerk of the Commission