FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Chris Powell and Journal Inquirer,
against Docket #FIC 95-125
Commissioner, State of Connecticut, Department of Social Services,
Respondent March 13, 1996
The above-captioned matter was heard as a contested case on November 8, 1995, at which time the complainants and the respondent appeared and presented testimony, exhibits and argument on the complaint. Tristram Carpenter, a service representative from the American Federation of State, County and Municipal Employees ("AFSCME"), Connecticut Council 4, was present on behalf of the disciplined employees who are the subjects of the records at issue in this case. However, Mr. Carpenter, indicated that he was not seeking party or intervenor status for those employees.
One of the subject employees, who was identified only as "John Doe" during the hearing on the contested case, was represented by Attorney Richard Conti. There was a conditional grant of intervenor status to "John Doe" in this case by the hearing officer, provided the actual name of the employee was submitted to the Commission by Mr. Conti in accordance with its in camera procedure. Attorney Conti failed to provide the Commission with his client's name as agreed.
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 by letter dated March 23, 1995, the complainants requested access to the respondent's records identifying and discussing employees who misused their access to computerized government records documenting the salary of Kenneth Decko, the president of the Connecticut Business and Industry Association, and who were disciplined or resigned as a result of their misconduct.
Docket #FIC 95-125 Page Two
3. It is found that by letter dated April 3, 1995, the respondent acknowledged receipt of the complainants' records request, and informed them that pursuant to 1-20a(b) and 1-20a(c), G.S., they intended to notify the subject employees ("disciplined employees"), and then await a reply. The respondent further informed the complainants that existing records ("disciplinary records"), had to be reviewed by the attorney general's office before a decision could be made about disclosure.
4. By letter of complaint dated April 13, 1995, and filed with this Commission on April 17, 1995, the complainants alleged that the respondent failed to comply with their records request.
5. It is found that the disciplinary records are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
6. It is found that five of the respondent's employees were disciplined in connection with the unauthorized access and use of Decko's salary information.
7. The respondent claims that the names and identities of the disciplined employees, as well as the contents of any disciplinary records, are exempt from disclosure as an invasion of the personal privacy of the subject employees, in accordance with the provisions of 1-19(b)(2), G.S.
8. Specifically, the respondent maintains that the names and other identifying information of the disciplined employees are contained in "similar files" within the meaning of 1-19(b)(2), G.S.
9. The respondent contends further that the disciplined employees were notified of the complainants' records request and objected to disclosure.
10. The disciplined employees did not appear at the hearing on this matter.
11. Section 1-19(b)(2), G.S., provides that disclosure shall not be required of "personnel, medical or similar files, the disclosure of which would constitute an invasion of personal privacy."
12. It is found that the respondent conducted an investigation that produced probable cause to proceed with pre-disciplinary proceedings against five of its employees, and ultimately four employees received suspensions from employment, while a fifth employee was terminated from employment.
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13. It is found that the discipline records generated from the respondent's investigation into the Decko complaint are "similar files" within the meaning of 1-19(b)(2), G.S.
14. Perkins v. FOI Commission, 228 Conn. 158 (1993), sets forth the standard for the exemption contained in 1-19(b)(2), G.S. The claimant has a twofold burden of proof:
First, [he] must establish that the files in question are within the categories of files protected by the exemption, that is, personnel, medical or 'similar' files. Second, [he] must show that disclosure of the records 'would constitute an invasion of personal privacy.'
15. The Court in Perkins further instructs:
[T]he invasion of personal privacy exception of 1-19(b)(2) precludes disclosure, therefore, only when the information sought by a request does not pertain to legitimate matters of public concern and is highly offensive to a reasonable person. [Emphasis added.]
16. It is found that documentation of public employees' misconduct, the actions or activity constituting such misconduct, and the discipline, if any, meted out, pertain to legitimate matters of public concern.
17. It is found further that the respondent failed to prove that disclosure of the disciplinary records would be highly offensive to a reasonable person.
18. Further, no evidence was presented to support the respondent's claims that the names and identities of the disciplined public employees are exempt from disclosure under 1-19(b)(2), G.S.
19. It is therefore concluded that disclosure of the disciplinary records would not constitute an invasion of personal privacy of the disciplined employees, within the meaning of 1-19(b)(2), G.S.
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20. The respondent further claims that because the discipline that was meted out resulted from negotiation with the collective bargaining representatives of the disciplined employees, the records sought are necessarily records of collective bargaining within the meaning of 1-19(b)(9), G.S.
21. Section 1-19(b)(9), G.S., provides that disclosure is not required of records, reports and statements of strategy or negotiations with respect to collective bargaining.
22. The American Heritage Dictionary, Second College Edition, defines "collective bargaining" as "[n]egotiation between the representatives of organized workers and their employer ... to determine wages, hours, rules, and working conditions."
23. It is found that the respondent and the disciplined employees negotiated an agreement for discipline whereby the disciplined employees agreed that they would accept more severe disciplinary action, and forego any challenge to the discipline meted out, in exchange for the respondent's agreement not to pursue criminal prosecution, or release their names.
24. It is found that while a public employee is free to bargain over employment-related issues, including disciplinary issues, a public agency may not bargain away the public's right to know under Connecticut's Freedom of Information ("FOI") Act. Moreover, neither 1-19(b)(2), nor 1-19(b)(9), G.S., were intended to shield the misconduct of public employees in the performance of their duties.
25. In this case, it is found that the names and identities of the five disciplined employees do not constitute "records, reports or statements of strategy or negotiations with respect to collective bargaining," within the meaning of 1-19(b)(9), G.S., and consequently are not exempt from public disclosure under that section of the FOI Act.
26. It is further found that the disciplinary records did not result from "strategy or negotiations with respect to collective bargaining," within the intended meaning of 1-19(b)(9), G.S., and consequently are not exempt from public disclosure under that section of the FOI Act.
27. Accordingly, under the facts of this case, the respondent has failed to prove the applicability of any exemption to disclosure of the disciplinary records at issue.
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28. It is therefore concluded that the respondent's failure to provide the complainants with copies of the disciplinary records is a 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:
1. Forthwith, the respondent shall provide the complainants with a copy of the requested disciplinary records, as more fully described in paragraph 2 of the findings, above, free of charge, and furnish to the complainants an affidavit stating that the records provided constitute the only records responsive to the complainants' request.
2. In complying with paragraph 1 of this order, the respondent may redact the identities and personally identifiable information of individuals who provided statements, but were not disciplined, in connection with the Decko matter.
3. Henceforth, the respondent shall strictly comply with the public records requirements set forth in 1-15 and 1-19(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of March 13, 1996.
Elizabeth A. Leifert
Acting Clerk of the Commission
Docket #FIC 95-125 Page Six
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:
Chris Powell and Journal Inquirer
306 Progress Drive
P.O. Box 510
Manchester, CT 06045-0510
State of Connecticut
Department of Social Services
25 Sigourney Street
Hartford, CT 06106-5033
AFSCME, Council #4
c/o Jason Cohen, Esq.
J. William Gagne & Associates
1260 Silas Deane Highway
Wethersfield, CT 06109
Elizabeth A. Leifert
Acting Clerk of the Commission