FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Valerie Finholm and The Hartford Courant,
against Docket #FIC 95-252
Commissioner, State of Connecticut, Department of Children and Families,
Respondent May 22, 1996
The above-captioned matter was heard as a contested case on January 23, 1996, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. A.F.S.C.M.E. Local #2663, the collective bargaining representative for four of the Department of Children and Families (hereinafter "DCF") employees whose records are the subject of the complainants' request, was made a party to these proceedings at its request.
At the May 22, 1996 Commission meeting during which the Commission considered this matter, an unnamed administrator whose records are also the subject of the complainants' request, was granted intervenor status upon submission in camera of the administrator's name, by an attorney representing the administrator.
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. During a telephone conversation and by letter sent via facsimile transmission on July 21, 1995, the complainants requested that the respondent provide them with "the names and records of DCF workers disciplined in the case involving the death of Emily Hernandez."
3. By letter dated July 28, 1995, the respondent denied the complainants' request because she believed that "there [were] extraordinary reasons to protect the safety of DCF employees and their families from endangerment that may result from publishing their names."
4. By letter dated and filed July 28, 1995, the complainants appealed to the Commission alleging that the respondent violated the Freedom of Information ("FOI") Act by denying their request.
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5. It is found that on March 13, 1995, Emily Hernandez, a nine month old child (hereinafter "child") whose family had recently been investigated by DCF, died as a result of child abuse.
6. It is found that on March 14, 1995, the Governor established an independent panel to review the child's case referred to in paragraph 7, above, and determine whether her death could have been prevented.
7. It is found that the independent panel referred to in paragraph 8, above, found that DCF failed to adequately protect the child, and DCF's internal review of the panel's report resulted in the discipline of five DCF employees.
8. It is found that the names and disciplinary information sought by the complainants as described in paragraph 2, above, is contained in personnel records maintained by the respondent's department, which records are public records within the meaning of 1-18a(d) and 1-19(a), G.S. (hereinafter "requested records").
9. The respondent claims that she refused to disclose the requested records in order to protect the safety of the employees whose records are at issue, because the child's family is known to be violent.
10. It is found that no known threats have been made to the DCF employees whose records are at issue.
11. It is concluded that a speculative generalized concern for the safety of DCF employees whose records are at issue does not provide an exemption to the disclosure requirements of the FOI Act.
12. At the hearing on this matter, the respondent also claimed that the requested records are exempt from disclosure pursuant to 1-19(b)(2), G.S.
13. It is found, however, that although the respondent claimed that 1-19(b)(2), G.S., is applicable to the subject records, she failed to notify the subject employees of the complainant's records request in accordance with the notice provisions set forth in 1-20a(b) and (c), G.S.
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14. Section 1-19(b)(2), G.S., provides that:
"Nothing in [the FOI Act] shall be construed to require the disclosure of ... (2) personnel or medical and similar files the disclosure of which would constitute an invasion of personal privacy."
15. Disclosure constitutes an invasion of personal privacy under 1-19(b)(2), G.S., only when the information sought by a request does not pertain to a legitimate matter of public concern and is highly offensive to a reasonable person. Perkins v. Freedom of Information Commission, 228 Conn. 158 (1993).
16. It is found that the identities of, and the disciplinary action taken against certain public employees for their failure to protect a child who had recently been referred to DCF, is a legitimate matter of public concern.
17. Consequently, it is not necessary for the Commission to consider whether disclosure of the requested records would be highly offensive to a reasonable person.
18. It is concluded that the requested records are not exempt from disclosure pursuant to 1-19(b)(2), G.S.
19. The respondent further maintains that even if the requested records are not exempt from disclosure under 1-19(b)(2), G.S., portions of them may be exempt pursuant to 17a-28(b), G.S.
20. Section 17a-28(b), G.S., provides:
"Notwithstanding the provisions of section 1-19, 1-19a or 1-19b, records maintained by the department [of children and families] shall be confidential and shall not be disclosed."
21. Section 17a-28(a)(5), G.S., defines "records" for purposes of 17a-28(b), G.S., as:
[I]nformation created or obtained in connection with the department's child protection activities or activities related to a child while in the care or custody of the department, including information in the registry of reports to be maintained by the commissioner pursuant to subsection (g) of 17a-101, provided records which are not created by the department are not subject to disclosure, except as provided pursuant to subsection (c), (i), or (k) of this section."
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22. It is found, and the respondent conceded at the hearing on this matter, that DCF's personnel records are not within the category of records protected from disclosure by 17a-28(b), G.S., as defined in 17a-28(a)(5), G.S.
23. It is further found, however, that certain portions of the requested records may contain information created or obtained in connection with DCF's child protection activities, and that such portions are not subject to disclosure under the FOI Act pursuant to 17a-28(b), G.S.
24. It is concluded that by failing to provide the complainants with prompt access to inspect or copy the requested records, with the exception of those portions containing information created or obtained in connection with DCF's child protection activities, the respondent violated 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. The respondent shall forthwith provide the complainants with access to inspect or copy the requested records of the DCF employees disciplined in connection with the death of Emily Hernandez.
2. In complying with paragraph 1 of the order, above, the respondent may redact any portion of the requested records containing information created or obtained in connection with DCF's child protection activities, in accordance with 17a-28(b), G.S.
3. Henceforth, the respondent shall strictly comply with the requirements of 1-19(a), G.S.
4. The Commission notes that the independent panel charged with investigating the death of the child found that "the confidentiality statutes for DCF and the agencies with which it interacts are barriers to the effective protection of children."
The Commission agrees with that finding and continues to urge the legislature to review the broad grants of confidentiality afforded to DCF with respect to its records of child protection activities.
Approved by Order of the Freedom of Information Commission at its regular meeting of May 22, 1996.
Elizabeth A. Leifert
Acting Clerk of the Commission
Docket #FIC 95-252 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:
Valerie Finholm and The Hartford Courant
285 Broad Street
Hartford, CT 06115
Commissioner, State of Connecticut, Department of Children and Families
c/o Michael J. Besso, Esq.
Assistant Attorney General
110 Sherman Street
Hartford, CT 06105
Jason W. Cohen, Esq.
Gagne & Associates
1260 Silas Deane Highway
Wethersfield, CT 06109
Susanne D. McNamera, Esq.
19 Bassett Street
New Britain, CT 06051
Elizabeth A. Leifert
Acting Clerk of the Commission