FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

John Gauger, Jr., Joseph Cadrain and Richard Westervelt,  

Complainants

 

against

Docket #FIC 1996-465

Kenneth H. Kirschner, Commissioner, State of Connecticut, Department of Public Safety; Dawn Carnese, Legal Advisor, State of Connecticut, Department of Public Safety; and Lt. David Werner, Commanding Officer, Troop "B", State of Connecticut, Department of Public Safety, Division of State Police,  

Respondents

April 9, 1997

The above-captioned matter was heard as a contested case on February 19, 1997, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

After consideration of the entire record, the following facts are found and conclusions of law are reached:

1. The respondents are public agencies within the meaning of 1-18a(a), G.S.

2. By letters dated August 21, 1996 and September 6, 1996, the complainants requested of the respondents "access to":

a) the time records for Trooper J. Bement for the period from October 20, 1995 to October 27, 1995;

b) all complaints, internal and external, against Trooper J. Bement; and

c) the minutes of or other records relating to any meeting at which Trooper J. Bement, his political activities, or an incident involving Trooper J. Bement and the complainants Joseph Cadrain and Richard Westervelt was discussed or appeared on the agenda.

3. By letter dated September 11, 1996, the respondents denied the complainants’ requests for all the records described at paragraph 2, above, on the grounds that Trooper J. Bement’s collective bargaining representative had filed an objection to disclosure of any of the records.

4. By letter dated October 2, 1996, and filed with the Commission on October 3, 1996, the complainants appealed to the Commission alleging that the respondents violated the Freedom of Information Act by denying the complainants access to the records described at paragraph 2, above.

5. It is found that on February 18, 1997, one day before the hearing in this matter, at the request of Trooper J. Bement, his collective bargaining representative withdrew the objection to disclosure of the records described at paragraph 2, above, and that the respondents on the same date furnished to the complainants all of said records in existence (comprising the time records and complaints described in paragraph 2a) and 2b), respectively, but not any records as described in paragraph 2c) which, it is found, do not exist.

6. Section 1-19(a), G.S., states in pertinent part:

all records maintained or kept on file by any public agency…shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records….

7. Section 1-20a(b), G.S., the section providing for objection to disclosure of the personnel or medical and similar files of employees of a public agency, states in pertinent part:

Whenever a public agency receives a request to inspect or copy records contained in any of its employees' personnel or medical and similar files and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency shall immediately notify in writing (1) each employee concerned and (2) the collective bargaining representative, if any, of each employee concerned. Nothing herein shall require an agency to withhold from disclosure the contents of personnel or medical files and similar files when it does not reasonably believe that such disclosure would legally constitute an invasion of personal privacy. [emphasis added.]

8. However, 1-20a(c), G.S., also provides:

A public agency which has provided notice under subsection (b) of this section shall disclose the records requested unless it receives a written objection from the employee concerned....Each objection filed under this subsection shall [contain]..a statement...that...there is good ground to support it and that the objection is not interposed for delay. Upon the filing of an objection as provided in this subsection, the agency shall not disclose the requested records unless ordered to do so by the freedom of information commission….

9. It is concluded that in determining whether "the agency reasonably believes that disclosure of such records would legally constitute an invasion of privacy" pursuant to 1-20a(b), G.S., the appropriate test is that set forth in Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993). The test requires that two elements be met: first, that the information sought does not pertain to legitimate matters of public concern, and second, that such information is highly offensive to a reasonable person.

10. The Commission finds that the records described in paragraphs 2a) and 2b), above, are clearly legitimate matters of public concern. Accordingly, applying the Perkins test that requires a finding as to each of its two requirements in order to hold an invasion of personal privacy, the respondents could not reasonably have believed that disclosure of such records would legally constitute an invasion of personal privacy for purposes of 1-20a(b), G.S.

11. Therefore, it is concluded that the respondents’ failure to provide the complainants with prompt access to the records described in paragraphs 2a) and 2b), above, violated the provisions of 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 Kirschner shall review his agency’s compliance with requests for public documents and study the level of staffing necessary to perform the legal evaluation and meet the notice requirements of 1-20a(b), G.S.

2. The respondent Kirschner shall file a report with this Commission summarizing the results of the review and study mandated by paragraph 1 of the order, above, within sixty days of the mailing of notice of the final decision herein.

Approved by Order of the Freedom of Information Commission at its regular meeting of April 9, 1997.

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission

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:

John Gauger, Jr., Joseph Cadrain and Richard Westervelt
c/o Barry Boodman, Esq.
PO Box 8158
Stamford, CT 06905-8158

Kenneth H. Kirschner, Commissioner, State of Connecticut, Department of Public Safety; Dawn Carnese, Legal Advisor, State of Connecticut, Department of Public Safety; and Lt. David Werner, Commanding Officer, Troop "B", State of Connecticut, Department of Public Safety, Division of State Police
c/o Henri Alexandre, Esq.
Assistant Attorney General
110 Sherman Street
Hartford, CT 06105

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission

FIC1996-465/FD/eal/04221997