FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

FINAL DECISION
Docket #FIC 1996-243
June 4, 1997

In the Matter of a Complaint by Joanne C. Tashjian, Complainant(s)
against
Personnel Officer, State of Connecticut, Workers’ Compensation Commission; and State of Connecticut, Workers’ Compensation Commission, Respondent(s)

The above-captioned matter was heard as a contested case on December 11, 1996, at which time the complainant 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. It is found that by letter to the respondent personnel officer dated May 21, 1996, the complainant requested a copy of all records relating to her October 10, 1995 complaint against Jeff Bragg, and records of any other complaints filed against him.

3. It is found that by letter to the complainant dated May 30, 1996, the respondents advised her that they believed that the requested records were exempt from disclosure in accordance with the provisions of 1-19(b)(1) and 1-19(b)(2), G.S., and that pursuant to 1-20a(b), G.S., they had notified Bragg of her request and were awaiting his reply.

4. It is found that on June 3, 1996, Bragg notified the respondent in writing of his objection to the disclosure of the requested records and that by letter dated June 10, 1996, the respondents informed the complainant that Bragg had objected to the disclosure of records relating to her complaint against him, and that with respect to her request for additional complaint records, there was "no written documentation of any other complaint."

5. By letter of complaint dated June 19, 1996, and filed with this Commission on June 21, 1996, the complainant appealed the respondents’ denial of her records request.

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

7. It is found that the respondents have in their possession records relating to the complainant’s complaint against Bragg, but no additional complaint records.

8. The respondents have submitted the subject records to the Commission for in camera inspection and the records have been designated as in camera record #s 96-243-1 through 96-243-7.

9. The respondents maintain that the subject records are exempt from disclosure under 1-19(b)(1) and 1-19(b)(2), G.S.

10. Section 1-19(b)(1), G.S., states in relevant part that disclosure shall not be required of:

. . . preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure. . . .

11. Section 1-19(c)(1), G.S., however, provides:

[n]otwithstanding the provisions of 1-19(b)(1), G.S., disclosure shall be required of (1) interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency.…

12. The respondents contend that a determination was made at the time of the complainant’s records request that the public interest in withholding disclosure of the subject records, in order to protect the name and identity of persons interviewed in connection with the Bragg complaint, clearly outweighed the public interest in disclosure.

13. It is found that in camera record # 96-243-5 is a signed letter from a witness and that in camera record #s 96-243-6 and 96-243-7 comprise a memorandum given to the chairman of the respondent commission concerning the complaint against Bragg.

14. It is therefore concluded that the records identified in paragraph 13, above, do not constitute preliminary drafts or notes within the meaning of 1-19(b)(1), G.S., and consequently are not exempt from disclosure under that provision.

15. It is also found that the in camera records identified in paragraphs 13, above, constitute intra-agency memoranda, letters, advisory opinions, recommendations and reports comprising part of the process by which governmental decisions and policies are formulated within the meaning of 1-19(c)(1), G.S.

16. It is therefore concluded that the records identified in paragraph 13, above, are not exempt from disclosure under 1-19(b)(1), G.S., by virtue of 1-19(c)(1), G.S.

17. It is found that in camera record #s 96-243-1, 96-243-2, 96-243-3 and 96-243-4 only are drafts or notes potentially subject to the 1-19(b)(1), G.S., exemption.

18. It is also found, however, that because the identities of the individuals who were interviewed as part of the complaint against Bragg are not exempt from disclosure under either 1-19(b)(1), G.S., as found above, or 1-19(b)(2), G.S., as found below, and therefore must be disclosed, the determination that disclosure of such identities would not be in the public interest cannot be accepted because such identities are otherwise a matter of public record.

19. Consequently, it is concluded that the records identified in paragraph 17, above, are also not exempt from disclosure under 1-19(b)(1), G.S.

20. Section 1-19(b)(2), G.S., permits the nondisclosure of "personnel or medical and similar files, the disclosure of which would constitute an invasion of personal privacy."

21. In Perkins v. FOIC, 228 Conn. 158 (1993), the Supreme Court set forth the test for the exemption contained in 1-19(b)(2), G.S. The claimant must first establish that the files in question are personnel, medical or similar files. Second, the claimant must show that disclosure of the records would constitute an invasion of personal privacy. In determining whether disclosure would constitute an invasion of personal privacy, the claimant must also establish that the information sought does not pertain to legitimate matters of public concern and that its disclosure would be highly offensive to a reasonable person.

22. The respondents contend that the subject records are kept in a locked file cabinet in the respondent personnel director’s office, and except for the respondent chairman, the respondent personnel director and the investigators, no one—including Bragg—has been permitted to review the records.

23. It is found that the subject records have either been made part of Bragg’s personnel file, or the records are the functional equivalent of personnel file information in that they were generated in connection with a personnel investigation, and subsequently relied on by the respondents to render a decision in the complaint against Bragg.

24. It is therefore concluded that the subject records constitute "personnel" or "similar" files within the meaning of 1-19(b)(2), G.S.

25. It is found that the disclosure of the subject records would not be highly offensive to a reasonable person.

26. It is also found that the subject records, which concern a public employee’s allegedly improper conduct on the job, the actions or activity constituting such impropriety, and the correctness of any discipline, if any, meted out, pertain to legitimate matters of public concern.

27. It is therefore concluded that disclosure of the subject records would not constitute an invasion of Bragg’s personal privacy and consequently such records are not exempt from disclosure under 1-19(b)(2), G.S.

28. It is further concluded that the respondents’ failure to promptly provide the complainant with a copy of the subject records violated the provisions of 1-15(a) 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. The respondents shall forthwith provide the complainant with a copy of in camera record #s 96-243 -1 through 96-243-7, inclusive.

2. Henceforth, the respondents shall strictly comply with the provisions of 1-15(a) and 1-19(a), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of June 4, 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:
Joanne C. Tashjian
PO Box 218
Pleasant Valley, CT 06063

Personnel Officer, State of Connecticut, Workers’ Compensation Commission; and State of Connecticut, Workers’ Compensation Commission
c/o Michael Giammatteo, Esq.
Assistant Attorney General
55 Elm Street
Hartford, CT 06106

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC 1996-243/FD/eal/06161997