FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Krystin Bratina,

 

 

Complainants

 

 

against

 

Docket #FIC 1997-307

Chief, Hartford Fire Department, City of Hartford,

 

 

Respondents

March 11, 1998

        The above-captioned matter was heard as a contested case on December 17, 1997, at which time the complainant and the respondent 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 respondent is a public agency within the meaning of 1-18a(1), G.S. (prior to October 1, 1997, 1-18a(a), G.S.).

        2. By letter dated March 31, 1997, the complainant requested that the respondent provide her with copies of:

a. any and all records containing, reflecting, referring to or related to written or oral complaints, grievances, administrative charges, or lawsuits in state or federal court alleging that fire department employees had discriminated against, retaliated against, harassed, injured or mistreated female fire department employees or former employees on account of their sex; and

b. any and all records containing, reflecting, referring to or related to written or oral complaints, grievances, administrative charges, or lawsuits in state or federal court alleging that fire department employees had harassed, injured or mistreated female members of the public on account of their sex.

        3. By letter dated April 2, 1997, the respondent denied the complainant’s request claiming 1-19(b)(2), 1-19(b)(4), 1-19(b)(10) and 1-19b(b)(1), G.S.

        4. By letter dated August 28, 1997, the complainant renewed her request as described in paragraph 2, above.

        5. By letter dated September 22, 1997 and filed on September 24, 1997, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information ("FOI") Act by denying her copies of the requested documents.

        6. It is found that the requested records are public records within the meaning of 1-18a(5), G.S. (prior to October 1, 1997, 1-18a(d), G.S.) and 1-19(a), G.S.

        7. Section 1-19(a), G.S., provides in relevant part:

[e]xcept as otherwise provided by any federal law or state statute, all records maintained…by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office…hours or to receive a copy of such records… in accordance with the provisions of section 1-15….

        8. Section 1-15(a), G.S., provides in relevant part that:

[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. The fee for any copy provided in accordance with the [FOI] act…by [municipal] public agencies, as defined in section 1-18a, shall not exceed fifty cents per page….

        9. The complainant’s requests described in paragraphs 2 and 4, above, were not limited by time in scope. It is found that, in response to the complainant’s requests, the respondent searched the corporation counsel’s computer database, which covered a time span of the last ten years. It is further found that such search yielded one litigation case and judgment which was responsive to the complainant’s requests described in paragraphs 2 and 4, above, and that such records were provided to the complainant at the time of the hearing. It is further found that a search of older records within the corporation counsel’s office would amount to research, which is not required by the FOI Act.

        10. It is found that further searches for records responsive to the complainant’s requests described in paragraphs 2 and 4, above, yielded:

a. two files related to complaints of discrimination which are located within the city’s personnel department offices; and

b. a file related to discipline of a firefighter, and a file related to a complaint by one firefighter against another firefighter, which are located within the city’s fire department offices.

        11. At the hearing, the respondent contended that two provisions of the FOI Act provide bases to withhold the records described in paragraph 10, above.

        12. Specifically, the respondent contends that 1-19b(b)(1), G.S., exempts the requested records from mandatory disclosure.

        13. Section 1-19b(b)(1), G.S., in relevant part states that:

[n]othing in the [FOI] Act shall be deemed in any manner to…affect the status of judicial records as they existed prior to October 1, 1975, nor to limit the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state….

        14. It is found that, both at the time of the complainant’s request and at the time of the hearing on this matter, the complainant and the respondent’s employer, the Hartford Fire Department, were parties to an administrative proceeding before the Connecticut Commission on Human Rights & Opportunities ("CHRO").

        15. The respondent contends that, since an action was pending before CHRO, 1-19b(b)(1), G.S., precludes the complainant from obtaining records under the FOI Act and that, with respect to whether the complainant may acquire the records, the parties are bound solely by the fact-finding rules of CHRO.

        16. Section 1-19b(b)(1), G.S., however, does not provide the broad exemption from disclosure argued by the respondent. Chief of Police, Hartford Police Department v. Freedom of Information Commission, No. CV96-0561310, Sup. Ct., Judicial District of Hartford/New Britain (Aronson, J.) (July 30, 1997).

        17. The respondent did not offer evidence to show that the records described in paragraph 10, above, were at issue in the CHRO proceeding described in paragraph 14, above.

        18. It is found that the respondent failed to prove that release of the records described in paragraph 10, above, to the complainant would limit the rights of the litigants in the CHRO administrative proceeding described in paragraph 14, above.

        19. It is therefore concluded that 1-19b(b)(1), G.S., does not provide a basis to withhold the records described in paragraph 10, above.

        20. The respondent also contends that the requested records are exempt from disclosure by virtue of 1-19(b)(2), G.S.

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

        22. In Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (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 establish both of two elements: 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.

        23. It is found that the requested records are files similar to personnel files as those terms are utilized at 1-19(b)(2), G.S.

        24. It is found, however, that the respondent failed to prove that the records described in paragraph 10, above, do not pertain to legitimate matters of public concern or that disclosure of such records would be highly offensive to a reasonable person.

25. It is therefore concluded that the records described in paragraph 10, above, are not exempt from disclosure by virtue of 1-19(b)(2), G.S.

        26. The respondent contends that the two files described in paragraph 10.a., above, should not be disclosed because the complaints therein were filed under written assurances of confidentiality made by the city, and because release of such files would foster an unwillingness on the part of employees to complain about alleged discriminatory practices in the future.

        27. An agency cannot shield public records from disclosure simply by giving assurances of confidentiality, and such assurances cannot override a Commission finding that release of records would not constitute an invasion of privacy. Kuresczka v. Freedom of Information Commission, 228 Conn. 271, 280, 277 (1994). Moreover, it is found that the respondent’s argument regarding the chilling of future complaints is without foundation.

        28. The respondent failed to address, and therefore failed to prove, the applicability of either 1-19(b)(4), G.S., or 1-19(b)(10), G.S., to the subject records.

        29. It is concluded therefore that the respondent violated 1-19(a), G.S. and 1-15(a), G.S., by failing to promptly provide the complainant with copies of the records described in paragraphs 9 and 10, above.

        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 complainant with copies of the records described in paragraph 10 of the findings, above.

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

        Approved by Order of the Freedom of Information Commission at its regular meeting of March 11, 1998.

_________________________
Doris V. Luetjen
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:
Kristyn Bratina
c/o Attys. Peter Goselin and Deborah L. McKenna
Livingston, Adler, Pulda & Meiklejohn
557 Prospect Avenue
Hartford, CT 06105-2922

Chief, Hartford Fire Department, City of Hartford
c/o Atty. Karen K. Buffkin
Assistant Corporation Counsel
550 Main Street
Hartford, CT 06013

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-307/FD/tcg/03131998