FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Ernie Cantwell and International
Association of Firefighters, Local
No. 1073,
Complainants
against Docket #FIC 1998-120
Director, Personnel Department,
City of Middletown,
Respondents October 14, 1998

     The above-captioned matter was heard as a contested case on June 23, 1998, at
which time the complainants and respondent appeared and presented testimony, exhibits
and argument on the complaint. Docket #FIC 1998-121, Ernie Cantwell and
International Association of Firefighters, Local 1073 v. Director, Personnel Department,
City of Middletown and Personnel Department, City of Middletown,
was consolidated
with the above-captioned matter for purpose of hearing. The records at issue were
inspected in camera.

     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.

     2. It is found that by letter dated April 16, 1998, the complainants requested that
the respondent provide them with a copy of the following records concerning the city of
Middletown (“city”) fire department examination for lieutenant (“examination”):

a) written and oral scores of all candidates;

b) names and departments of the individuals who served
on the oral examination panel; and

c) breakdown of the score that each oral examination panel
member gave to each candidate.

     3. It is found that by letter dated April 24, 1998 the respondent provided the
complainants with access to some of the requested records, however he denied the request
with respect to the records described in paragraph 2b) and 2c), above, indicating that the
city’s confidentiality policy precluded his disclosure of the names and departments of the
oral examination panel members without their permission, and that the breakdown of the
scores constituted exempt “scoring keys” under the Freedom of Information (“FOI”) Act.

     4. By letter dated April 28, 1998 and filed with the Commission on April 30,
1998, the complainants appealed to the Commission alleging that the respondent violated
the FOI Act by denying them a copy of the requested records.

     5. It is found that the records at issue are those described in paragraph 2b. and
2c., above.

     6. Section 1-18a(5), G.S., provides that:

"Public records or files" means any recorded data or
information relating to the conduct of the public's business
prepared, owned, used, received or retained by a public
agency, whether such data or information be handwritten,
typed, tape-recorded, printed, photostated, photographed or
recorded by any other method.

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

Except as otherwise provided by any federal law or state
statute, all records maintained or kept on file 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 or business hours or
to receive a copy of such records in accordance with the
provisions of section 1-15. Any agency rule or regulation,
or part thereof, that conflicts with the provisions of this
subsection or diminishes or curtails in any way the rights
granted by this subsection shall be void.

     8. It is found that the respondent maintains the records at issue, and such records
are public records within the meaning of 1-18a(5) and 1-19(a), G.S.

     9. It is also found that on June 19, 1998 the respondent provided the complainants
with a redacted copy of the oral examination panel grade sheet.

     10. The respondent contends that to disclose the names and the departments of
the oral examination panel members would be to expose such panel members to possible
harassment. The respondent further contends that the names of the candidates are exempt
from disclosure pursuant to 1-19(b)(2) and (b)(6), G.S., and that all other information
redacted from the grade sheet is exempt from disclosure pursuant to 1-19(b)(6), G.S.

     11. Section 1-19(b)(2), G.S., permits the nondisclosure of “[p]ersonnel or medical
files and similar files the disclosure of which would constitute an invasion of personal
privacy.”

     12. Section 1-19(b)(6), G.S., permits the nondisclosure of “[s]coring keys and
other examination data used to administer a licensing examination, examination for
employment or academic examinations.”

     13. Following the hearing on this matter, the respondent submitted the records at
issue to the Commission and an in camera inspection was conducted.

     14. It is found that the in camera records consist of 24 pages which have been
numbered IC#1998-120-1 through 1998-120-24 for purpose of identification.

     15. It is found that the respondents redacted the following categories of
information from the grade sheets: a) names of candidates, with the exception of
complainant Cantwell’s name b) attribute or characteristic being rated c) possible and
actual numerical value/ rating by each panel member for each attribute or characteristic
being rated d) panel members’ comments and e) panel members’ names.

     16. It is also found that the in camera records do not contain the departments of
the oral examination panel members.

     17. With respect to the respondent’s claim that disclosure of the names and
departments of the oral panel members would leave such members open to possible
harassment, it is found that the respondent failed to prove that any federal law or state
statute permits the nondisclosure of the names and the departments.

     18. It is further found that the respondent’s claim of possible harassment is based
on a policy that conflicts with, and diminishes and curtails the disclosure rights granted to
the complainants under 1-19(a), G.S.

     19. Consequently, it is concluded that the respondent’s policy of nondisclosure is
void within the meaning of 1-19(a), G.S.

     20. It is further, concluded that the names and the departments of the oral panel
members are not exempt from disclosure.

     21. With respect to the respondent’s claim that the names of the candidates are
exempt from disclosure pursuant to 1-19(b)(2), G.S., the appropriate test is that as set
forth in Perkins v. Freedom of Information Commission, 228 Conn. 158 (1993). The
Perkins test requires that first the information sought must constitute “personnel or
medical files and similar files” and second that two elements be met: the information
sought does not pertain to legitimate matters of public concern, and that such information
is highly offensive to a reasonable person.

     22. It is found that the names of the candidates do not constitute personnel or
medical files and similar files.

     23. It is also found that the names of the candidates pertain to legitimate matters
of public concern.

     24. It is further found that the disclosure of the names of the candidates is not
highly offensive to a reasonable person.

     25. It is therefore, concluded that the names of the candidates are not exempt
from disclosure pursuant to 1-19(b)(2), G.S.

     26. With respect to the respondent’s 1-19(b)(6), G.S., claim of exemption, it is
found that the information described in paragraph 15.b) and 15.c), above, constitutes
scoring keys within the meaning of 1-19(b)(6), G.S., and is therefore, permissively
exempt from disclosure.

     27. It is further found that the information described in paragraph 15.a.), 15.d),
and 15.e), above, do not constitute scoring keys or examination data used to administer an
examination within the meaning of 1-19(b)(6), G.S., and is therefore not exempt from
disclosure.

     28. It is therefore, concluded that the respondent did not violate 1-15(a) and 1-
19(a), G.S., when he failed to provide the complainant with the information described in
paragraph 15.b) and 15.c), above, however, he violated 1-15(a) and 1-19(a), G.S., when
he failed to provide the complainants with the information described in paragraph 15.a.),
15.d), and 15.e), above

     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 complainant with a copy of in
camera records IC#1998-120-1 through 1998-120-24. In complying with this order the
respondent may redact only the information described in paragraph 15.b) and 15.c),
above.

     2. In addition, if the respondent maintains any record containing the departments
of the persons who served on the oral examination panel, such record would constitute a
public record within the meaning of 1-18a(5) and 1-19(a), G.S., to which the
complainants would be entitled, unless a federal law or state statute permits
nondisclosure. If the respondent does not maintain any such record, forthwith, the
respondent shall provide the complainants with an affidavit attesting to that fact.

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

     Approved by Order of the Freedom of Information Commission at its regular meeting of
October 14, 1998.

_________________________
Melanie R. Balfour
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:

Ernie Cantwell and International
Association of Firefighters,
Local No. 1073
P.O. Box 2521
Middletown, CT 06457

Director, Personnel Department,
City of Middletown Labor Relations,
c/o Atty. Trina A. Solecki
City Attorney
245 DeKoven Drive
P.O. Box 1300
Middletown, CT 06457


__________________________
Melanie R. Balfour
Acting Clerk of the Commission

FIC1998-120FD/mrb10151998