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 1998-121
Director, Personnel Department,
City of Middletown and 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 respondents appeared and presented testimony, exhibits
and argument on the complaint. Docket #FIC 1998-120, Ernie Cantwell and
International Association of Firefighters, Local 1073 v. Director, 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. It is found that by letter dated March 31, 1998, the complainants requested that
the respondent director provide them with a copy of the following records concerning the
city (“city”) of Middletown fire department captain examination (“examination”):

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

b) the written grade sheet that each oral examination panel
member completed containing the breakdown of the score
given to each candidate.

     2. It is found that by letter dated April 7, 1998 the respondent director denied the
request 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 grade sheet completed by each oral examination panel member was exempt
from disclosure.

     3. Having failed to receive a copy of the requested records the complainants, by
letter dated April 23, 1998, and filed with the Commission on April 27, 1998, appealed to
the Commission alleging that the respondents violated the Freedom of Information Act
by denying them the requested records.

     4. 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.

     5. 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.

     6. It is found that the respondents maintain the requested records and such
records are public records within the meaning of 1-18a(5) and 1-19(a), G.S.

     7. It is also found that on June 19, 1998 the respondents provided the
complainants with a redacted copy of the grade sheet. However, the respondents have not
provided the complainants with the names and departments of the oral panel members.

     8. The respondents contend 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 respondents further contend 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.

     9. 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.”

     10. 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.”

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

     12. It is found that the in camera records consist of 6 pages which have been
numbered IC#1998-121-1 through 1998-121-6 for purpose of identification.

     13. 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 assigned by each panel member for each attribute or
characteristic being rated d) panel members’ comments e) panel members’ names f)
whether the candidate was recommended for hiring and g) overall rating score.

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

     15. With respect to the respondents’ 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 respondents have failed to prove that any federal law or
state statute permits the nondisclosure of the names and the departments.

     16. It is further found that the respondents’ 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.

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

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

     19. With respect to the respondents’ 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.

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

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

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

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

     24. With respect to the respondents’ 1-19(b)(6), G.S., claim of exemption, it is
found that the information described in paragraph 13.b) and 13.c), above, constitutes
scoring keys within the meaning of 1-19(b)(6), G.S., and is therefore, permissively
exempt from disclosure.

     25. It is further found that the information described in paragraph 13.a.), 13.d),
13.e), 13.f) and 13.g), 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.

     26. It is therefore, concluded that the respondents did not violate 1-15(a) and 1-
19(a), G.S., when they failed to provide the complainant with the information described
in paragraph 13.b) and 13.c), above, however, they violated 1-15(a) and 1-19(a), G.S.,
when they failed to provide the complainants with the information described in paragraph
13.a.), 13.d), 13.e), 13.f) and 13.g), above.

     The following order by the Commission is hereby recommended on the basis of
the record concerning the above-captioned complaint:

     1. Forthwith, the respondents shall provide the complainant with a copy of in
camera records IC#1998-121-1 through 1998-121-6. In complying with this order the
respondents may redact only the information described in paragraph 13.b) and 13.c),
above.

     2. In addition, if the respondents maintain 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 respondents do not maintain any such record, forthwith, the
respondent director shall provide the complainants with an affidavit attesting to that fact.

     3. Henceforth the respondents 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 and Personnel
Department, City of Middletown
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


FIC1998-121FD/mrb10151998