FREEDOM OF INFORMATION COMMISSION
|In the Matter of a Complaint by||FINAL DECISION|
|Daniel P. Jones and
The Hartford Courant,
|against||Docket #FIC 1998-193|
|Commissioner, State of
Department of Environmental Protection;
and State of Connecticut, Department of
|Respondents||November 18, 1998|
The above-captioned matter was heard as a contested case on September 10, 1998, 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(1), G.S.
2. By letter dated May 27, 1998, the complainants submitted a request to the respondent Department of Environmental Protection (hereinafter respondent department) for access to and/or copies of all documents pertaining to a sexual harassment complaint or allegation filed by Tammy Viele against William Evans, or by anyone else against William Evans. The letter included a request for any documents, including tape recordings, that pertain to any investigation thereof.
3. By letter dated June 8, 1998, the complainants made another request to the respondent department for access to and/or copies of documents and tape recordings pertaining to a sexual harassment complaint filed by an employee of the respondent department against a manager of the respondent department, William Evans.
4. It is found that the complainants received some records responsive to their requests but were informed that the remaining records, specifically the notes and tape recordings of the interviews conducted during the investigation process, would not be disclosed because the respondents believed that disclosure of said records would be an invasion of personal privacy and the respondent department received written objections from the subjects of the records, pursuant to §1-20a(b), G.S., and because disclosure would also disclose communications privileged by the attorney-client relationship.
5. By letter dated July 1, 1998, and filed with this Commission on July 7, 1998, the complainants appealed the respondent departments failure to disclose the notes and tape recordings of the interviews conducted during the investigation of the sexual harassment complaint.
6. Section 1-19(a), G.S., provides in relevant part that:
all records maintained or kept on file by any public agency . . . shall be public records and every person shall have a right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with 1-15.
7. 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.
8. It is found that the records more fully described in paragraphs 2 and 3, above, are public records within the meaning of §1-18(a)(5), G.S.
9. The respondents contend that §1-19(b)(2), G.S., exempts all information contained in either the tape recordings of the interviews or the notes of the interviews which would personally identify the respondent departments complainant.
10. Section 1-19(b)(2), G.S., provides that a public agency need not disclose personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.
11. Section 1-20a(b), G.S., provides in relevant part that:
[w]henever a public agency receives a request to inspect or copy records contained in any of its employees personnel or medical or 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.
12. And finally, §1-20a(c), G.S., provides that:
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 . . .
13. It is found that the notes and tape recordings are personnel, medical or similar files within the meaning of section 1-19(b)(2), G.S.
14. It is found 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 for an invasion of privacy is set forth in Perkins v. Freedom of Information Commission, 228 Conn. 158 (1993). The test requires that two elements be met: first, that the information sought does not pertain to a legitimate matter of public concern, and second, that such information is highly offensive to a reasonable person. Perkins at 175.
15. Following the September 10, 1998, hearing in this matter, the respondent submitted for in camera inspection the notes of the interviews which are identified as 1998-193-1 through 1998-193-15.
16. It is found that the notes from the interviews, which reflect the manner in which much of the investigation was conducted and the evidence on which the recommended action was based, pertain to legitimate matters of public concern.
17. It is also found that the notes of the interviews do not contain information that could reasonably be considered highly offensive to a reasonable person.
18. Accordingly, applying the Perkins test, it is concluded that disclosure of the interview notes would not cause an invasion of personal privacy as the term is used in §1-19(b)(2), G.S. It is further concluded that to the extent that the tape recordings of the interviews reflect the same information as the interview notes, disclosure of the tape recordings likewise would not cause an invasion of personal privacy.
19. However, in view of the sensitive nature of sexual harassment complaints and the personal and intimate issues involved in this particular sexual harassment complaint, it is concluded that the respondents could have reasonably believed that disclosure of the records would legally constitute an invasion of privacy for purposes of §1-20a(b), G.S.
20. It is concluded therefore that the respondents failure to provide the complainant with prompt access to the records did not violate the provisions of §1-19(a), G.S.
21. The respondents further contend that §1-19(b)(10), G.S., exempts the following in camera documents from mandatory disclosure: 1998-193-2, page 1, lines 11- 18, 26, and 27; 1998-193-2, page 2, lines 3-6; and 1998-193-11, page 2, lines 21-23.
22. Section 1-19(b)(10), G.S., provides that nothing in the FOI Act shall be construed to require disclosure of communications privileged by the attorney-client relationship . . . .
23. The exemption for attorney-client privileged communications contained in §1-19(b)(10), G.S., is limited to the following circumstances in accordance with established Connecticut Law:
Where legal advice of any kind is sought from a professional legal advisor in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection may be waived. Lafaive v. DiLoreto, 2 Conn. App. 58, 65 (1984), Cert. Denied 194 Conn. 801 (1984).
24. It is found that the portions of the in camera documents described in paragraph 21, above, consist of notes regarding communications between the respondents and their attorney seeking legal advice and that such notes contain the legal advice sought by the clients and was provided in confidence.
25. It is found that the records described in paragraph 21, above, are privileged communications within the meaning of §1-19(b)(10), G.S., and are permissibly exempt from disclosure.
26. It is therefore concluded that the respondents did not violate section §1-19(a), G.S., when they failed to provide the complainant with access to those portions of the in camera documents described in paragraph 21, above, or those portions of the tape recordings that reflect the same communications.
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 complainants with copies of the interview notes with the portions described in paragraph 21 of the findings, above, redacted and with copies of the tape recordings of the interviews with any portions thereof which reflect the same communications described in paragraph 21 of the findings, above, redacted.
2. In complying with paragraph 1 of this order, the respondents may also redact social security numbers.
Approved by Order of the Freedom of Information Commission at its special meeting of November 18, 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:
Daniel P. Jones and The Hartford Courant 285 Broad Street Hartford, CT 06115-2510
Commissioner, State of Connecticut, Department of Environmental Protection; and State of Connecticut, Department of Environmental Protection c/o Atty. Robert B. Teitelman Assistant Attorney General 55 Elm Street, PO Box 554 Hartford, CT 06141-0120
__________________________ Melanie R. Balfour Acting Clerk of the Commission