FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Daniel P. Jones and
The Hartford Courant,
Complainants
against Docket #FIC 1998-193
Commissioner, State of Connecticut,
Department of Environmental Protection;
and State of Connecticut, Department of
Environmental Protection,
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 department’s 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 department’s 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 respondent’s 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


FIC1998-193FD/mrb11241998