FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
David K. Jaffe,
Complainants
against Docket #FIC 1999-019
State of Connecticut, Connecticut
Lottery Corporation, Human Resources;
State of Connecticut, Connecticut Lottery
Corporation, Security Division; and State of
Connecticut, Connecticut Lottery Corporation,
Respondents April 28, 1999

        The above-captioned matter was heard as a contested case on March 3, 1999, at which time the complainant 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 1-200(1), G.S. [formerly 1-18a(1), G.S.].

        2. It is found that by letters dated July 24 and 28, 1998 and modified by letters dated October 8 and 26, 1998, the complainant made a request for certain records which included the personnel file of the deceased Matthew Beck.

        3. It is found that by letter dated December 14, 1998, the respondent corporation denied the complainant’s request claiming that certain documents pertaining to the deceased were "personnel", "medical" or "similar" files within the meaning of 1-210(b)(2), G.S. [formerly 1-19(b)(2), G.S.], and that the respondents had received objections to the disclosure of those documents from the administrator of the deceased’s estate and his former collective bargaining representative.

        4. By letter dated and filed on January 13, 1998, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information ("FOI") Act by denying his request. The complainant also requested the imposition of civil penalties.

        5. It is found that the requested records were submitted to the commission for in camera inspection and consist of 341 documents, identified as in camera document #s 1999-019-1 through 1999-019-341, inclusive.

        6. Section 1-210(a), G.S. [formerly 1-19(a), G.S.], provides in relevant part that:

[e]xcept 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 1-212.

        7. Section 1-212(a), G.S. [formerly 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 identified in paragraph 5, above, are public records within the meaning of 1-210(a), G.S. [formerly 1-19(a), G.S.].

        9. Section 1-210(b)(2), G.S. [formerly 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 . . . ."

        10. Section 1-214(b), G.S. [formerly 1-20a(b), G.S.], states in pertinent part that:

Whenever a public agency receives a request to inspect or copy records contained in any of its employees’ personnel or medical and similar files and the agency reasonably believes that the disclosure 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.

        11. It is concluded that the requested records are personnel or medical or similar files within the meaning of 1-210(b)(2), G.S. [formerly 1-19(b)(2), G.S.].

        12. It is also concluded that the test for determining whether "the agency reasonably believes that disclosure of such records would legally constitute an invasion of privacy", pursuant to 1-214(b), G.S. [formerly 1-20a(b), G.S.], and also whether the disclosure of such records would legally constitute an "invasion of privacy", pursuant to 1-210(b)(2), G.S. [formerly 1-19(b)(2), G.S.], 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 legitimate matters of public concern, and second, that the information is highly offensive to a reasonable person. Perkins at 175.

        13. Further, the Supreme Court, in Perkins, supra, construed the term "invasion of personal privacy" according to its common-law meaning and adopted the definition for invasion of privacy set forth in 3 Restatement (Second) Torts. Section 652I of the Restatement provides, in relevant part, that a claim " . . . for invasion of privacy can be maintained only by a living individual whose privacy is invaded." The commentary accompanying 652I provides that in the absence of statute, an action for invasion of privacy cannot be maintained after the death of the individual and that the right protected by an action for invasion of privacy is a personal right which can not be assigned or maintained by other persons.

        14. It is found therefore that Mr. Beck’s privacy rights were extinguished upon his death and cannot be asserted by either his former collective bargaining agent or the administrator of his estate.

        15. It is concluded therefore that disclosure of the requested records would not be an invasion of personal privacy since no such privacy right exists with respect to the deceased; and that the exemption found in 1-210(b)(2), G.S. [formerly 1-19(b)(2), G.S.] and the subsequent provisions of 1-214(b) and 1-214(c), G.S. [formerly 1-20a(b) and 1-20a(c), G.S.], are not applicable in this case.

        16. It is further concluded that the respondents violated 1-210(a)(1) and 1-212(a), G.S. [formerly 1-19(a)(1) and 1-15(a), G.S.], by failing to provide the complainant with copies of the requested records.

        17. Notwithstanding the conclusion in paragraph 16, above, the Commission declines to impose a civil penalty in this case.

        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 complainant with a copy of the requested records, as identified in paragraph 5 of the findings. above.

        2. Henceforth, the respondents shall strictly comply with the provisions of 1-210(a) and 1-212(a), G.S. [formerly 1-15(a) and 1-19(a), G.S.].

 

 

 

        Approved by Order of the Freedom of Information Commission at its regular meeting of April 28, 1999.

 

 

_________________________

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:

 

David K. Jaffe
Spinella & Jaffe
CityPlace II
185 Asylum Street
Hartford, CT 06103
State of Connecticut,
Connecticut Lottery
Corporation, Human
Resources; State of
Connecticut, Connecticut
Lottery Corporation,
Security Division; and
State of Connecticut,
Connecticut Lottery
Corporation
c/o Atty. Richard L. Street
Carmody & Torrance, LLP
50 Leavenworth Street
PO Box 1110
Waterbury, CT 06721

 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

 

FIC1999-019FD/mrb05061999