FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
John Ward,
Complainants
against Docket #FIC 1998-251
Beverly L. Durante, Personnel
Administrator, Housatonic Area
Regional Transit; and Housatonic
Area Regional Transit,
Respondents January 27, 1999


        The above-captioned matter was heard as a contested case on November 4, 1998, 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 1-18a(1), G.S.

        2. It is found that on July 15, 1998, the complainant made an oral request to the respondent personnel administrator to inspect the following records:

a.  the personnel file of a driver named Troy Boyd;

b.  and all complaints regarding drivers and responses to those complaints.

        3. It is found that the respondent personnel administrator asked the complainant to put his request in writing and that in a letter dated July 22, 1998, the complainant made a written request to inspect the records described in paragraph 2, above.

        4. It is found that, by letter dated July 24, 1998, the respondent personnel administrator informed the complainant that because disclosure of the requested records would be an invasion of the drivers’ personal privacy, and the drivers would be notified of his request and given the appropriate opportunity to object to the disclosure of the records in accordance with the provisions of 1-20, G.S., of the Freedom of Information ("FOI") Act.

        5. It is further found that on August 14, 1998, the complainant was informed that the respondents had received written objections from all but one of the drivers and pursuant to the statute, only the records pertaining to that driver would be disclosed. It is also found that at such time the complainant orally requested to inspect the written objections and a blank objection form.

        6. It is found that the respondent personnel administrator denied the complainant’s request described in paragraph 5, above.

        7. By letter dated August 17, 1998, and filed with this Commission on August 20, 1998, the complainant appealed the respondents’ denial to inspect the records and alleged that the respondents violated the FOI Act by requiring him to put his request for inspection of records in writing and for failing to promptly allow him to inspect the records upon request. The complainant also requested the imposition of a civil penalty.

        8. 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.

        9. It is found that the records more fully described in paragraphs 2 and 5, above, are public records within the meaning of 1-18(a)(5), and 1-19(a), G.S.

        10. It is also found that the complainant appeared at the respondent personnel administrator’s office on July 15, 1998 and made numerous requests to inspect records in a very spontaneous, compounded and confusing manner in that the complainant would request to inspect documents or records mentioned in the document he was presently inspecting and not only expected but demanded immediate compliance with his request which required her to search throughout the building and other buildings to find the documents requested, many of which were not maintained by her.

        11. It is further found that under the circumstances the respondent personnel administrator complied "promptly", within the meaning of 1-19(a), G.S., with respect to access to those requested records heretofore provided.

        12. It is further found that after complying with several requests and spending a significant amount of time with the complainant, the respondent personnel administrator asked the complainant to put his request in writing in an effort to ascertain exactly what records he wished to inspect to ensure full compliance with his request.

        13. It is further found that upon receiving the complainant’s written request, the respondent personnel administrator compiled those records which she believed were disclosable for his inspection and that after several unsuccessful and apparently frustrating attempts to provide the complainant with access to the records, the complainant finally appeared to inspect the records on August 14, 1998. It is further found that at this time the events described in paragraph 5, above, took place.

        14. It is further found that 1-19(a), G.S., does not authorize an agency to require that requests for inspection of records be put in writing as a precondition for access to inspect public records.

        15. It is concluded therefore that the respondent personnel administrator violated the FOI Act by requiring the complainant to put his request for inspection of records in writing, as described in paragraph 3, above.

        16. At the hearing in this matter, the respondents described eighteen different categories of records requested by the complainant and contended that the following are exempt from disclosure pursuant to 1-19(b)(2), G.S.:

a.  Record 2 - payroll and personnel change forms which includes the social security number and all personnel transactions;

b.  Record 3 - disciplinary and investigation reports which would include any complaints filed against a driver and the driver’s response to the complaint, and the results of any investigation;

c.  Record 6 - the specific comments regarding a driver’s performance contained in the performance appraisal;

d.  Record 10 - a driver’s employment application;

e.  Record 11 - a driver’s resume;

f.  Record 16 - a copy of the driver’s license; and

g.  Record 17 - all forms updating personnel information.

        17. 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."

        18. 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 employee’s 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 or similar files when it does not reasonably believe that such disclosure would legally constitute an invasion of personal privacy.

        19. 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 . . . .

        20. At the hearing in this matter, the respondents gave the complainant a copy of all the written objections submitted by the drivers and therefore the complainant’s request to inspect the objection forms described in paragraph 5, above, is no longer at issue.

        21. It is also found that the records described in paragraph 2, above, are personnel, medical or similar files within the meaning of 1-19(b)(2), G.S.

        22. 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.

        23. It is found that the respondents failed to prove that the records described in paragraph 2, above, do not pertain to a legitimate matter of public concern and failed to prove that disclosure of the information contained therein would be highly offensive to a reasonable person.

        24. It is therefore concluded that the records described in paragraph 2, above, are not exempt from disclosure by virtue of 1-19(b)(2), G.S.

        25. Based on the record in this matter, the Commission declines to impose a civil penalty against the respondents.

 

        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 access to a copy of the records described in paragraph 2, of the findings, above, with the social security numbers of the drivers redacted.

        2. Henceforth, the respondents shall strictly comply with the disclosure provisions of 1-19(a) and 1-15(a), G.S., and the procedures set forth in 1-20a, G.S.

        3. The Commission admonishes the complainant against making similar requests, as those described in paragraph 10, of the findings above, in the manner described in that paragraph and suggests that the complainant take special notice of the provisions in 1-21i(b)(2), G.S., regarding unreasonable, frivolous and harassing appeals.

 

 

        Approved by Order of the Freedom of Information Commission at its regular meeting of January 27, 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:

 

John Ward

18 Garamella Boulevard

Danbury, CT 06810

Beverly L. Durante,

Personnel Administrator,

Housatonic Area Regional

Transit; and Housatonic

Area Regional Transit

c/o Atty. Roseann G. Padula

Sullivan, Schoen, Campane

& Connon, LLC

24 Stony Hill Road

Suite 106

Bethel, CT 06801-1166

and

c/o Atty. James K. Smith

Ventura, Ribeiro & Smith

52 Federal Road

Danbury, CT 06810

 

 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

 

FIC1998-251FD/mrb02011999