FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Benjamin M. Wenograd and
Service Employees International
Union Local 760,
Complainants
against Docket #FIC 1998-265
John Roughan, Executive Director,
East Hartford Housing Authority;
and East Hartford Housing Authority,
Town of East Hartford,
Respondents March 24, 1999

        The above-captioned matter was heard as a contested case on November 24, 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. It is found that by letter dated July 16, 1998, the complainants requested that the respondent director provide them with copies of the following records (hereinafter "requested records"):

a. all written warnings and documented verbal warnings issued to current or past employees of the respondent authority within the past five years; and

b. all annual performance evaluations issued to current or past employees of the respondent authority within the past five years.

        3. It is found that pursuant to 1-20a, G.S., the respondent director, by letter dated July 23, 1998, notified the employees whose records are at issue of the complainants’ records request and provided such employees with an opportunity to object to the disclosure of the requested records.

        4. It is found that fifteen of the employees concerned objected to the disclosure of disciplinary records and performance evaluation records.

        5. It is found that by letter dated August 24, 1998 the respondent director provided the complainants with some of the requested records, including performance evaluations of those employees who did not object to disclosure.

        6. Having failed to receive all of the requested records, the complainants, by letter dated August 31, 1998 and filed with this Commission on September 2, 1998, appealed to the Commission alleging that the respondents denied them copies of all of the requested records. The complainants requested that the Commission impose civil penalties upon the respondents.

        7. It is found that the respondents, by letter dated November 19, 1998, provided the employees concerned with notice of the hearing in this matter.

        8. It is found that the respondents maintain records responsive to the complainants request as described in paragraph 2, above, which they have not provided to the complainants. Specifically, the respondents maintain disciplinary records and performance evaluation records.

        9. Section 1-18a(5), G.S., provides:

"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.

        10. 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.

        11. It is concluded that the requested records are public records within the meaning of 1-18a(5) and 1-19(a), G.S.

        12. The respondents contend that disclosure of the disciplinary records and the performance evaluations would constitute an invasion of the employees’ privacy, within the meaning of 1-19(b)(2), G.S.

        13. 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."

        14. Pursuant to Perkins v. Freedom of Information Commission, 228 Conn. 158 (1993), the appropriate test when examining a claim of exemption pursuant to 1-19(b)(2), G.S., is as follows, first the information sought must constitute "personnel or medical files and similar files" and second, two elements must be met: the information sought does not pertain to legitimate matters of public concern, and such information is highly offensive to a reasonable person.

        15. It is found that the disciplinary records and the performance evaluation records at issue constitute personnel files within the meaning of 1-19(b)(2), G.S.

        16. It is also found that the disciplinary records and the performance evaluation records at issue pertain to legitimate matters of public concern.

        17. In addition, the respondents failed to prove that disclosure of the disciplinary records and the performance evaluation records at issue would reveal information that is highly offensive to a reasonable person.

        18. It is therefore, concluded that the disciplinary records and the performance evaluation records at issue are not exempt from disclosure pursuant to 1-19(b)(2), G.S.

        19. The facts and circumstances of this case do not justify the imposition of civil penalties. Consequently, the complainants’ request for such penalties is denied.

        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 complainants with a copy of all of the disciplinary records and performance evaluation records responsive to the complainants’ request, as more fully described in paragraph 2, of the findings, above.

        Approved by Order of the Freedom of Information Commission at its regular meeting of March 24, 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:

 

Benjamin M. Wenograd
and Service Employees
International Union Local 760
c/o Benjamin M. Wenograd
760 Capitol Avenue
Hartford, CT 06106-1206
 

John Roughan, Executive
Director, East Hartford
Housing Authority; and
East Hartford Housing
Authority, Town of East
Hartford
c/o Atty. Ralph J. Alexander
Brady, Willard & Alexander
330 Roberts Street, Suite 400
East Hartford, CT 06108-3604

 

 

 

 

 

 

 

 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

 

FIC1998-265FD/mrb03251999