FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Paul Marks and The Hartford Courant,
Complainants
against Docket #FIC 1999-096
Chief, Police Department, Town of
Windsor Locks; and Police Department,
Town of Windsor Locks,
Respondents July 28, 1999

         The above-captioned matter was heard as a contested case on May 18, 1999, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. For purposes of hearing, this case was consolidated with docket #FIC 1999-144; Robert H. Boone and Journal Inquirer v. William Gifford, Chief, Police Department, Town of Windsor Locks; Police Department, Town of Windsor Locks; and Windsor Locks Police Commission.

        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. By letter dated February 16, 1999, the complainants requested that the respondents provide them with a copy of the internal affairs investigation report on Officer David Clark (hereinafter "the report").

        3. By letter dated February 23, 1999, the respondents informed the complainants that they had notified two officers of the request described in paragraph 2, above, that the respondents had received an objection to release of the report, and that, accordingly, the respondents were prohibited from releasing the report.

        4. By letter dated and filed March 2, 1999, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information ("FOI") Act by denying them a copy of the report.

        5. It is found that the report is a public record within the meaning of 1-200(1), G.S. [formerly 1-18a(1), G.S.]

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

[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency…shall be public records and every person shall have the right to…receive a copy of such records…."

        7. The respondents contend that 1-214(b) and (c), G.S. [formerly 1-20a(b) and (c), G.S.], prohibit them from releasing the report until ordered to do so by the Commission.

        8. Section 1-214(b), G.S. [formerly 1-20a(b), G.S.], provides in relevant part:

[w]henever a public agency receives a request to inspect or

copy records contained in any of its employees' personnel or

medical files and 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…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.

(Emphasis added.)

        9. Section 1-214(c), G.S. [formerly 1-20a(c), G.S.], provides in relevant part:

[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

or the employee's collective bargaining representative, if any,

within seven business days from the receipt by the employee

or such collective bargaining representative of the notice or,

if there is no evidence of receipt of written notice, not later

than nine business days from the date the notice is actually

mailed, sent, posted or otherwise given. Each objection filed

under this subsection shall be on a form prescribed by the

public agency, which shall consist of a statement to be

signed by the employee or the employee's collective

bargaining representative, under the penalties of false

statement, that to the best of his knowledge, information

and belief 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 [FOI] Commission pursuant to section

1-206. Failure to comply with a request to inspect or

copy records under this section shall constitute a denial

for the purposes of section 1-206…..

        10. It is found that, upon receipt of the request described in paragraph 2, above, the respondents immediately notified two officers referenced in the report of such request and that such officers timely objected in writing to the release of the report.

        11. The Commission takes administrative notice of the Order to Show Cause in this matter, whereby the respondents were ordered to notify objecting employees of the date and time of the hearing in this matter. It is further found that the respondents complied with such order and that neither of the objecting employees described in paragraph 10, above, appeared at the hearing in this matter, nor did they move to intervene in the proceedings.

        12. It is found that the report is contained within a personnel or medical and similar file within the meaning of 1-210(b)(2), G.S. [formerly 1-19(b)(2), G.S.]

        13. Section 1-210(b)(2), G.S. [formerly 1-19(b)(2), G.S.], permits the nondisclosure of "personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy."

        14. In Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993), the Supreme Court set forth the test for the exemption contained in 1-210(b)(2), G.S. [formerly 1-19(b)(2), G.S.] The claimant must first establish that the files in question are personnel, medical or similar files. Second, the claimant must show that disclosure of the records would constitute an invasion of personal privacy. In determining whether disclosure would constitute an invasion of personal privacy, the claimant must establish both of two elements: first, that the information sought does not pertain to legitimate matters of public concern, and second, that such information is highly offensive to a reasonable person.

        15. It is found that the report was generated by the respondent department following an internal investigation into the receipt of workers’ compensation by Officer Clark.

        16. It is found that the State of Connecticut Workers’ Compensation Commission issued findings with respect to Officer Clark’s claim on February 2, 1999, and that such findings are readily available for public inspection or copying at such public agency.

        17. It is found that the report pertains to legitimate matters of public concern and that the information contained therein if disclosed would not be highly offensive to a reasonable person within the meaning of 1-210(b)(2), G.S. [formerly 1-19(b)(2), G.S.].

        18. It is therefore concluded that the respondents’ belief that disclosure of the report would legally constitute an invasion of privacy was not reasonable within the meaning of 1-214(b), G.S. [formerly 1-20a(b), G.S.]

 

        19. It is also concluded that the report is not exempt from disclosure, and that the respondents’ failure to provide the complainants with a copy of the report violated 1-210(a), G.S. [formerly 1-19(a), G.S.]

         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 a copy of the report.

 

         Approved by Order of the Freedom of Information Commission at its regular meeting of

July 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:

 

Paul Marks and The Hartford Courant
101 Phoenix Avenue
Enfield, CT 06082
Chief, Police Department,
Town of Windsor Locks; and
Police Department, Town of
Windsor Locks
c/o Atty. Kevin M. Deneen
PO Box 504
Windsor, CT 06095

 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

 

FIC1999-096FD/mrb/08041999