OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by
and New Haven Register,
Docket #FIC 1999-502
Director of Personnel, State of Connecticut,
April 26, 2000
The above-captioned matter was heard as a contested case on January 6, 2000, 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:
The respondents are public agencies within the meaning of §1-200(1),
G.S. [formerly §1-18a(1)
2. By letter dated September 30, 1999, the complainants requested access to the personnel file of Denise Botto, an employee of the respondents. The complainants did not seek access to Ms. Botto’s medical or family information, or her social security number.
3. By letter dated October 6, 1999, the respondents denied the request described in paragraph 2, above, citing the Collective Bargaining Agreement between the Board of Trustees for the Connecticut State University System and the Connecticut State University American Association of University Professors [hereinafter “the agreement”], section 126.96.36.199.
4. By letter dated October 18, 1999, and filed with the Commission on October 22, 1999, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information Act by virtue of the denial described in paragraph 3, above.
5. It is found that the personnel file of Ms. Botto, absent medical, family, and social security information, as requested by the complainants, is a public record within the meaning of §1-200(5), G.S. [formerly §1-18a(5), 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 inspect such records promptly during regular office or business hours or to receive a copy of such records….”
7. It is found that the
agreement was approved in 1997 by the Connecticut General Assembly in accordance with the provisions of §§5-270 to 5-280, G.S., and that such agreement was in effect at all
times relevant herein.
8. The respondents contend that section 188.8.131.52 of the agreement provides a basis for withholding the requested file.
9. Section 184.108.40.206, of the agreement provides:
entire contents of personnel files shall be considered private
and may not be opened to any outside scrutiny except when ordered
by a court of law. When a
file is requested by an outside party for
any reason, the affected member shall be promptly notified and
provided with a copy of the request and reason therefore.”
10. Section 5-278, G.S., provides in relevant part:
Any [collective bargaining] agreement… shall be reduced to writing….
The agreement, together with a request for …approval of any
the agreement which are in conflict with any statute or any
any state agency….shall be filed …with the clerks of the House of
Representatives and the Senate…”
Where there is a conflict between any agreement or arbitration award
approved in accordance with the provisions of sections 5-270 to
inclusive, on matters appropriate to collective bargaining…and any
statute or special act, or regulations adopted by a state agency, the
such agreement or arbitration award shall prevail…”
11. It is concluded that a collective bargaining term may
supersede a statute, provided that the appropriate statutory procedure has
been followed, and that, absent such procedure, the conflicting term is a
nullity. Board of Trustees for
State Technical Colleges v. Federation of Technical College Teachers, Local
1942, American Federation of Teachers, AFL-CIO, 179 Conn. 184, 197 (1979);
see Connecticut State College American Ass'n of University Professors v.
Connecticut State Bd. of Labor Relations, 197 Conn. 91, 98-99 (1985)
(unless legislators are informed of the statutes or regulations that conflict
with the negotiated agreement, vote of approval cannot be deemed to modify
12. The Commission takes administrative notice of the April 18,
1997 transmittal submitted with the agreement for legislative approval, which
transmittal references Article 220.127.116.11, describes such provision as “provides
certain limitations on access to personnel files and medical records,” and
states that the state statute or regulation superseded is “PA 87-285, 1-19a
13. Public Act 87-285 amended §1-20a, G.S. [now codified as §1-214, G.S.], and in pertinent part reads as follow:
“ (b) Whenever 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, provided such notice shall
not be required to be in writing where impractical due to the
large number of employees 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.
(c) 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 within four business
days from the receipt by the employee of the notice or, if there is no
evidence of receipt of written notice, not later than seven business
days from the date the notice is actually mailed, sent, posted or
otherwise given. Each objection filed under this subsection shall be
subscribed by an attorney admitted to practice before the courts of
this state and shall constitute a certificate that the subscribing
attorney has read the objection, 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 Freedom of
Information 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].…”
14. It is concluded that §18.104.22.168 of the agreement conflicts with Public Act 87-285 [now codified as §1-214, G.S. (formerly §1-20a, G.S.)], in two respects: first, by requiring that the agency notify its employee of any request for an employee’s personnel file, rather than only those requests where the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy; and second, by requiring the agency to also notify an employee of the reason for a request. It is further concluded that, in accordance with §5-278(e), G.S., §22.214.171.124 of the agreement supersedes Public Act 87-285 [now codified as §1-214, G.S. (formerly §1-20a, G.S.)], in such respects. However, it is also concluded that the remaining provisions of such statute were not modified by §126.96.36.199 of the agreement, and therefore continue in full force with respect to the respondents and the request described in paragraph 2, above.
15. Section 1-19a, G.S,
[now codified as §1-211, G.S.]
“(a) Any public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to the Freedom of Information Act, a copy of any nonexempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such copy or have such copy made. Except as otherwise provided by state statute, the cost for providing a copy of such data shall be in accordance with the provisions of section 1-212.
(b) Except as otherwise provided by state statute, no public agency shall enter into a contract with, or otherwise obligate itself to, any person if such contract or obligation impairs the right of the public under the Freedom of Information Act to inspect or copy the agency's nonexempt public records existing on-line in, or stored on a device or medium used in connection with, a computer system owned, leased or otherwise used by the agency in the course of its governmental functions.
(c) On and after July 1, 1992, before any public agency acquires any computer system, equipment or software to store or retrieve nonexempt public records, it shall consider whether such proposed system, equipment or software adequately provides for the rights of the public under the Freedom of Information Act at the least cost possible to the agency and to persons entitled to access to nonexempt public records under the Freedom of Information Act. In meeting its obligations under this subsection, each state public agency shall consult with the Department of Information Technology as part of the agency's design analysis prior to acquiring any such computer system, equipment or software. The Department of Information Technology shall adopt written guidelines to assist municipal agencies in carrying out the purposes of this subsection. Nothing in this subsection shall require an agency to consult with said department prior to acquiring a system, equipment or software or modifying software, if such acquisition or modification is consistent with a design analysis for which such agency has previously consulted with said department. The Department of Information Technology shall consult with the Freedom of Information Commission on matters relating to access to and disclosure of public records for the purposes of this subsection. The provisions of this subsection shall not apply to software modifications which would not affect the rights of the public under the Freedom of Information Act.”
16. It is concluded that nothing in §1-19a, G.S. [now codified as §1-211, G.S.], specifically references “…certain limitations on access to personnel files and medical records,” which was the description provided to the legislature as set forth in paragraph 12, above. It is further concluded that §1-19a, G.S. [now codified as §1-211, G.S.], does not conflict with §188.8.131.52 of the agreement.
17. It is further
concluded that nothing in the transmittal described in paragraph 12, above,
purports to supersede §1-19(a), G.S.,
[now codified as §1-210(a),
G.S.] which sets forth the mandatory disclosure provision of the FOI Act,
since such statute is not specifically referenced therein.
18. It is concluded that the transmittal described in
paragraph 12, above, cited §1-19a,
G.S., rather than §1-19(a),
G.S. It is therefore concluded
that such transmittal did not fairly apprise the legislature of the
supersedence of section 184.108.40.206 of the agreement over the mandatory
disclosure provision of the FOI Act.
19. Accordingly, §1-210(a),
G.S. [formerly, §1-19(a), G.S.],
as set forth in paragraph 6, above, is in effect with respect to the obligations of the respondents to
comply with the request described in paragraph 2, above.
20. 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.”
21. 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.
22. It is found that the
requested file is a personnel file within the meaning of §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.]
23. It is found that there is no evidence in the record as to whether the requested file pertains to legitimate matters of public concern or as to whether disclosure of such file would be highly offensive to a reasonable person within the meaning of §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.], and the Commission will not presume that these elements of the Perkins test have been met.
24. It is found that Ms. Botto did not file the written objection required by §1-214(c), G.S. [formerly §1-20a(c), G.S.], within seven business days.
25. Based upon the findings in paragraphs 5, 22, 23, and 24, above, it is concluded that the requested file is not exempt from mandatory disclosure. It is further concluded that the respondents’ failure to provide the complainants with access to such file 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 requested file.
2. Henceforth, the respondents shall strictly comply with the provisions of §§1-210(a) and 1-214(b)(c), G.S. [formerly §§1-19(a) and 1-20a(b)(c), G.S.]
Approved by Order of the Freedom of Information Commission at its regular meeting of
April 26, 2000.
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:
Christopher Hoffman and New Haven Register
40 Sargent Drive
New Haven, CT 06511-5918
Director of Personnel, State of Connecticut, Southern Connecticut State University; and
Personnel Office, State of Connecticut, Southern Connecticut State University
c/o Victor R. Binkoski
State of Connecticut
Southern Connecticut State University
501 Crescent Street
New Haven, CT 06515-1355
Melanie R. Balfour
Acting Clerk of the Commission