FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by |
FINAL DECISION |
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Megan
J. Bard and |
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Complainant |
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against |
Docket #FIC 2000-093 |
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Chairman,
Board of Education, Eastford |
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Respondents |
June 28, 2000 |
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The above-captioned matter was heard as a contested
case on May 8, 2000, at which time the complainants and the respondents
appeared, stipulated to certain facts and presented testimony, exhibits and
argument on the complaint. Mr.
Stephen B. Hosmer, Superintendent of Eastford Public Schools, was permitted to
intervene as a party respondent in the above-captioned case.
For purposes of hearing, this case was consolidated with Docket #FIC
2000-095, Ron Robillard and The Chronicle v. Chairman, Board of Education,
Eastford Public Schools; and Board of Education, Eastford Public Schools.
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.
2.
By letter dated
February 4, 2000, the complainant Bard requested a copy of the “recommendations
made by the Board of Education’s personnel committee, and accepted by the
full board, regarding action taken concerning the sexual harassment charge
against Superintendent of Schools, Stephen Hosmer.”
3.
It is found that on
February 10, 2000, the complainant Bard made an oral request for a copy of the
report given to the respondent board in January by the independent attorney
hired to conduct the investigation of the sexual harassment complaint.
4.
It is found that the
records requested consist of an investigation report and the written
disciplinary recommendation of the personnel committee of the respondent board
(hereinafter “investigative file”) which records were submitted by the
respondents to the Commission for in-camera inspection.
The records have been identified as in-camera document #s
2000-093-01A through 2000-093-13A, with respect to the investigation report
and in-camera document #s 2000-093-01B through 2000-093-2B with respect
to the disciplinary recommendation of the personnel committee.
5.
It is found that the
respondents believed that disclosure of the investigation file would
constitute an invasion of the personal privacy of the victim, the accused and
the witnesses mentioned in the investigation file and provided them with an
opportunity to object to the disclosure of the file pursuant to
§§1-210(b)(3) and 1-214(b), G.S.
6.
It is found that by
letter dated February 10, 2000, Mr. Hosmer provided the respondents with a
written objection, which conforms to the requirements of §1-214, G.S.
7.
On or about February
11, 2000, the respondent chairman, via telephone, denied the complainants’
request after the respondent board voted to honor the objection at its meeting
of February 11, 2000.
8.
By letter dated
February 18, 2000, and filed on February 28, 2000, the complainants appealed
to this Commission alleging that the respondents violated the Freedom of
Information (“FOI”) Act by denying their request, as described in
paragraphs 2 and 3, above.
9.
Section 1-210(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 receive a copy of such records
in accordance with the provisions of section 1-212.
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.”
10.
Section 1-212(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
. . . .”
11.
It is found that the
requested records are public records within the meaning of §1-210(a), G.S.
12.
The respondents
contend that the investigation file is exempt from mandatory disclosure
pursuant to §1-210(b)(2), G.S., because it is a personnel record and
disclosure of the file would constitute an invasion of the personal privacy of
the subjects of the records. The
respondents also contend that, in the event the Commission does not uphold its
decision to withhold the investigative file, they should be allowed to redact
the name, and any other personally identifiable information, of the victim
because victims of sexual harassment should be treated the same as victims of
sexual assault. The respondents
further contend that they should be allowed to redact the names of the
witnesses as well, because disclosure of those names would compromise the
integrity of investigations of future sexual harassment complaints since
witnesses may not be as forthcoming and candid if confidentiality could not be
guaranteed.
13.
The intervenor
contends that disclosure of the investigation file would be an invasion of his
personal privacy within the meaning of §1-210(b)(2), G.S.
The intervenor argues that because the details of the investigation
file are of personal relationships, there is no legitimate public interest in
the information contained therein, citing Department of Public Safety,
Division of State Police v. Freedom of Information Commission, et al., 242
Conn. 79 (1997), as authority for this argument.
The intervenor also argues that the investigation file is an evaluation
and that evaluations conducted under appropriate confidential circumstances
with an expectation of privacy by those who participated in the evaluation are
non-disclosable pursuant to First Selectman v. Freedom of Information
Commission, WL59726 (Conn. Super. Ct 1999).
The intervenor further argues that disclosure of the investigation file
would be highly offensive to him because the records contain information
beyond the scope of the complaint and contain allegations and/or comments to
which he was not given an opportunity to respond, which allegations and/or
comments would be damaging to both his personal and professional reputation.
14.
Section 1-210(b)(2),
G.S., provides in relevant part that nothing in the FOI Act shall require the
disclosure of “personnel or medical files and similar files the disclosure
of which would constitute an invasion of personal privacy . . . .”
15.
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.
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.
16.
It is found that the
investigative file constitutes a “personnel” or “similar file” within
the meaning of §1-210(b)(2), G.S.
17.
With respect to the
intervenor’s argument that there is no legitimate public interest in the
requested records, the Supreme Court in Department of Public Safety, supra,
upheld the trial court’s decision that there is no legitimate public
interest in “disclosure of a report describing the details of . . .[a public
official’s] personal and marital relationships.”
However, Department of Public Safety, supra, can be
distinguished from the present case. In
Department of Public Safety, supra, the investigation in that
case “did not focus on the conduct of the [public official’s] official
business,” while the investigation in this present case against the
Superintendent, focuses on how he conducted himself on a day to day basis in
his official capacity as Superintendent of Schools and the direct supervisor
of the alleged victim.
18.
It is concluded
therefore that Department of Public Safety, supra, is not
applicable in this case.
19.
In regards to the
intervenor’s argument that the investigation file is an evaluation similar
to that in First Selectman, supra, and should be treated the
same, it is found that the investigation file is not a performance evaluation.
Furthermore, §10-151, G.S., explicitly exempts Superintendent
evaluations from exemption as teacher performance evaluations.
It is further found that, unlike the circumstance in First Selectman,
supra, there were no other circumstances that would have given to the
intervenor in this case an expectation of privacy beyond the investigating
attorney’s representation of confidentiality.
In Kureczka v. Freedom of Information Commission, 228 Conn. 271,
277 (1994), the Supreme Court ruled that “the Commission cannot be barred
from ordering disclosure of information that it has otherwise properly found
not to constitute an invasion of privacy simply because of the erroneous
determination by a government agency that such information should be
confidential and its representations to that effect.”
20.
Moreover, it is found
that the investigation file pertains to a serious matter of the public’s
business and it is therefore concluded that the records are a matter of
legitimate public concern.
21.
Furthermore, after
careful review of the in-camera documents, it is found that while the
information contained in the investigation file may be personally embarrassing
to the Superintendent, disclosure of the investigation file, and the
information contained therein, would not be highly offensive to a reasonable
person, within the meaning of Perkins, supra.
22.
It is therefore
concluded that disclosure of the investigation file would not be an invasion
of personal privacy within the meaning of Perkins, supra, and is
not exempt from disclosure under §1-210(b)(2), G.S.
23.
It is also concluded
that the respondents violated the disclosure provisions of §1-210(a), G.S.,
by failing to provide the complainants with a copy of the records described in
paragraphs 2 - 4, above.
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 records described in paragraphs 2 - 4 of the findings, above, free of charge.
Approved by Order of the Freedom of Information Commission at its regular meeting of
June 28, 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:
Megan
J. Bard and The Norwich Bulletin
13 Commerce Avenue
Danielson, CT 06239
Chairman,
Board of Education, Eastford Public Schools; and Board of Education,
Eastford
Public Schools
c/o Atty. William R. Connon
Sullivan, Schoen, Campane & Connon, LLC
646 Prospect Avenue
Hartford, CT 06105
Stephen Hosmer
c/o Atty. John Gesmonde
Gesmonde, Pietrosimone, Sgrignari & Pinkus, LLC
3127-3129 Whitney Avenue
Hamden, CT 06518-2344
__________________________
Melanie R. Balfour
Acting Clerk of the Commission
FIC2000-093FD/mrb/07/06/00