OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by
Docket #FIC 2000-265
Superintendent of Schools, Vernon
January 24, 2001
The above-captioned matter was heard as a contested case on June 21 and
July 12, 2000 at which times the complainants and the respondent appeared,
stipulated to certain facts and presented testimony, exhibits and argument on
the complaint. Pursuant to §1-206(b)(1),
G.S., the hearing officer granted party status to Philip Bunker, whose
personnel file records are at issue.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent is a public agency within the meaning of §1-200(1), G.S.
2. It is found that by letter dated April 26, 2000, the complainants requested that the respondent provide them with a copy of the personnel file for Philip Bunker, a teacher who retired from the Vernon school system effective June 30, 1999 (hereinafter “requested records”.
3. It is found that by letter dated April 28, 2000 the respondent acknowledged receipt of the request and informed the complainants that he provided Bunker with notice of the request, pursuant to §1-20a(b), G.S., now §1-214(b), G.S.
4. It is found that by letter dated May 2, 2000 the respondent informed the complainants that Bunker had filed a written objection to the disclosure of the requested records and consequently, pursuant to §1-20a(c), G.S., now §1-214(c), G.S., he could not release the records unless ordered to do so by the Freedom of Information (“FOI”) Commission.
5. Having failed to receive the requested records, the complainants, by letter dated and filed on May 30, 2000, appealed to the Commission, alleging that the respondent violated the FOI Act by denying them a copy of the requested records.
6. 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…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. Section 1-214(b), G.S., further provides:
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 (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 and similar files when it does not reasonably believe that such disclosure would legally constitute an invasion of personal privacy.
8. It is found that the respondent maintains the requested records and such records are “public records” within the meaning of §1-210(a), G.S.
9. It is also found that Bunker objected to the release of the requested records by letter dated May 1, 2000.
10. At the hearing in this matter, the parties agreed that “records of teacher performance and evaluations” are permissively exempt from public disclosure pursuant to §10-151c, G.S., which provides, in relevant part:
records maintained or kept on file by any local or regional board of education
which are records of teacher performance and evaluation shall not be deemed
public records and shall not be subject to the provisions of §1-210,
provided that any teacher may consent in writing to the release of his records
by a board of education.
11. It is found that Bunker is a teacher within the meaning of § 10-151c, G.S., and he has not consented to the release of records of teacher performance and evaluation, within the meaning of §10-151c, G.S. Consequently, it is concluded that the respondent is not required to disclose the records of teacher performance and evaluations contained in Bunker’s personnel file.
12. Bunker and the
respondent claim that the in camera records are exempt from
disclosure pursuant to §1-210(b)(2), G.S.
13. Section 1-210(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. Pursuant to Perkins v. Freedom of Information Commission, 228 Conn. 158 (1993), the appropriate test when examining a claim of exemption pursuant to §1-210(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. Following the hearing in this matter, the respondent submitted the records at issue to the Commission and an in camera inspection was conducted.
16. For identification purposes, the in camera records consist of 53 pages and have been marked as follows: IC page # 2000-265-1 through IC page # 2000-265-53.
17. It is found that the in camera records are “personnel” files within the meaning of §1-210(b)(2), G.S., and Perkins.
18. It is also found that the in camera records consist of records concerning Bunker’s resignation, retirement and suspension from the Vernon public school system; a police report, court documents and newspaper articles pertaining to a US District Court case on possession of child pornography; records relating to a request by the respondent for revocation of Connecticut educator certificate; and communications concerning early retirement benefits.
19. It is found that all of the information contained in the in camera records, with the exception of the information personally identifying Bunker’s ex-wife, pertains to legitimate matters of public concern.
20. It is further found that some of the information contained in the police report, specifically a) the information detailing Bunker’s involvement with a student, and b) the information personally identifying Bunker’s ex-wife, would be highly offensive to a reasonable person.
21. It is therefore concluded that, with the exception of the information personally identifying Bunker’s ex-wife (which meets the Perkins criteria of no legitimate matter of public concern, and highly offensive to a reasonable person) disclosure of the in camera records would not constitute an invasion of privacy and therefore, such records are not exempt from disclosure pursuant to §1-210(b)(2), G.S.
22. Bunker and the respondent
further claim that the in camera records are exempt from
disclosure pursuant to §1-210(b)(4), G.S.
23. Section 1-210(b)(4), G.S., G.S., permits the nondisclosure of: “[r]ecords pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled”.
24. It is found that respondent failed to prove that it is a party to a pending claim or pending litigation, within the meaning of §1-210(b)(4), G.S. Further, the in camera records do not pertain to any strategizing or negotiations regarding any pending claim or litigation. Consequently, it is concluded that the in camera records are not exempt from disclosure pursuant to §1-210(b)(4), G.S.
25. Although not in itself dispositive as to whether the in camera records are disclosable, it is found that Bunker publicly pled guilty to possession of child pornography in US District Court, and therefore the information contained in the in camera records concerning that matter is already a part of the public court records.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Forthwith the respondent shall provide the complainant with a copy of the in camera records, with the exception of the information that would personally identify Bunker’s ex-wife, contained in the police report.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 24, 2001.
Petrea A. Jones
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:
200 Adams Street
Manchester, CT 06040
Superintendent of Schools,
Vernon Public Schools
c/o Peter A. Janus, Esq.
Siegel, O'Connor, Schiff & Zangari, P.C.
150 Trumbull Street
Hartford, CT 06103
c/o Richard R. Brown, Esq.
Brown, Paindiris & Scott, LLP
100 Pearl Street
Hartford, CT 06103
Petrea A. Jones
Acting Clerk of the Commission