OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by
James Leonard, Jr.,
Docket #FIC 2000-537
Department, City of
March 28, 2001
The above-captioned matter was heard as a contested case on October 26, 2000, at which time the complainant and the respondent appeared, and presented testimony, exhibits and argument on the complaint. Pursuant to §1-206(b)(1), G.S., the following employees, whose personnel file records are at issue, were granted party status in this matter: Captain Robert Remillard, Detective Daniel Phillips, Detective Alicides Morales and Detective William Chutes. Remillard and Phillips are no longer employed by the New Britain Police Department; Remillard went on disability in October 1993 and Phillips resigned in August 2000. At the hearing in this matter, the respondent agreed to submit the records at issue to the Commission for an in camera inspection. However, no records were submitted; hence, no in camera inspection was conducted.
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),
2. It is found that by certified
letter dated September 15, 2000, the complainant requested that the respondent
provide him with the following, (hereinafter “requested records”):
all personnel files for Captain Robert
Remillard, and Detectives Daniel Phillips, Alicides Morales and William
all information regarding the officers
described in 2a) above, pertaining to civil violations, job performance
misconduct, lack of credibility, bias, history of excessive force used, and
pertaining to drug use, drug programs and racial bias; and
all files and actions taken on
complaints filed against the officers described in 2a) above, by the public,
the New Britain Police Department and Unions.
3. Having failed to receive a
response, the complainant appealed to the Commission by letter filed on September 28, 2000, alleging that the
respondent violated the Freedom of Information (“FOI”) Act by denying him
access to the requested records.
At the hearing in this matter, the complainant requested that a civil
penalty be imposed upon the respondent.
4. In addition, at the hearing in this matter, the respondent indicated that he first became aware of the records request at issue when the Commission notified him of the complaint. However, following discussions with the complainant’s counsel, the respondent indicated that he did not dispute receipt of the request.
5. Section 1-210(a), G.S.,
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 1-212. 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.
6. 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.
7. It is found that the
respondent maintains on file the personnel files of Remillard, Phillips,
Morales and Chutes, and such files contain records responsive to the
complainant’s request (hereinafter “personnel file records”).
It is also found that by letter dated October 16, 2000 the respondent
notified Remillard, Phillips, Morales and Chutes of the complainant’s
records request and of the hearing in this matter.
It is further found that Remillard, Phillips, Morales and Chutes filed
objections to the disclosure of the requested records, indicating that
disclosure would constitute an invasion of privacy.
8. It is concluded that the personnel file records maintained by the respondent and described in paragraph 7, above are “public records” within the meaning of §1-210(a), G.S.
9. The respondent first contends that the personnel file records at issue are not disclosable to the complainant and relies on State of Connecticut v. James Leonard, 31 Conn. App. 178 (1993); specifically, the respondent contends that in State v. Leonard, the court addressed whether the personnel files of Remillard, Phillips, Morales and Chutes were disclosable to the complainant during discovery, and denied such request. The respondent contends that the complainant is now barred from requesting the personnel files of Remillard, Phillips, Morales and Chutes on the theory of collateral estoppel or issue preclusion.
10. The respondent contends in the alternative, that if the Commission find that the personnel files are disclosable, then certain portions containing personally identifiable information should be redacted prior to such disclosure.
11. With respect to the respondent’s first contention, it is found that the issue addressed by the court in State v. Leonard is different form the issue raised here. The issue here is whether the complainant is entitled to access to the personnel files under the FOI Act, while the court in State v. Leonard addressed the complainant’s right to access to the personnel files under the rules of discovery.
12. The standard of review in State v. Leonard was one applicable in the context of discovery, a different standard than that set forth in Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993), which is the applicable standard in reviewing a records request made pursuant to the FOI Act.
13. Our Supreme Court has made clear the principle that the FOI Act and the discovery process are two separate and independent vehicles for accessing records, and that the fact that an individual may have made a request by way of one such vehicle does not preclude that individual from requesting the same records by way of the other. See Chief of Police, Hartford Police Department v. Freedom of Information Commission et al., 252 Conn. 377 (2000), concluding that a public agency must disclose records under the FOI Act even if those records are, or might be subject to the rules of discovery in either federal or state court proceedings.
14. Consequently, it is concluded that the complainant is not barred by the decision in State v. Leonard from now requesting under the FOI Act the same or similar personnel file records he requested during the discovery process. Further, State v. Leonard was decided in May 1993 and, it is found that some of the personnel file records at issue in this case post-date that decision, and therefore, were not at issue in that case.
15. With respect to the respondent’s second claim, §1-210(b)(2), G.S., permits the nondisclosure of personnel, medical or similar files the disclosure of which would constitute an invasion of personal privacy.
16. It is found that the records at issue constitute “personnel, medical and similar” files within the meaning of §1-210(b)(2), G.S.
17. Pursuant to Perkins supra, 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.
18. It is found that the personnel file records at issue pertain to legitimate matters of public concern.
19. It is further found that disclosure of the personnel file records at issue would not be highly offensive to a reasonable person.
20. It is therefore, concluded that disclosure of the personnel file records at issue would not constitute an invasion of privacy, and consequently such records are not exempt from disclosure pursuant to §1-210(b)(2), G.S.
21. It is found however, that some of the personnel file records at issue may contain the residential addresses and telephone numbers of the subjects of such records.
22. Section 1-217, G.S.,
provides, in relevant part: “(a) No public agency may disclose, under
the Freedom of Information Act, the residential address of …(2)
A sworn member of a municipal police department or a sworn member of
the Division of State Police within the Department of Public Safety.”
23. It is therefore, concluded that to the extent that the records at issue contain the residential addresses of Remillard, Phillips, Morales and Chutes, such addresses are exempt from disclosure pursuant to §1-217(a)(2), G.S. In addition, the Commission in its discretion declines to order the disclosure of any home telephone numbers that may be contained in the records.
24. It is also concluded that, to the extent that the personnel file records at issue contain the following: information concerning spouses, children, bank account numbers, financial lending institutions and medical information, such information is exempt within the meaning of §1-210(b)(2), G.S. and the respondent did not violate §1-210(a), G.S., when he failed to provide the complainant with access to such information.
25. In addition, the Commission has historically declined to order the disclosure of social security numbers. See contested case docket #FIC 89-76, Eric Garrison v. Supervisor, Unclaimed Property Division, State of Connecticut, Office of the Treasure. Consequently, in keeping with Commission precedent, the Commission declines to order the disclosure of any social security numbers contained in the personnel file records at issue.
26. In sum, it is concluded that the respondent violated §1-210(a), G.S., when he failed to provide the complainant with access to the personnel file records at issue, excluding the residential addresses, home telephone numbers, information concerning spouses, children, bank account numbers, financial lending institutions, medical information and social security numbers, described in paragraphs 23 through 25, inclusive, above. However, no civil penalty is deemed appropriate in this case.
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 access to inspect, and to obtain a copy of the personnel file records of Remillard, Phillips, Morales and Chutes.
2. In complying with paragraph 1 of the order, the respondent may redact the following information: residential addresses, home telephone numbers, information concerning spouses, children, bank account numbers, financial lending institutions, medical information and social security numbers.
Approved by Order of the Freedom of Information Commission at its regular meeting of March 28, 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:
James Leonard, Jr.
c/o Carmine J. Giuliano, Esq.
Fusco & Giuliano
39 Russ Street
Hartford, CT 06117
Chief, Police Department
City of New Britain
c/o Joseph E. Skelly, Jr., Esq.
27 West Main Street
New Britain, CT 06051
Petrea A. Jones
Acting Clerk of the Commission