FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Nancy L. Thompson and the

Manchester Journal Inquirer,

 
  Complainant  
  against   Docket #FIC 2006-337
Chief, Police Department,
Town of East Windsor,
 
  Respondents April 25, 2007
       

              

The above-captioned matter was heard as a contested case on December 11, 2006, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The records at issue were reviewed in camera.  Raymond Humphrey, the subject of the records at issue in this matter, was notified of the hearing in this matter, but did not appear.

 

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 prior to June 6, 2006, a reporter for the complainants made a request for a copy of an internal affairs investigation report, IA 5-09-IA, (hereinafter “requested record”) concerning Officer Raymond Humphrey, who has since resigned from the respondent department.

 

3.  It is found that prior to June 6, 2006, the respondent notified Mr. Humphrey, the subject of the requested record, of the request described in paragraph 2, above.

 

4.  It is also found that prior to June 6, 2006, Mr. Humphrey notified the respondent of his objection to disclosure of the requested record, in writing.

 

5.  It is found that, by letter dated June 6, 2006, the respondent informed the complainants that Mr. Humphrey objected to the disclosure of the requested record and therefore, such record would not be released “unless ordered to do so by the Freedom of Information Commission or upon receipt of written notice of approval of disclosure from Raymond Humphrey.”

 

6.  By letter of complaint dated June 26, 2006, and filed with the Commission on July 3, 2006, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to provide them with a copy of the requested record.

 

7.  Section 1-200(5), G.S., provides:

 

“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.”

 

8.  Section 1-210(a), G.S., further provides in relevant part that:

 

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 … receive a copy of such records in accordance with section 1-212.

 

9.  It is found that the respondent maintains the requested record and that such record is a public record within the meaning of 1-200(5) and 1-210(a), G.S.

 

10.  Following the hearing in this matter, the respondent submitted a copy of the requested record to the Commission for an in-camera inspection (hereinafter “in camera record”).  The in camera record consists of six pages that have been marked as IC# 2006-337-1 through IC# 2006-337-6, for identification purposes.

11. The respondent contends that the in camera record is exempt from disclosure pursuant to 1-210(b)(2), G.S.

12.  Section 1-214(c), G.S., provides in relevant part that:

 

“[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 … 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….”

 

13.  Section 1-214(b), G.S., in relevant part states:

 

“[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 (1) each employee concerned, provided such notice shall not be required to be in writing where impractical due to the large number of employees concerned and (2) the collective bargaining representative, if any, of each employee concerned….”

 

14.  It is found that Raymond Humphrey timely filed an objection to disclosure, within the meaning of 1-214, G.S.

 

15.  Section 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.  The Supreme Court set forth the test for the 1-210(b)(2), G.S., exemption in Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993), which test has been the standard for disclosure of records pursuant to that exemption since 1993. 

 

17.  Specifically, under the Perkins test, 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 disclosure of such information is highly offensive to a reasonable person.

 

18.  It is found that the in camera record is a “similar file” within the meaning of 1-210(b)(2), G.S.

 

19.  It is found that the in camera record was compiled by the East Windsor Police Department (hereinafter “EWPD”) in connection with an Internal Affairs (“IA”) investigation into Richard Humphrey’s conduct.

 

20.  It is found that the in camera record consists of the EWPD’s investigation, findings, conclusions and recommendation concerning an allegation of misconduct on the part of Richard Humphrey.

 

21.  It is found that IC# 2006-337-1 through IC# 2006-337-6 pertains to legitimate matters of public concern because the information contained therein concerns and implicates the conduct of a police officer, and also discloses the process by which the EWPD conducted the IA investigation.  It is also found that disclosure of such documents would not be highly offensive to a reasonable person.

 

22.  It is therefore concluded that disclosure of the in camera record would not constitute an invasion of personal privacy and therefore, such record is not permissibly exempt from disclosure pursuant to 1-210(b)(2), G.S.

 

23.  It is further concluded that the respondent violated 1-210(a), G.S., when he failed to provide the complainants with a copy of the in camera record.

 

            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 complainants with a copy of in camera record IC# 2006-337-1 through 6.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 25, 2007.

 

________________________________

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:

 

Nancy L. Thompson and the

Manchester Journal Inquirer

306 Progress Drive

PO Box 510

Manchester, CT 06045-0510

 

Chief, Police Department,
Town of East Windsor

c/o Stephen T. Penny, Esq.

Penny, Botticello, & O’Brien, P.C.

202 West Center Street

Manchester, CT 06040

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-337FD/paj/4/30/2007