FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION UPON REMAND

Alexander Wood, Jenna N. Carlesso,

and The Manchester Journal Inquirer,

 
  Complainants  
  against   Docket #FIC 2007-585

Director, Human Resources, Town of Enfield;

Department of Human Resources,

Town of Enfield; and Duane Tompkins,

 
  Respondents April 14, 2010
       

 

            On February 19, 2008, Duane Tompkins moved for status as a party, and his motion was granted on February 20, 2008.  The caption of the case has been amended accordingly. On February 21, 2008, the Freedom of Information Commission (“Commission” or sometimes “FOIC”) issued an order for the production of records for an in camera inspection. On March 14, 2008 the respondents, Director, Human Resources, Town of Enfield, and Department of Human Resources, Town of Enfield (the “Town respondents”), submitted records for in camera inspection.  A detailed six-page index accompanied and addressed the in camera records that were claimed to be exempt, stating the specific exemption or exemptions claimed for each record, on a line-by-line basis when an entire page was not claimed to be exempt.  The matter was heard as a contested case on March 27, 2008, at which time the complainants and the respondents appeared and presented testimony, exhibits and argument on the complaint.

 

            A proposed final decision prepared by the hearing officer was mailed to the parties on May 8, 2008.  At a meeting of the Commission on May 28, 2008, the Commission voted to table this proposed final decision.  At a special meeting on June 17, 2008, the Commission voted to reject the proposed final decision prepared by the hearing officer and directed the staff to prepare a new proposed final decision consistent with the Commissioners’ comments at the June 17, 2008 special meeting. 

 

A proposed final decision prepared by the Commission’s staff was mailed to the parties on July 24, 2008.  At a meeting on August 13, 2008, the Commission considered the proposed final decision.  After hearing argument from the parties, the Commission moved to amend the proposed final decision to find that two additional records contained the residential address of a police officer and that such addresses were properly withheld pursuant to 1-217, G.S.  Thereafter, the Commission unanimously adopted the amended proposed final decision.  Notice of the final decision was mailed to the parties on August 20, 2008.

 

On October 3, 2008, Duane Tompkins appealed the Commission’s final decision to the Superior Court.  On October 6, 2008, the Town of Enfield appealed the Commission’s final decision to the Superior Court.  On July 13, 2009, the Superior Court issued its memorandum of decision on both appeals.  In the memorandum of decision, the Superior Court requested that the Commission review the in camera records again, and consider amending its final decision.  Specifically, the Superior Court requested that the Commission reconsider whether the disclosure of certain portions of the in camera records might constitute an invasion of personal privacy pursuant to 1-210(b)(2), G.S. The Court remanded the case back to the Commission so that it could reconsider limiting disclosure of certain portions of the in camera records. [1]  

 

At a meeting on July 22, 2009, the Commission reconsidered the proposed final decision in light of the Superior Court’s remand order, and voted unanimously to amend the final decision as suggested by the Court.  After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.  The Town respondents are public agencies within the meaning of 1-200(1)(A), G.S.

 

2.  It is found that by letter dated October 15, 2007, the complainants made a request to the Town respondents for the following records:

 

all records generated or received by the Town of Enfield, including the Enfield Police Department, in connection with the recent suspension of a police lieutenant.  This request includes but is not limited to all records related to the facts or allegations that led to the suspension, including facts uncovered by the internal investigation, and all records setting forth the starting and ending dates of the suspension and any effects the suspension may have had on the lieutenant’s compensation (the “requested records” or sometimes the “records”). 

 

3.  It is found that by letter dated October 16, 2007, the Town respondents acknowledged the complainants’ request and stated that the unnamed police lieutenant would be notified of the request pursuant to 1-214(b), G.S.  The Town respondents also promised to notify the complainants within a reasonable time concerning the results of their review of the requested records in order to ensure compliance with the Freedom of Information Act (“FOIA”).  

 

4.  It is found that, by letter dated October 22, 2007, the Town respondents informed the complainants that the “employee in question has objected” to disclosure of the requested records.  By the same letter, the Town respondents declined to provide the records to the complainants pursuant to 1-214(c), G.S. The Town respondents also asserted exemptions pursuant to 1-210 and 1-217, G.S.  

 

5.  It is found that, by letter dated October 26, 2007 and filed with the Commission on October 30, 2007, the complainants appealed to the Commission, alleging that the failure of the Town respondents to disclose the requested records violated the FOIA.

 

6.  Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:

 

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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

 

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.

 

7.  Section 1-210(b), G.S., states in relevant parts:

 

Nothing in the Freedom of Information Act shall be construed to require disclosure of:

 

….

 

(2) Personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy;

 

(3) Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of…. (G) uncorroborated allegations subject to destruction pursuant to section 1-216. . . . (Emphasis supplied).

 

8.  Section 1-216, G.S., states:   

 

Except for records the retention of which is otherwise controlled by law or regulation, records of law enforcement agencies consisting of uncorroborated allegations that an individual has engaged in criminal activity shall be reviewed by the law enforcement agency one year after the creation of such records.  If the existence of the alleged criminal activity cannot be corroborated within ninety days of the commencement of such review, the law enforcement agency shall destroy such records. (Emphasis added)

 

9.  Sections 1-214(b) and (c), G.S., state in relevant parts: 

 

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.

 

….

 

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….

 

10.  Section 1-217(a)(2), G.S., states in relevant part:

 

No public agency may disclose, under the Freedom of Information Act, the residential address of any of the following persons…[a] sworn member of a municipal police department….

 

11.  It is found that by letter dated February 5, 2008, the Town respondents provided the complainants with one record within the scope of the complainants’ request, specifically a copy of the severance agreement between respondent Tompkins, the Town of Enfield, and Enfield Police Local 798, Council #15.

 

 12.  It is found that the severance agreement was executed by the parties on October 9, 2007, but the agreement, by its express terms, permitted Tompkins to remain on the payroll and receive benefits through July 9, 2008. 

 

13.  It is also found that the severance agreement states that there were “disputes between [respondent] Tompkins and the Police Department concerning his off-duty conduct” and that respondent “Tompkins (…) decided to resign his position in lieu of further proceedings. . . .”  However, it is further found that the severance agreement states that Tompkins’ resignation was “not voluntary.”

 

14.  It is also found that, for purposes of addressing future inquiries from prospective employers, the severance agreement states the following: 

 

Any inquiry from a prospective employer of Tompkins shall be directed to the Director of Human Resources.  In response to such a request, the Town shall disclose only his inclusive dates of employment, the position(s) he held, the job description for the position(s) he held, and his final rate of pay.  In addition, the Town shall disclose any documents from Tompkins’ personnel file for which Tompkins provides a written release and authorization. 

 

15.  It is found that the in camera records originally included a loose-leaf binder, referred to as item 1, with records organized by tabs A through J.  Additionally, the in camera records also included items marked as “Reference 2” through “Reference 11.” 

 

16.  It is also found that, at the March 27, 2008 hearing, all the respondents agreed that the Town respondents would provide the complainants with: a) the record or records which documented the compensation status of respondent Tompkins after he was suspended and until the severance agreement became effective; and b) the in camera records marked as “reference 8” through “reference 11.”  By letter dated April 15, 2008, the Town respondents forwarded the in camera records marked as “reference 8” through “reference 11” to the complainants.[2] 

 

17.  It is found that the remaining in camera records—that is, item 1 comprised of tabs A through J, and References 2 through 7, can be separated into two categories of records.  It is found that the first category is comprised of tab A at page 6 and following, and tabs D through I, with the exception of tab G at page 16 and following, which records are verbatim transcripts of instant messages between Tompkins and third parties.  It is found that the second category is comprised of the remaining tabs in item 1 (that is, tab A at pages 1 through 5, tab B, tab C, tab G at pages 16 through 18, tab J), and References 2 through 7, which records arise from the Tompkins internal affairs investigation.

 

18.  It is found that the Town respondents maintain the records and keep them on file.  It is therefore concluded that the requested records are public records within the meaning of 1-210(a) and 1-212(a), G.S.

 

19.  In their brief, the Town respondents claimed that all the in camera records are exempt from mandatory disclosure pursuant to 1-210(b)(2), G.S.  At the March 27, 2008 hearing and in his brief, respondent Tompkins claimed that all the in camera records, except for the records discussed at paragraph 16, above, were exempt from mandatory disclosure pursuant to 1-210(b)(2), G.S.  In their brief, the Town respondents also claimed that all the records are exempt from mandatory disclosure pursuant to 1-210(b)(3)(G), G.S.  The Town respondents thereby expanded upon the claims in the index to the in camera records, where, in general terms, they claimed that most of the in camera records are exempt from mandatory disclosure pursuant to 1-210(b)(2), G.S.; that some records are exempt pursuant to 1-210(b)(3)(G), G.S., alone; and in many cases, that records are exempt pursuant to both of these exemptions.  On the in camera index, for two lines in one of the records (see 20 and 21, below), the Town respondents claimed the exemption at 1-217, G.S.

 

20.  With regard to the Town respondents’ claims of exemption pursuant to 1-217, G.S., it is found that the in-camera record referred to as item 1 (the loose-leaf binder), tab A, page 2, line 37, (words five through fifteen) states the residential address of a police officer.  It is further found that, with reference to the in camera records referred to as item 1 (the loose-leaf binder), tab B, page 3, line 29 (words twelve and thirteen), and tab J, first[3] page 1, line 15 (word eleven), the information stated could easily be used to identify the residential address of a police officer.  Finally, it is found that all of the addresses located on page 8A of item 1, tab f are residential addresses of police officers. 

 

21.  Based upon the findings at paragraph 20, above, it is concluded that those portions of the in camera records specifically identified in the preceding paragraph contain information that is exempt from mandatory disclosure pursuant to 1-217(a)(2), G.S.  It is further concluded that the Town respondents did not violate the FOIA by withholding from the complainant those portions of the in camera records specifically identified in paragraph 20, above.   

 

22.  The respondents next claim that the records are exempt pursuant to 1-210(b)(2), G.S.  In Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993) (“Perkins”), the Supreme Court set forth the test for an invasion of personal privacy, necessary to establish the exemption at 1-210(b)(2), G.S.  The claimant must first establish that the records 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.   The Commission takes administrative notice of the multitude of court rulings, Commission final decisions1, and instances of advice given by the Commission and staff members2, which have relied upon the Perkins test, since its release in 1993.

 

23.  It is found that all of the requested records are "personnel" files or "similar files" within the meaning of 1-210(b)(2), G.S.  See Connecticut Alcohol and Drug Abuse Commission v. FOIC, 233 Conn. 28 (1995). 

 

24.  Based on the in camera inspection, it is found that all of the records comprising Tompkins’ internal affairs investigation—that is, item 1, tab A, pages 1 through 5; tab B; tab C; tab G, pages 16 through 18, tab J, as well as all pages of reference 2 through reference 7, inclusive, of the requested records pertain to a legitimate matter of public concern.  (See description of internal affairs records, also referred to as “the second category” of records, at 17, above). 

 

25.  It is found that the in camera records identified in paragraph 24, above, evidence a continuing practice that could pose a danger to portions of the public.  The more egregious the specific behavior, the more a finding of legitimate public concern is warranted concerning the records describing the behavior.  Further, the fact that respondent Tompkins remained on the payroll of the Town of Enfield for ten months after the execution of the severance agreement, as well as the fact that the Town agreed to allow Tompkins to have control over the release of his employment records (see 12, 14, above), adds to the legitimacy of the public concern in this case. 

 

26.  Because the requested records identified in paragraph 24, above, are found to pertain to a legitimate matter of public concern, it is not necessary to adjudicate the claim that these records are highly offensive to a reasonable person. Perkins at 173-175.  Perkins states unambiguously that information “that would be considered highly offensive to a reasonable person would not preclude its disclosure if such information were determined to be of legitimate public concern.” Id. at 174.  Moreover, the Supreme Court identified the same principle in its earlier discussion of the tort invasion of privacy.  Id. at 173.        

 

27.  Based upon the findings at paragraphs 24 through 26, above, it is concluded that the internal investigation records identified at paragraph 24, above, are not exempt from mandatory disclosure as records the disclosure of which would constitute an invasion of personal privacy pursuant to 1-210(b)(2), G.S.

 

28.  With respect to the first category of records identified in paragraph 17, above, which records comprise the verbatim transcripts of the instant messages between Tompkins and third parties—that is, tab A at page 6 and following, and tabs D though I, with the exception of tab G at pages 16 through 18, it is found that some of the language in these records must be construed in the context of Rocque v. FOIC, 255 Conn. 651 (2001).  In Rocque, the Supreme Court held that the “sexually explicit or descriptive information” in that case was not a legitimate matter of public concern.  Id. at 665.  However, the Court also specifically held that such types of facts are not always exempt from disclosure.  Id. at 654. 

 

29.  It is found that, because this Commission has determined that the records comprising the internal affairs investigation in this case are a legitimate matter of public concern (see 24, above), it is found that the sexually explicit language contained in the verbatim transcripts “is not necessary to the public’s understanding or evaluation of the department’s . . . investigation.”  See Rocque, 255 Conn. at 664. 

30.   Based upon careful review of the in camera records and upon the findings in paragraph 29, above, it is found that the sexually explicit language specifically identified as follows does not pertain to legitimate matters of public concern: 

 

Tab A:

Page 6: line 7, words 4, and 9; line 11, word 5; line 12, words 8 and 9; line 21, words 5, 7, and 8; line 23, words 6, 8, 9, 15, and 17; line 29, words 7, 10, 11, and 16; line 30, words 1, 2, 4, and 5; line 32, word 7; line 37, words 11, 12 and 14; line 43, words 6, 10, 13; line 44, word 1;

Page 7: line 2, word 13; line 6, word 4; line 9, word 11; line 30, word 5, 7, 8, and 10; line 35, word 6;

Page 8: line 5, word 10; line 15, words 8 and 9.

Tab D:

            Page 1: line 8, word 6; line 13, words 2 and 5; line 30, word 8; line 34, word 6; line 57, word 10.

Tab E:

            Page 1: line 55, word 6;

            Page 4: line 21, words 4 and 6; line 23, words 10 and 11;

            Page 5: line 8, word 3; line 12, word 6; line 18, word 9;

            Page 6: line 37, word 6;

            Second Page 2: line 43, words 2, and 4; line 44, word 5; line 47, words 7 and 11; line 49, word 5; line 50, word 12; line 51, word 6; line 52, words 4 and 8;

            Second Page 1: line 12, word 5; line 14, words 5 and 7; line 21, words 8, 9, 10, 12 and 14; line 28, word 8; line 36, word 8; line 39, words 5 and 9; line 40, word 3; line 42, words 9 and 14; line 43, words 4, 7, and 8; line 44, words 5, 6, 7, 11, 14 and 15; line 61, word 10;

            Third Page 2: line 9, words 4 and 7; line 10, words 5 and 6; line 16, word 10;

            Fourth Page 1: line 16, word 5;

            Fifth Page 1: line 9, words 3 and 10; line 59, word 7;

            Fifth Page 2: line 3, words 3 and 5; line 53, words 5 and 8; line 53, words 7 and 11.

 

 

Tab F:

            Page 1: line 18, words 4, 8, 9, and 10; line 19, words 1 and 2; line 21, word 5; line 22, words 8, 10 and 12; line 23, words 6 and 14; line 25, words 2 and 4; line 39, words 14 and 16; line 55, words 8, 9, and 10;

            Page 2: line 21, words 4, 5, 8 and 9; line 22, words 4 and 6; line 23, words 7, 11, 13 and 15; line 25, word 5; line 28, word 7; line 29, word 3; line 30, word 6; line 31, word 4; line 32, word 8; line 40, words 9 and 13; line 41, words 5 and 6; line 43, word 12; line 46, word 14; line 47, words 3 and 6; line 57, word 9; line 60, word 14; line 61, word 4;

            Page 3: line 2, word 8; line 8, word 7; line 26, word 4; line 30, word 17; line 31, word 3; line 33, word 6; line 35, word 5; line 36, words 6 and 7; line 37, word 3; line 38, word 10; line 39, word 4, 5, 6, 7 and 8; line 41, word 5; line 43, word 5; line 44, word 6; line 48, word 9; line 49, word 8; line 51, word 12; line 52, words 4 and 5; line 59, word 10;

            Page 4: line 18, word 9; line 19, words 5 and 6; line 20, word 5; line 21, word 8; line 23, words 5 and 6; line 29, 5 and 9; line 30, words 1 and 3; line 31, words 5, 7, 12, 14 and 16; line 32, words 1 and 3; line 33, words 2, 4, 9, 11 and 13; line 34, word 7; line 36, word 6; line 38, words 6 and 8; line 39, words 1, 5, 8, 11, 12, 14, 16 and 18; line 44, words 4, 6, 8, 9, 12, 13 and 15; line 45, words 8 and 10;

            Page 5: line 9, words 5, 13 and 14; line 10, words 3, 6, 7, 8, 12 and 15; line 18, words 5, 13 and 14; line 19, words 3, 6, 7, 8, 12 and 15;

            Page 6: line 12, word 8; line 15, words 10 and 12; line 17, words 6 and 9; line 18, words 6 and 8; line 19, word 8; line 20, word 4; line 21, words 5 and 10; line 24, words 6 and 7; line 25, words 2 and 3; line 40, words 6 and 7; line 41, word 2; line 45, word 10; line 46, words 4, 7, 14 and 17; line 48, words 6, 7 and 10; line 49, words 7 and 16; line 50, word 6; line 52, word 5; line 54, words 10 and 14; line 56, 3 and 6; line 57, word 10; line 59, word 7;

            Page 7: line 51, words 10 and 12; line 52, word 1; line 53, words 5, 8 and 12;

            Page 8: line 3, word 7 and 12; line 6, word 5, 11 and 16; line 7, word 5;

            Page 9: line 38, word 2; line 39, word 4; line 40, word 4;

            Page 10: line 35, word 13; line 56, word 2; line 58, word 8, line 60, word 15;

            Page 11: line 5, word 4; line 6, word 13; line 8, word 6, 8 and 9; line 9, words 6 and 8, line 10, words 5, 10 and 12; line 13, words 8 and 12; line 15, word 13; line 18, word 4; line 19, 10; line 37, word 6 and 10;

            Second Page 1: line 9, words 8 and 12; line 12, words 4, 5, 6, 9 and 13; line 14, word 3; line 15, word 4; line 16, words 6 and 8; line 22, words 6, 9 and 14; line 29, words 6, 9 and 14; line 32, words 5 and 8; line 44, word 9; line 56, word 4; line 57, words 11 and 13;

            Third Page 1: line 45, words 5, 6, 7, 8 and 9;

            Third Page 2: line 4, word 6; line 5, word 1; line 6, words 6, 7, and 14; line 7, words 2, 5, 6, and 8; line 12, word 7; line 15, words 13, 14 and 15; line 16, words 1 and 3; line 20, words 4 and 7; line 28, words 14 and 15; line 48, words 5 and 7;  

            Second Page 7: line 30, 3; line 36, words 8, 11, 14 and 19; line 39, word 7; line 44, word 6; line 47, word 7; line 51, word 4; line 55, word 16;   

            Second Page 8: line 12, word 4; line 59, word 7;

            Second Page 9:  line 3, word 11; line 6, word 6; line 7, word 8; line 12, words 5 and 7; line 33, word 13; line 38, word 6; line 41, word 5.

 

Tab G:

            Page 1: line 29, word 9; line 41, word 5; line 54, word 4;

            Page 2: line 61, words 5 and 8;

            Page 3: line 2, words 3 and 6; line 3, word 3; line 7, word 2; line 8, words 5, 7 and 11; line 9, word 5; line 29, word 4; line 32, words 7 and 9; line 52, words 8 and 10; line 53, word 4; line 54, words 8 and 9; line 58, words 5 and 7;

            Page 4: line 23, words 6, 8 and 9; line 30, words 3, 9 and 16; line 31, words 6 and 7; line 41, word 6; line 52, word 6; line 57, word 4; line 59, word 6; line 60, words 6 and 14; line 61, words 6, 7, and 8;

            Page 5: line 9, words 4, 8, 15, 16, 17; line 10, words 6, 9, 14, line 37, word 2; line 38, word 6; line 39, words 8, 9, and 11; line 46, 1, 6 and 7;

            Page 6: line 7, word 4; line 9, word 2; line 10, words 7 and 15; line 20, word 3; line 22, words 2 and 8; line 25, word 7; line 31, words 4 and 14; line 40, word 9; line 42, words 5 and 11; line 45, words 8, 15, 17 and 18; line 46, word 4; line 49, words 9 and 10; line 54, word 7;

            Second Page 1: line 39, words 3 and 7; line 44, word 6; line 45, words 6, 7, and 8; line 48, word 13; line 49, words 3 and 5;

            Third Page 2: line 27, word 5;

            Fourth Page 1: line 40, word 4; line 51, word 4; line 52, words 5 and 7;

            Fifth Page 1: line 47, words 5, 6, 9 and 14; line 48, words 1 and 2; line 52, words 5, 6, 7, and 10; line 53, words 1, 2, and 3; line 55, words 6, 7, and 8; line 57, word 8;

            Fifth Page 2: line 11, words 4, 6, 7 and 9; line 12, word s 1, 10, 12, 14, and 17; line 21, word 18; line 22, word 12; line 24, word 7; line 27, words 9, 10 and 11; line 37, words 12 and 14; line 40, word 7; line 45, word 12; line 47, words 5, 7 and 8; line 54, word 7; line 61, word 4; line 62, words 7, 8, 10 and 12;

            Second Page 3: line 3, words 10, 11, 12, and 15; line 4, word 1; line 12, word 7; line 15, words 13, 15 and 16; line 16, words 6, 9 and 11; line 17, word 3; line 19, words 4, 5, 6 and 7; line 20, word 4; line 21, words 6 and 8; line 23, word 2; line 24, word 5;

            Sixth Page 2: line 3, words 6 and 7.

 

Tab I:

            Page 1: line 23, words 5, 8, 9, 10, 13, and 14; line 27, word 5; line 33, words 3 and 10; line 34, word 4; line 38, words 5 and 9; line 39, words 9 and 10;

            Second Page 1: line 15, words 4 and 9; line 19, word 5; line 20, words 8 and 9; line 29, words 5, 7 and 8; line 31, words 6, 8, 9, 15 and 17; line 37, words 7, 10, 11 and 16; line 38, words 5 and 6; line 40, word 7; line 45, words 11, 12, and 14; line 51, words 6, 10, 13; line 52, word 1; line 56, word 13;

            Page 2; line 3, word 4; line 6, word 11; line 27, words 5, 7, 8, and 10; line 32, word 6; line 48, word 10; line 57, words 8 and 9;

            Third Page 1: line 26, words 6, 7, 8, and 10; line 29, words 5, 7, 8, 9, 14, and 15; line 30, word 1; line 53, word 12.

 

31.  It is further found that release of the portions of the in camera records specifically identified in paragraph 30, above, would be highly offensive to a reasonable person.

 

32.  It is concluded that disclosure of the portions of the in camera records specifically identified in paragraph 30, above, would constitute an invasion of privacy within the meaning of 1-210(b)(2), G.S.  It is therefore concluded that the portions of the records described in paragraph 30, above, are exempt from mandatory disclosure by virtue of 1-210(b)(2), G.S.  It is further concluded that the respondents did not violate the FOI Act by withholding such records from the complainants. 

 

33.  However, it is found that, other than the portions of the records specifically identified in paragraph 30, above, the records identified in paragraph 28, above, contain the information which formed the basis for and which triggered the internal investigation affairs investigation in this case.  It is further found that the records are necessary to facilitate the public’s understanding and evaluation of the Enfield Police Department’s investigative process, decision-making and overall handling of an important matter involving a fellow police officer.  

 

34.  It is therefore found that, other than the portions of the in camera record specifically identified in paragraph 30, above, the records described in paragraph 28, above, pertain to legitimate matters of public concern.  It is further found that, upon redaction of the portions of the records identified in paragraph 30, above, disclosure of the remaining portions of these records would not be highly offensive to a reasonable person. 

 

35. Based upon the findings at paragraphs 33 and 34, above, it is concluded that the records identified in paragraph 28 (also referred to as the verbatim transcripts of the instant messages between Tompkins and third parties), other than the portions specifically identified in paragraph 30, above, are not exempt from mandatory disclosure as records the disclosure of which would constitute an invasion of personal privacy pursuant to 1-210(b)(2), G.S.

 

36. Finally, the Town respondents claim that the records are exempt pursuant to 1-210(b)(3)(G), G.S. 

 

37.  After a careful review of the in camera records, it is found that none of the requested records were compiled in connection with the detection or investigation of a crime, as required by 1-210(b)(3)(G), G.S.  In fact, it is found that the Town respondents informed Tompkins on at least two occasions that the internal affairs investigation that they were conducting into Tompkins’ off-duty conduct was not a criminal investigation.  See R. at 515-16 and R. at 524-25; see also Danaher v. FOIC, No. CVHHB084016067S, 2008 Conn. Super. LEXIS 2255, at *15 (Conn. Super. Ct. Sept. 5, 2008) (holding that “[s]ince the documents were not compiled in connection with the detection or investigation of a crime, the Commission correctly found that 1-210(b)(3) of the State Act did not apply”).

 

38.  It is further found that none of the records pertain to uncorroborated “allegations” of criminal activity.  It is found that the records are either Tompkins’ communications with third parties—that is, his statements, or the Town respondents’ non-criminal internal affairs investigation.  See 17, above.

 

39.  Based on the findings at paragraphs 37 and 38, it is concluded that the requested records were not compiled in connection with the detection or investigation of a crime and are not uncorroborated allegations subject to destruction pursuant to section 1-216, G.S.   Accordingly, it is concluded that the requested records are not exempt from mandatory disclosure under the provisions of 1-210(b)(3)(G), G.S. 

 

40.  Based on the conclusions in paragraphs 27, 35 and 39, above, it is concluded that the requested records are subject to mandatory disclosure, except for those portions of the records specifically identified as exempt from disclosure in paragraphs 20 and 30, above.   It is further concluded that the Town respondents violated 1-210(a) and 1-212(a), G.S., when they declined to provide such requested records.

 

             The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

1. The Town respondents shall forthwith provide to the complainants a copy of all requested records that have not previously been provided, except for those portions of the in camera records specifically identified in paragraphs 20 and 30 of the findings, above. 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 14, 2010.

 

 

____________________________

S. Wilson

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:

 

Alexander Wood, Jenna N. Carlesso,

and The Manchester Journal Inquirer

306 Progress Drive

P.O. Box 510
Manchester, CT 06045

 

Director, Human Resources, Town of Enfield;

Department of Human Resources,

Town of Enfield

C/o Kevin M. Deneen, Esq. and

Mark J. Cerrato, Esq.

Town Attorney’s Office

Enfield Town Hall

820 Enfield Street

Enfield, CT 06082

 

Duane Tompkins

C/o Elliot B. Spector, Esq.

Noble, Spector & O’Connor P.C.

One Congress Street

Hartford, CT 06114

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2007-585FDUR/sw/4/16/2010

 

                                                               

 

 

 

 

 

 

1.  ENDNOTES

 

Court cases

 

Payne v. City of Danbury, 267 Conn. 669 (2004); Director, Retirement & Benefits Services Div. v. FOIC, 256 Conn. 764 (2001); Rocque v. FOIC, 255 Conn. 651 (2001); Dept. of Public Safety v FOIC, 242 Conn. 79 (1997); Conn. Alcohol & Drug Abuse Commission v. FOIC, 233 Conn.28 (1995); Kurecza v. FOIC, 228 Conn. 271 (1994); First Selectman v. FOIC, 60 Conn. App. 64 (2000); Dept. of Children & Families v. FOIC, 48 Conn. App. 467 (1998); Almeida v. FOIC, 39 Conn. App. 154 (1995); Town of Enfield v. Freedom of Information Commission,  Super Ct JD NB CV 06 4012219 S (Cohn, J. 2007); Chairman, Board of Ethics, Town of Greenwich and Board of Ethics, Town of Greenwich v. Freedom of Information Commission and Michael Aurelia, Super Ct JD NB CV 05 400 7004 S (Owens, J. 2006); Dept. of Transportation v. FOIC, Super Ct JD NB CV 01-0508810 (Schuman, J. 2001); City Treasurer, City of Hartford v. FOIC, Super Ct JD NB CV 99 0496222 (Cohn, J. 2000); Rocque, Commissioner of Environmental Protection v. FOIC, Super Ct JD NB CV 98 0492734 (Hartmere, J. 1999); Director, Retirement & Benefits Services Div. v. FOIC, Super Ct JD NB CV 98 0492692 (Hartmere, J. 1999); First Selectman, Town of Ridgefield v. FOIC, Super Ct JD NB CV 99‑0493041 (McWeeny, J. 1999); Chairman, Bd. of Education Town of Darien v. FOIC, Super Ct JD Htfd NB CV 97 0575674 (McWeeny, J. 1998); Waters, Commissioner of State of Conn. Dept. of Administrative Services v. FOIC, Super Ct JD Htfd/NB CV 96 0565853 (McWeeny, J. 1997); Armstrong, Commissioner of State of Conn. Dept. Of Correction v. FOIC, Super Ct JD Htfd/NB CV 96 0563608 (McWeeny, J. 1997); Dept. of Children & Families v. FOIC, Super Ct JD Htfd NB CV 96 0562546 (McWeeny, J. 1997); State of Conn. Office of Protection and Advocacy for Persons with Disabilities v. FOIC, Super Ct JD Htfd/NB CV 95 0554467 (McWeeny, J. 1997); Youngquist v. FOIC, Super Ct JD Htfd/NB, CV 95 0554601 (McWeeny, J. 1996 and 1997); Cracco v. FOIC, Super Ct JD Htfd/NB, CV 94 0705371 (Dunnell, J. 1995); Cracco v. FOIC, Super Ct JD Htfd NB, CV 93 0705370, (Dunnell, J. 1995); Cracco v. FOIC, Super Ct JD Htfd NB, CV 94 0705369, (Dunnell, J. 1995); Simonds v. FOIC, Super Ct JD Htfd/NB, CV 93 070 41 39 (Maloney, J. 1994); Gallagher v. FOIC, Super Ct JD Htfd/NB, CV 93 0531514 (Maloney, J. 1994).

 

 

FOIC Decisions

 

Docket #FIC 2007-580; Town of Putnam and Putnam Board of Education v. Commissioner, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety (May 28, 2008); Docket #FIC 2007-447; Daniel Mathena v. Chief, Police Department, Town of Simsbury (April 23, 2008);

Docket #FIC 2007-560; Kenneth D. Goldberg v. Executive Director, Greater Hartford Transit District; and Greater Hartford Transit District (April 9, 2008); Docket #FIC 2007-513; Elizabeth Benton and the New Haven Register v. Chairman, Board of Commissioners, Housing Authority, Town of Derby (April 9, 2008); Docket #FIC 2007-317; James Baker v. Warden, State of Connecticut, Department of Correction, Osborn Correctional Institution (April 9, 2008); Docket #FIC 2007-221; Jon Lender and The Hartford Courant v. Executive Director, State of Connecticut, Office of State Ethics; General Counsel, State of Connecticut Office of State Ethics; Citizen’s Ethics Advisory Board, State of Connecticut, Office of State Ethics; and State of Connecticut, Office of State Ethics (March 26, 2008); Docket #FIC 2007-469; Lawrence C. Sherman v. Board of Education, West Hartford Public Schools (March 12, 2008); Docket #FIC 2007-315; Dawne Westbrook v. Commissioner, State of Connecticut, Department of Correction (January 23, 2008); Docket #FIC 2007-298; Josh Kovner and the Hartford Courant v. Chief, Police Department, City of Middletown (November 14, 2007); Docket #FIC 2007-416; Junta for Progressive Action, Inc.; Unidad Latina en Accion; and The Jerome N. Frank Legal Services Organization v. John A. Danaher III, Commissioner, State of Connecticut, Department of Public Safety (November 8, 2007); Docket #FIC 2006-502; David P. Taylor v. Commissioner, State of Connecticut, Department of Correction (September 12, 2007); Docket #FIC 2007-123; Jessica Crowley and Isabella O’Malley v. Commissioner, State of Connecticut, Department of Public Health (August 8, 2007);

Docket #FIC 2006-467; Charlie Santiago Zapata v. Commissioner, State of Connecticut, Department of Correction (August 8, 2007); Docket #FIC 2006-374; Burton Weinstein v. Commissioner, State of Connecticut, Department of Public Safety (July 11, 2007); Docket # 2006-343; Stephanie Reitz and the Associated Press v. Commissioner, State of Connecticut, Department of Correction (June 27, 2007); Docket #FIC 2006-098; Louis J. Russo v. Director, State of Connecticut, University of Connecticut Health Center, Office of Health Affairs Policy Planning; and Dr. Jacob Zamstein (February 28, 2007); Docket #FIC 2006-258; John Orr v. First Selectman, Town of Essex (January 24, 2007); Docket #FIC 2006-242; Ismael Hernandez III v. Director of Labor Relations, Labor Relations Office, City of Bridgeport (January 24, 2007); Docket #FIC 2006-292; Mary Ellen Fillo and The Hartford Courant v. Chief, Volunteer Fire Department, Town of Newington (January 10, 2007); Docket #FIC 2006-121; John Bolton v. Personnel Director, Civil Service Commission, City of Bridgeport; and Civil Service Commission, City of Bridgeport (December 13, 2006); Docket #FIC 2005-571; Alexander Wood and the Manchester Journal Inquirer v. Director, Human Resources Department, Town of Windsor (October 25, 2006); Docket #FIC 2005-535; Alexander Wood and The Manchester Journal-Inquirer v. Director of Human Resources, Town of Windsor (October 25, 2006); Docket #FIC 2005-511; Don Stacom and the Hartford Courant v. John Divenere, Chief, Police Department, City of Bristol (October 11, 2006); Docket #FIC 2005-508; Connecticut State Conference of NAACP Branches v. Chief, Police Department, City of Bristol (October 11, 2006); Docket #FIC 2005-478; Doreen Guarino and the Manchester Journal-Inquirer v. Chief, Police Department, Town of Enfield (September 13, 2006); Docket #FIC 2005-473; Alexander Wood, Heather Nann Collins, and the Manchester; Journal-Inquirer v. Executive Director, State of Connecticut, Board of Education; and Services for the Blind (September 13, 2006); Docket #FIC 2005-448; Susan Raff and WFSB TV v. Mayor, City of Middletown (September 13, 2006); Docket #FIC 2005-615; James E. Simpson v. Chief, Police Department, Town of Seymour (August 23, 2006); Docket #FIC 2005-436; Suzanne Risley and the Waterbury Republican-American v. Chief, Police Department, City of Torrington (August 23, 2006); Docket #FIC 2005-242; Michelle Tuccitto and The New Haven Register v. Chief, Police Department, City of New Haven (May 10, 2006); Docket #FIC 2005-096; Richard Fontana, Jr. v. Board of Fire Commissioners, West Shore Fire District (February 8, 2006); Docket #FIC 2005-058; Glenn C. Morron and William Hertler, Jr. v. J. Edward Brymer, Chief, Police Department, City of Middletown; Phillip Pessina, Deputy Chief, Police Department, City of Middletown; and Lyn Baldoni, Deputy Chief, Police Department, City of Middletown (January 25, 2006);  Docket #FIC 2005-081; Megan Bard and the New London Day v. Superintendent of Schools, Canterbury Public Schools; and Board of Education, Canterbury Public Schools (October 26, 2005); Docket #FIC 2004-289; Lisa A. Coleman v. Chief, Police Department, Town of New Milford (June 22, 2005); Docket #FIC 2004-408; Michael Aurelia v. Chairman, Board of Ethics, Town of Greenwich; and Board of Ethics, Town of Greenwich (May 11, 2005); Docket #FIC 2004-197; Maria McKeon v. Town Manager, Town of Hebron (March 23, 2005); Docket #FIC 2004-159; Jason L. McCoy v. Town Manager, Town of Rocky Hill (March 23, 2005); Docket #FIC 2004-119; Dawne Westbrook v. Chief, Police Department, Town of Rocky Hill; and Robert Catania (February 9, 2005); Docket #FIC 2004-092; Dan Levine v. Public Information Officer, Police Department, City of Hartford (February 9, 2005);

Docket #FIC 2004-005; Ralph W. Williams Jr. and The Manchester Journal Inquirer v. State Connecticut, Office of the Governor (Oct. 13, 2004); Docket #FIC 2003-456; Thomas O’Brien v. Chief, Police Department, Town of Waterford (Oct. 13, 2004); Docket #FIC 2003-454; Michael C. Bingham and Business New Haven v. Commissioner, State of Connecticut, Department of Banking (Sept. 22, 2004); Docket #FIC 2003-382; Michael J. McMullen v. Town Administrator, Town of Vernon (Sep. 22, 2004); Docket #FIC 2004-100; Jerry Romaniello and the Greenwich Firefighters Association v. First Selectman, Town of Greenwich (Sept. 8, 2004); Docket #FIC 2003-348; Alexander Wood and the Journal Inquirer, v. Town Manager, Town of South Windsor (Sep. 8, 2004); Docket #FIC 2003-386; Mathew L. Brown and the Willimantic Chronicle, v. President and Chief Executive Officer, Windham Mills Development Corp. (Aug. 11, 2004); Docket #FIC 2003-285; Frank C. Violissi, Jr. v. First Selectman, Town of Chester (May 26, 2004); Docket #FIC 2003-074; Heather M. Henderson v. State of Connecticut, Department of Public Safety, Legal Affairs Department (Dec. 10, 2003); Docket #FIC 2003-020; Hugh Curran v. Mayor, City of Waterbury (Sept. 10, 2003); Docket #FIC 2002-580; Ken Byron and The Hartford Courant v. First Selectman, Town of Westbrook (Sept. 10, 2003); Docket #FIC 2003-038 Chris Dehnel and The Journal Inquirer v.  First Selectman, Town of Ellington (Aug. 27, 2003); Docket #FIC 2002-531Chris Dehnel and Journal Inquirer First Selectman, Town of Ellington (Aug. 27, 2003); Docket #FIC 2003-055; Robert Mack v. Director, State of Connecticut, Department of Correction, Labor Relations (July 23, 2003); Docket #FIC 2002-345; Josh Kovner, Chris Keating, and The Hartford Courant v. Chief, Police Department, City of Middletown (July 23, 2003); Docket #FIC 2002-338; Amy L. Zitka and The Middletown Press v. Chief, Police Department, City of Middletown; and Professional Standards Unit Supervisor, Police Department, City of Middletown (July 23, 2003); Docket #FIC 2002-465; Fred Radford v. Chairman, Police Commission, Town of Trumbull; and Chief, Police Department, Town of Trumbull (July 9, 2003); Docket #FIC 2002-118; Kimberly W. Moy and the Hartford Courant v. Superintendent of Schools, Southington Public Schools (Feb. 26, 2003); Docket #FIC 2002-020; Maurice Timothy Reidy and The Hartford Courant v. Chief, Police Department, Town of Newington and Brendan Fitzgerald (Oct. 23, 2002); Docket #FIC 2001-489 Jonathan Kellogg, Trip Jennings and Waterbury Republican-American Chief, Police Department, Borough of Naugatuck and Rick Smolicz (Sept. 25, 2002); Docket #FIC 2002-173; Carrie J. Campion v. Director, Department of Human Resources, Town of Fairfield (Aug. 28, 2002); Docket #FIC 2001-425 Joseph Mincewicz, Commissioner, State of Connecticut, Department of Public Safety, Division of State Police; and State of Connecticut, Department of Public Safety, Division of State Police (Aug. 28, 2002); Docket #FIC 2001-421 Jean M. Morningstar and University Health Professionals Local 3837, AFT-CFEPE, AFL-CIO v. Executive Vice President for Health Affairs, State of Connecticut, University of Connecticut Health Center; and State of Connecticut, University of Connecticut Health Center; and Justin Radolf, M.D., Director, Center for Microbial Pathogenesis, School of Medicine, University of Connecticut Health Center (Aug. 28, 2002); Docket #FIC 2002-093 Sean P. Turpin v. Director, Department of Human Resources, Town of Greenwich and Steve Demetri (July 24, 2002); Docket #FIC 2002-034; MariAn Gail Brown, Michael P. Mayko and Connecticut Post Michael Lupkas, Comptroller, City of Bridgeport; Christopher Duby, Chief of Staff, City of Bridgeport; Mark Anastasi, City Attorney, City of Bridgeport; and Gregory Conte, Deputy Chief of Staff, City of Bridgeport (June 26, 2002); Docket #FIC 2001-364; Karen Guzman and The Hartford Courant v. City of New Britain Docket (June 26, 2002); Docket #FIC 2001-180 James H. Smith and The Record Journal Publishing Company v. Commissioner, State of Connecticut, Department of Public Safety, Division of State Police; and State of Connecticut, Department of Public Safety, Division of State Police (Feb. 13, 2002); Docket #FIC 2001-129; Kimberly W. Moy and The Hartford Courant v. Police Commission, Town of Southington (Feb. 13, 2002); Docket #FIC 2001-251 Fred Radford v. Chief, Police Department, Town of Trumbull (Jan. 23, 2002); Docket #FIC 2000-624; Eric Gustavson v. Board of Education, Brookfield Public Schools (June 13, 2001); Docket #FIC 2000-557; Wendy John v. Richard Blumenthal, Attorney General, State of Connecticut, Office of the Attorney General; Wil Gundling, William McCullough, Phillip Schulz, Margaret Chapple, Assistant Attorneys General, State of Connecticut, Office of the Attorney General; and State of Connecticut, Office of the Attorney General (June 13, 2001); Docket #FIC 2000-268; Michael Costanza and The Day v. Director of Utilities, Utilities Department, City of Groton; and Mayor, City of Groton (April 25, 2001); Docket #FIC 2000-198; William J. Stone v. Personnel Administrator, State of Connecticut, Department of Transportation, Bureau of Finance and Administration; and State of Connecticut, Department of Transportation (April 20, 2001); Docket #FIC 2000-537; James Leonard, Jr. v. Chief, Police Department, City of New Britain (March 28, 2001); Docket #FIC 2000-348; Bradshaw Smith v. Office of the Vice Chancellor for Information Services, State of Connecticut, University of Connecticut; and State of Connecticut, University of Connecticut (February 28, 2001); Docket #FIC 2000-474; Robert H. Boone and Journal Inquirer v. Chief, Police Department, Town of Windsor Locks (Jan. 24, 2001); Docket #FIC 2000-265; Lisa Goldberg and The Hartford Courant v. Superintendent of Schools, Vernon Public Schools (Jan. 24, 2001); Docket #FIC 2000-569; Mary Hyde v. Chief, Police Department, Town of Seymour (Dec. 13, 2000); Docket #FIC 2000-049; Nicholas B. Wynnick v. Board of Directors, Ansonia Public Library, Town of Ansonia (Dec. 13, 2000); Docket #FIC 2000-136; Thomas E. Lee v. Board of Education, Trumbull Public Schools; and Superintendent of Schools, Trumbull Public Schools (Nov. 29, 2000); Docket #FIC 2000-135; Thomas E. Lee v. Board of Education, Trumbull Public Schools; and Superintendent of Schools, Trumbull Public Schools (Nov. 29, 2000); Docket #FIC2000-086; Mitchell D. Poudrier v. Superintendent of Schools, Killingly Public Schools (Sept. 13, 2000); Docket #FIC 2000-173; Robert H. Boone and the Journal Inquirer v. Anthony Milano, District Manager, Metropolitan District Commission; and Metropolitan District Commission (Aug. 23, 2000); Docket #FIC 2000-094; James D. Goodwin v. Communications Specialist, State of Connecticut, Department of Social Services, Public and Government Relations Unit (Aug. 9, 2000); Docket #FIC 2000-022; Thedress Campbell v. City Treasurer, City of Hartford (Aug. 9, 2000); Docket #FIC 2000-137; Robert H. Boone and Journal Inquirer v. Metropolitan District Commission (July 12, 2000); Docket #FIC 1999-560; Leo F. Smith v. Robert H. Skinner, First Selectman, Town of Suffield; and Selectmen’s Office, Town of Suffield (July 12, 2000); Docket #FIC 1999-556; Delores Annicelli v. Director, New Haven Housing Authority, City of New Haven; and New Haven Housing Authority, City of New Haven (July 12, 2000); Docket #FIC 1999-548; Leo F. Smith v. John P. Lange, Human Resources Director, Town of Suffield; and Department of Human Resources, Town of Suffield (July 12, 2000); Docket #FIC 1999-547; Leo F. Smith v. John P. Lange, Human Resources Director, Town of Suffield; and Department of Human Resources, Town of Suffield (July 12, 2000); Docket #FIC 1999-525; Leo F. Smith v. John P. Lange, Human Resources Director, Town of Suffield; and Department of Human Resources, Town of Suffield (July 12, 2000); Docket #FIC 2000-118; Elizabeth Ganga and Connecticut Post v. Police Department, Town of Stratford (June 28, 2000); Docket #FIC 2000-095; Ron Robillard and the Chronicle v. Chairman, Board of Education, Eastford Public Schools; and Board of Education, Eastford Public Schools (June 28, 2000); Docket #FIC 2000-093; Megan J. Bard and The Norwich Bulletin v. Chairman, Board of Education, Eastford Public Schools; and Board of Education, Eastford Public Schools (June 28, 2000); Docket #FIC 1999-575; Bruce Kaz v. Robert Skinner, First Selectman, Town of Suffield; and Ted Flanders, Building Inspector, Town of Suffield (June 28, 2000); Docket #FIC 1999-519; Robert J. Fortier v. Personnel Director, Town of East Hartford; and Mayor, Town of East Hartford (June 14, 2000); Docket #FIC1999-550; James and Susanne Milewski v. Deputy Chief, Police Department, Town of Clinton; and Police Department, Town of Clinton (May 24, 2000); Docket #FIC 2000-005; Fred B. Feins v. President and Chief Executive Officer, Granby Ambulance Association, Inc., Town of Granby (May 10, 2000); Docket #FIC1999-606; Robert L. Corraro and IBEW Local 90 v. Town Attorney, Town of Hamden; and Electrical Contractors, Inc. (May 10, 2000); Docket #FIC 1999-533; Donald J. Lanouette, Jr. v. Chief, Police Department, Town of Madison; and Police Department, Town of Madison (April 26, 2000); Docket #FIC 1999-502; Christopher Hoffman and New Haven Register v. Director of Personnel, State of Connecticut, Southern Connecticut State University; and Personnel Office, State of Connecticut, Southern Connecticut State University (April 26, 2000); Docket #FIC1999-440; Anne Hamilton and The Hartford Courant James Martino, Chief, Police Department, Town of Avon; Peter A. Agnesi, Lieutenant, Police Department, Town of Avon; and Police Department, Town of Avon (March 8, 2000); Docket #FIC1999-333; Lynn Fredricksen and New Haven Register v. Chief, Police Department, Town of Madison; and Police Department, Town of Madison (March 8, 2000); Docket #FIC 1999-289; Thomas Moran v. Director, Human Resources, Town of Simsbury; and Department of Human Resources, Town of Simsbury (Feb. 9, 2000); Docket #FIC 1999-328; Victor Zigmund v. Director, State of Connecticut, Department of Mental Health and Addiction Services, Human Resources Operations, Connecticut Valley Hospital, Whiting Forensic Division (Jan. 26, 2000); Docket #FIC 1999-100; Janice D’Arcy and The Hartford Courant v. Chief, Police Department, Town of Cheshire; Police Department, Town of Cheshire; Town Manager, Town of Cheshire; and Town of Cheshire (Jan. 26, 2000); Docket #FIC 1999-355; Wayne Mercier v. Patricia C. Washington, Director of Personnel, City of Hartford; and Department of Personnel, City of Hartford (Nov. 10, 1999); Docket #FIC 1998-391; Jonathan F. Kellogg and The Republican American v. Department of Education, City of Waterbury (Oct. 13, 1999); Docket #FIC 1999-161; Michael W. Cahill v. Chief, Police Department, Town of Hamden; and Police Department, Town of Hamden (Sept. 22, 1999); Docket #FIC 1998-294; Robert J. Bourne v. Department of Public Utilities, City of Norwich, and City of Norwich (Sept. 22, 1999); Docket #FIC 1998-293; Joseph J. Cassidy v. Department of Public Utilities, City of Norwich, and City of Norwich (Sept. 22, 1999); Docket #FIC 1999-040; Judith F. Machuga and State of Connecticut, Division of Public Defender Services, Superior Court, G.A. 13 v. Chief, Police Department, Town of East Windsor; and Police Department, Town of East Windsor (Aug. 25, 1999); Docket #FIC 1999-144; Robert H. Boone and Journal Inquirer v. William Gifford, Chief, Police Department, Town of Windsor Locks; Police Department, Town of Windsor Locks; and Windsor Locks Police Commission (July 28, 1999); Docket #FIC 1999-096; Paul Marks and The Hartford Courant v. Chief, Police Department, Town of Windsor Locks; and Police Department, Town of Windsor Locks (July 28, 1999); Docket #FIC 1999-064; Joan Coe v. First Selectman, Town of Simsbury; Director, Human Resources Department, Town of Simsbury; and Town of Simsbury (July 28, 1999); Docket #FIC 1999-150; Andrew Nargi v. Office of Corporation Counsel, City of Torrington; and City of Torrington (July 14, 1999); Docket #FIC 1999-135; Warren Woodberry, Jr. and The Hartford Courant v. Acting Town Manager, Town of Rocky Hill and Town of Rocky Hill (July 14, 1999); Docket #FIC 1999-015; Richard Manuel Rivera v. Superintendent of Schools, Torrington Public Schools; and Board of Education, Torrington Public Schools (June 9, 1999); Docket #FIC 1998-372; William C. Kaempffer and New Haven Register v. Police Department, City of New Haven; City of New Haven; and James Sorrentino (June 9, 1999); Docket #FIC 1997-361; Docket #FIC 1999-019; David K. Jaffe v. State of Connecticut, Connecticut Lottery Corporation, Human Resources; State of Connecticut, Connecticut Lottery Corporation, Security Division; and State of Connecticut, Connecticut Lottery Corporation (April 28, 1999); Docket #FIC1998-325; Virginia Groark and The Day v. Freedom of Information Officer, State of Connecticut, Department of Public Health, Office of Special Services, Communications Division; and Agency Personnel Administrator, State of Connecticut, Department of Public Health, Human Resources Division (April 28, 1999); Docket #FIC 1998-208; Thedress Campbell v. City Treasurer, City of Hartford; and City of Hartford (April 14, 1999); Docket #FIC 1998-265; Benjamin M. Wenograd and Service Employees International Union Local 760 v. John Roughan, Executive Director, East Hartford Housing Authority; and East Hartford Housing Authority, Town of East Hartford (March 24, 1999); Docket #FIC 1997-361; Dominick L. Santarsiero v. Director, Human Resources, City of Stamford (June 10, 1998); Docket #FIC 1997-363; Diana R. Raczkowski v. Mayor, Town of Naugatuck (March 11, 1998); Docket #FIC 1997-307; Krystin Bratina v. Chief, Hartford Fire Department, City of Hartford (March 11, 1998); Docket #FIC 1998-288; Christian Miller and the New Haven Register v. Superintendent, Branford Public Schools; and Board of Education, Branford Public Schools (Feb. 24, 1999); Docket #FIC 1998-255; Joan O’Rourke v. Chief, Police Department, City of Torrington; and Police Department, City of Torrington (Jan. 27, 1999); Docket #FIC 1998-251; John Ward v. Beverly L. Durante, Personnel Administrator, Housatonic Area Regional Transit; and Housatonic Area Regional Transit (Jan. 27, 1999); Docket #FIC 1998-163; Lawrence A. Butts v. Director, State of Connecticut, Department of Environmental Protection, Human Resources Division; and State of Connecticut, Department of Environmental Protection, Human Resources Division (Dec. 9, 1998); Docket #FIC 1998-162; Lawrence A. Butts Chairperson, State of Connecticut, Department of Environmental Protection, Human Resources Division; and State of Connecticut, Department of Environmental Protection, Human Resources Division (Dec. 9, 1998); Docket #FIC 1998-232; Scott Clark, Amy Kertesz, Michael Gates and the Ridgefield Police Union v. First Selectman, Town of Ridgefield; and Town of Ridgefield (Nov. 18, 1998); Docket #FIC 1998-193; Daniel P. Jones and The Hartford Courant v. Commissioner, State of Connecticut, Department of Environmental Protection; and State of Connecticut, Department of Environmental Protection (Nov. 18, 1998); Docket #FIC 1998-121; Ernie Cantwell and International Association of Firefighters, Local No. 1073 v. Director, Personnel Department, City of Middletown and Personnel Department, City of Middletown (Oct. 14, 1998); Docket #FIC 1998-120; Ernie Cantwell and International Association of Firefighters, Local No. 1073 v. Director, Personnel Department, City of Middletown (Oct. 14, 1998); Docket #FIC 1998‑094; Janice D'Arcy and The Hartford Courant v. Chief, Meriden Police Department, City of Meriden and Meriden Police Department (Oct. 14, 1998); Docket #FIC 1997-422; Joseph A. Johnson, Jr. and Greenwich Time v. Chief, Greenwich Police Department, Town of Greenwich; and Greenwich Police Department, Town of Greenwich (Sept. 9, 1998); Docket #FIC 1998-023; Deborah Maynard v. Superintendent, Voluntown School District; and Principal, Voluntown Elementary School, Voluntown School District (Aug. 12, 1998); Docket #FIC 1997-298; Allan Drury and The New Haven Register v. Chief, East Haven Police Department, Town of East Haven; and Town of East Haven (June 10, 1998); Jonathan Lucas and Greenwich Times v. Director, Department of Human Resources, Town of Greenwich; and Town of Greenwich (May 27, 1998); John C. Rettman v. Meriden Police Department, Internal Affairs Division; and Paul Rowen (May 13, 1998); Docket #FIC 1997-318; Dennis Carnot v. Chief, Meriden Police Department, City of Meriden; Internal Affairs Division, Meriden Police Department, City of Meriden; Meriden Police Department, City of Meriden; and Paul Rowen (May 13, 1998); Docket #FIC 1997-175; Matthew Brown, Ken Byron and The Hartford Courant v. Superintendent of Schools, Plymouth Public Schools; and Board of Education, Town of Plymouth (February 18, 1998); Docket #FIC 1997-123; John Christoffersen and The Advocate v. Superintendent of Schools, Stamford Public Schools and Director of Personnel, Stamford Public Schools (Feb. 11, 1998); Docket #FIC 1997-088; John B. Harkins v. Acting Town Manager, Town of Tolland (Jan. 28, 1998); Docket #FIC 1997-085; Joe Johnson and Greenwich Time v. Chief of Police, Greenwich Police Department (Jan. 28, 1998); Docket #FIC 1997-142; Laura Amon v. Program Manager, Affirmative Action Division, State of Connecticut, Department of Transportation (Dec. 3, 1997); Docket #FIC 1996-572; Ken Byron and The Hartford Courant v. Chief of Police, Town of Wethersfield (Nov. 12, 1997); Docket #FIC 1997-238; Kimberley A. Thomsen and the Republican-American v. Acting Superintendent, Waterbury Police Department (Oct. 29, 1997); Docket #FIC 1997-089; Steven Edelman v. Commissioner, State of Connecticut, Department of Mental Retardation; and State of Connecticut, Department of Mental Retardation (Oct. 22, 1997); Docket #FIC 1996-551; Judith A. Amato v. Executive Director, New Britain Housing Authority; and New Britain Housing Authority (Aug. 27, 1997); Docket # FIC 1996-539; Ann Marie Derwin v. Legal Advisor, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety (Aug. 27, 1997); Docket #FIC 1996-592; Francine Karp v. Mayor, City of Bristol; Director of Personnel, City of Bristol; and Dennis Daigneault (July 23, 1997); Docket #FIC 1996-243; Joanne C. Tashjian v. Personnel Officer, State of Connecticut, Workers’ Compensation Commission; and State of Connecticut, Workers’ Compensation Commission (June 4, 1997); Docket #FIC 1996-322;Carolyn Moreau and The Hartford Courant v. Chief of Police, Southington Police Department; and Susan Williams (May 28, 1997); Docket #FIC 1996-465; John Gauger, Jr., Joseph Cadrain and Richard Westervelt v. Kenneth H. Kirschner, Commissioner, State of Connecticut, Department of Public Safety; Dawn Carnese, Legal Advisor, State of Connecticut, Department of Public Safety; and Lt. David Werner, Commanding Officer, Troop "B", State of Connecticut, Department of Public Safety, Division of State Police (April 9, 1997); Docket #FIC 1996-315; David W. Cummings v. Christopher Burnham, Treasurer, State of Connecticut (April 9, 1997); Docket #FIC 1996-521; Carol Butterworth v. Town Council, Town of Tolland (March 26, 1997); Docket #FIC 1996-421; John B. Harkins v. Chairman, Tolland Town Council (March 26, 1997); Docket #FIC 1996-314; David W. Cummings v. Christopher Burnham, Treasurer, State of Connecticut (April 9, 1997); Docket #FIC 1996-119; David W. Cummings v. Jesse M. Frankl, Chairman, State of Connecticut, Workers’ Compensation Commission (March 26, 1997); Docket #FIC 1996-215; Alice M. Gray v. Chief of Police, Manchester Police Department, and Assistant Town Attorney, Town of Manchester (Feb. 26, 1997); Docket #FIC 1996-159; Carolyn Moreau and The Hartford Courant v. Police Chief, Southington Police Department (Jan. 22, 1997); Docket #FIC 1996-124; Donald H. Schiller, Michael Kelley and The Record-Journal Publishing Company v. Police Chief, Town of Southington Police Department, and Town of Southington Police Department (Jan. 22, 1997); Docket #FIC 1996-134; Betty Halibozek v. Superintendent of Schools, Middletown Public Schools; and Supervisor of Maintenance and Transportation, Board of Education, City of Middletown (Dec. 11, 1996); Docket #FIC1996-006; Joseph Cadrain and Richard Westervelt v. Gerald Gore, Legal Affairs Unit, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety, Division of State Police (Dec. 11, 1996); Docket #FIC 1996-153; Tracey Thomas and The Hartford Courant v. Legal Affairs Unit, State of Connecticut, Department of Public Safety (Nov. 20, 1996); Docket #FIC1995-419; Robie Irizarry v. Warden, Willard Correctional Institution, State of Connecticut, Department of Correction (Oct. 23, 1996); Docket #FIC 1995-368; Thomas Lally v. Executive Director, State of Connecticut Board of Education and Services for the Blind, and Special Projects Coordinator, State of Connecticut, Board of Education and Services for the Blind (Oct. 9, 1996); Docket #FIC 1995-403; Jesse C. Leavenworth and The Hartford Courant v. Superintendent of Schools, Regional School District #7 (Sept. 25, 1996); Docket #FIC 1995-361; Christopher Hoffman and the New Haven Register v. James J. McGrath, Chief of Police, Ansonia Police Department and Eugene K. Baron, Brian Phipps, and Howard Tinney as members of the Ansonia Board of Police Commissioners (Sept. 25, 1996); Docket #FIC1995-358; Lyn Bixby and The Hartford Courant v. State of Connecticut, Department of Administrative Services (Sept. 25, 1996); Docket #FIC 1996-056; Francine Cimino v. Chief of Police, Glastonbury Police Department; Town Manager, Town of Glastonbury; and Town of Glastonbury (Sept. 25, 1996); Docket #FIC 1995-343; John J. Woodcock, III v. Town Manager, Town of South Windsor (July 24, 1996); Docket #FIC 1995-324; John J. Woodcock, III and Kathryn A. Hale v. Dana Whitman, Jr., Acting Town Manager, Town of South Windsor (July 24, 1996); Docket #FIC 95-251; Lyn Bixby & The Hartford Courant v. Commissioner, State of Connecticut, Department of Correction (July 10, 1996); Docket #FIC 1995-252; Valerie Finholm and The Hartford Courant v. Commissioner, State of Connecticut, Department of Children and Families (May 22, 1996); Docket #FIC 1995-193; Terence P. Sexton v. Chief of Police, Hartford Police Department (May 8, 1996); Docket #FIC 1995-125; Chris Powell and Journal Inquirer v. Commissioner, State of Connecticut, Department of Social Services (March 13, 1996); Docket #FIC 1995-081; Bruce Bellm, Kendres Lally, Philip Cater, Peter Hughes, Carol Northrop, Brad Pellissier, Todd Higgins and Bruce Garrison v. State of Connecticut, Office of Protection and Advocacy for Persons with Disabilities, Sharon Story and Marlene Fein (March 13, 1996); Docket #FIC 1995-074; Jeffrey C. Cole and WFSB/TV 3 v. James Strillacci, Chief of Police, West Hartford Police Department (Jan. 24, 1996); Docket #FIC 1995-026; Curtis R. Wood v. Director of Affirmative Action, State of Connecticut, Department of Correction (Jan. 24, 1996); Docket #FIC 1995-132; Michael A. Ingrassia v. Warden, Walker Special Management Unit, State of Connecticut Department of Correction (Dec. 27, 1995); Docket #FIC 1995-048; Jane Holfelder v. Canton Police Department (June 14, 1995); Docket #FIC 1994-351; Edward A. Peruta v. O. Paul Shew, Rocky Hill Town Manager and Director of Public Safety; Donald Unwin, Mayor of Rocky Hill, William Pacelia, Deputy Mayor of Rocky Hill; and Curt Roggi, Rocky Hill Town Attorney (May 28, 1995); Docket #FIC 1994-160; John Springer and The Bristol Press v. Chief of Police, Bristol Police Department (April 5, 1995); Docket #FIC 1994-077; Kathryn Kranhold and The Hartford Courant v. Director, New Haven Health Department (Feb. 8, 1995); Docket #FIC 1994-099; Frank Faraci, Jr. v. Middletown Police Department, Mayor of Middletown, and Middletown City Attorney (Feb. 2, 1995); Docket #FIC 1994-011; Robert Grabar, Edward Frede and The News-Times v. Superintendent of Schools, Brookfield Public Schools and Brookfield Board of Education (Aug. 24, 1994); Docket #FIC 1993-279; Jay Lewin v. New Milford Director of Finance (March 23, 1994).

 


2.  ENDNOTES

 

 

AFFIDAVIT OF ERIC V. TURNER

 

Eric V. Turner, having been duly sworn, does hereby depose as follows:

 

1.  I am over the age of eighteen (18) years and understand the obligation of an affirmation.

 

2.  I am a member of the Connecticut Bar and am currently employed as Director of Public Education for the Connecticut Freedom of Information Commission, having first been employed by said commission in 1996.

 

3.  I am providing this affidavit in light of the Supreme Court decision in Director, Retirement & Benefits Services Division v. Freedom of Information Commission, 256 Conn. 764 (2001), in which the court apparently invites a reconsideration of Perkins v. Freedom of Information Commission, 228 Conn. 158 (1993).  See, Director, supra at 782, fn 13, 785 (Zarella, J. concurring).

 

4.  As part of my responsibilities as Director of Public Education for said commission, I have developed, organized and scheduled speaking engagements, seminars and programs explaining the duties and rights established under the Connecticut Freedom of Information Act.

 

5.  Since I assumed my current position in 1996, there have been approximately 290 such speaking engagements, seminars and programs in Connecticut and I have personally lectured in approximately 80 such speaking engagements, seminars and programs.

 

6.  As part of the presentation I have prepared for such speaking engagements, seminars and programs, the subject of the Connecticut General Statues Section 1-210(b)(2) exemption for personnel, medical and similar files the disclosure of which would constitute an invasion of personal privacy is stressed because of the great interest in that exemption and the confusion generated by a series of inconsistent and contradictory court decisions prior to Perkins, supra.  See, e.g., Chairman v. Freedom of Information Commission, 217 Conn. 193 (1991) (establishing “reasonable expectation of privacy” test; query whether subjectively or objectively applied) and Board of Education v. Freedom of Information Commission, 210 Conn. 590 (1989) (confirming a “balancing” test), which was overruled by the Chairman case.

 

7.  Since the Supreme Court ruling in Perkins, supra, all Freedom of Information Commission staff members who conduct such speaking engagements, seminars and programs discuss in detail the rulings in that case and its progeny.

 

8.  As part of my responsibilities as Director of Public Education, I also answer telephone and other inquiries from public officials and the public.  Since my employment with said commission, I have answered thousands of such inquiries, including hundreds of inquiries concerning the Connecticut General Statutes Section 1-210(b)(2) exemption.  In responding to such inquiries I discuss in detail the Perkins case and its progeny.

 

9.  Based on the foregoing experiences, it is my opinion that the Perkins decision, and its progeny, have had a beneficial effect on public officials and the public itself because they can rely on a now long-standing and clear test with respect to the Connecticut General Statutes Section 1-210(b)(2) exemption, which helps them determine whether that exemption is applicable to the practical problems they encounter with respect to personnel, medical and similar information.  Indeed, the many court and Freedom of Information Commission decisions applying the Perkins test have given public officials and the public a now consistent body of law concerning that statutory exemption.

 

 

Eric V. Turner

 

 

 

COUNTY OF HARTFORD

                                                            ss:  Hartford

STATE OF CONNECTICUT

 

Subscribed and attested to before me this 9th day of January, 2002.

 

 

 

Mitchell W. Pearlman

Commissioner of the Superior Court

 

 

 



[1] Specifically, the Superior Court stated the following:  “The Court, in light of precedent, asks the FOIC to amend its final decision by reviewing the documents again and discussing whether it is a matter of legitimate public concern to release the verbatim transcripts in tabs D-J and the portion of tab A at page 6 and following.”  See Tompkins v. FOIC, et al., No. CV 08-4018826-S, at 8 (Conn. Super. Ct. July 13, 2009) (Memorandum of Decision); Town of Enfield, et al. v. FOIC, et al, No. CV 08-4018838-S, at 8 (Conn. Super. Ct. July 13, 2009) (Memorandum of Decision). 

[2] On May 18, 2009, in the course of the administrative appeal, the Commission filed an unopposed motion to remove references (or items) 8 through 11 from the Commission’s secure, in camera file and to add these records to the public file.   On May 19, 2009, the Court granted the Commission’s motion. 

 

[3] Because many of the sections in the loose-leaf binder contain pages that are not paginated in a consistent manner, the Commission will distinguish between the various pages in the following format, as needed:  first page 1, second page 1, third page 1, etc.