FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION

Mike Tuthill and Connecticut Correction

Employees, AFSCME Local 1565,

 
  Complainants  
  against   Docket #FIC 2010-097

Mildred Hazley, Human Resource Manager,

State of Connecticut, Department of Correction;

Joan Ellis, Freedom of Information Liaison, State

of Connecticut, Department of Correction; and

State of Connecticut, Department of Correction,

 
  Respondents February 9, 2011
       

 

The above-captioned matter was heard as a contested case on July 7, 2010, at which time the complainants and the respondents appeared and presented testimony, exhibits and argument on the complaint.  On November 1, 2010, the hearing officer issued a Notice of Reopened Hearing to the parties, and a subpoena to the Department of Information Technology (DOIT), to obtain additional evidence regarding what constitutes “programming and formatting functions,” under 1-212(b)(1), G.S.  Such reopened hearing was held on November 22, 2010, at which time the complainants and respondents appeared and presented testimony and exhibits related to the foregoing.

 

After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

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

 

2.  It is found that, by letter dated January 10, 2010, the complainants sent a request to the respondents for copies of:

 

a.  Deputy Warden Torres’ performance evaluations from her time in the Department of Correction;

b.  any Administrative transfers Deputy Warden Torres received;

c.  Lt. Colvin’s emails from 1/1/09 – 6/10/09;

d.  Lt. Colvin’s performance evaluations for his time in the Department;

e.  Lt. Walsh’s performance evaluations from her time at Hartford CC;

f.  any 2.22, 2.17, or 2.2 investigation she was the subject;

g.  Lt. Leva’s emails (incoming or outgoing) from 11/1/09 – 1/1/10;

h.  any 2.22, 2.17, or 2.22 investigation he was the subject of.

 

3.  It is found that, by letter dated January 24, 2010, the complainants sent a request to the respondents for copies of:

 

a.  any affirmative action investigations on Lt. Walsh that have been completed;

b.  a copy of Lt. Walsh’s performance evaluations for the last five years;

c.  any security division investigations Lt. Walsh were the subject of (2.17, 2.22);

d.  the minutes of the last commissioner’s labor management    meeting;

e.  all recommended discipline for William Surfus and Brett Owen, from Warden Sieminski, District Administrator Lajor, and Deputy Warden Torres as well as any administration personnel that reviewed the investigation that led to them receiving suspensions;

f.  any orders or directives given to allow the gym at Corrigan to be used for a housing unit;

g.  all of Warden Sieminski’s emails (sent and received) from 4/1/09 to 7/1/09;

h.  all of Lt. Lava’s emails (sent and received) from 7/1/09 to 12/28/09;

i.  any affirmative action investigations that he was the subject of;

j.  any security division investigations that Leva was the subject of  (2.17, 2.22).

 

            4.  By letter of complaint, dated February 7, 2010 and received February 16, 2010, the complainants appealed to this Commission, alleging that the respondents violated the Freedom of Information (FOI) Act by failing to comply with the requests for records described in paragraphs 2 and 3, above.  In their complaint, the complainants requested that a civil penalty be assessed against the respondents.

 

5.  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.

 

6.  Section 1-210(a), G.S., 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 (1) inspect such records promptly during regular office or business hours . . . (3) receive a copy of such records in accordance with section 1-212.

 

            7.   Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

8.  It is found that the records described in paragraphs 2 and 3, above, are public records within the meaning of 1-200(5), G.S., and therefore must be disclosed in accordance with 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 

 

9.  With regard to the request described in paragraph 2, above, it is found that, as of the first hearing in this matter, all records responsive to such request had been provided to the complainants, except the records described in paragraph 2.d., above.  With regard to the remainder of the requested records described in paragraph 2, above, however, the complainants assert that such records were not provided to him promptly.

10.  With regard to the issue of promptness, the Commission has held that the meaning of the word “promptly” is a particularly fact-based question.  In Advisory Opinion #51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982), the Commission advised that the word “promptly,” as used in 1-210(a), G.S., means quickly and without undue delay, taking into consideration all of the factors presented by a particular request.  The Commission also gave the following guidance:

 

The Commission believes that timely access to public records by persons seeking them is a fundamental right conferred by the Freedom of Information Act.  Providing such access is therefore as much a part of their mission as their other major functions.  Although each agency must determine its own set of priorities in dealing with its responsibilities within its limited resources, providing access to public records should be considered as one such priority.  Thus, it should take precedence over routine work that has no immediate or pressing deadline.

 

11.  It is found that the respondents promptly provided records responsive to the requests described in paragraphs 2.b, 2.c, 2.g and 2.h (partial compliance), above, to the complainant. 

 

12.  It is found that, with regard to the request described in paragraph 2.a, above, it is found that, prior to making such requests, the complainants had previously requested the same records from the respondents five times—on June 20, July 6, July 21, July 26, and July 29, 2009—and that all five requests were either ignored or were bounced back and forth between the human resources department and the freedom of information office, with neither office taking responsibility for addressing and fulfilling the request, until the January 10, 2010 request, described in paragraph 2.a was received.  

 

13.  With regard to the request described in paragraph 2.a, above, 1-210(b)(2), G.S., provides that nothing in the FOI Act shall be construed to require disclosure of …  “[p]ersonnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy…” 

 

14.  Section 1-214(b), G.S., provides, in relevant part:

 

[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 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 (emphasis added).

 

15.  It is found that, by letter dated January 22, 2010, the respondents notified Ms. Torres that the complainants had requested records contained in her personnel file (the “January 22 letter”).  However, it is further found that the respondents offered no evidence at the hearing in this matter that any person, on behalf of the respondents, upon receipt of the complainants’ request, reviewed the requested records and, based upon such review, reasonably believed that disclosure of such records would legally constitute an invasion of privacy, prior to notifying Ms. Torres of such request.  It is therefore found that the respondents failed to prove that they had a reasonable belief that the disclosure of the records, described in paragraph 2.a., above, would legally constitute an invasion of Ms. Torres’s privacy, as required by 1-214(b), G.S.

 

16.  Based upon the foregoing, it is concluded that the respondents violated 1-214(b), G.S., with regard to the request described in paragraph 2.a, above.

 

17.  It is also found that, upon notification of the request, described in paragraph 2.a, above, Ms. Torres objected to disclosure of the requested records; however, approximately one week prior to the first hearing in this matter, Ms. Torres withdrew her objection, and such records were provided to the complainants on the date of the first hearing.   It is therefore found that the respondents failed to provide such records to the complainants promptly and that such failure was caused by both the respondents’ lack of immediate response to the first five requests for such records, described in paragraph 12, above, and the violation of 1-214(b), G.S., described in paragraph 15, above.

 

18.  Accordingly, it is concluded that the respondents violated the promptness provisions in 1-210(a) and 1-212(a), G.S., with regard to the request described in paragraph 2.a, above.

 

19.  With regard to the request described in paragraph 2.e, above, it is found that, by letter dated January 21, 2010, the respondents notified Ms. Walsh that the complainants had requested records contained in her personnel file (the “January 21 letter”).  However, it is further found that the respondents offered no evidence at the hearing in this matter that any person, on behalf of the respondents, upon receipt of the complainants’ request, reviewed the requested records and, based upon such review, reasonably believed that disclosure of such records would legally constitute an invasion of privacy, prior to notifying Ms. Walsh of such request.  It is therefore found that the respondents failed to prove that they had a reasonable belief that the disclosure of the records, described in paragraph 2.e., above, would legally constitute an invasion of Ms. Walsh’s privacy, as required by 1-214(b), G.S.

 

20.  Based upon the foregoing, it is concluded that the respondents violated 1-214(b), G.S., with regard to the request described in paragraph 2.e., above.

 

21.  It is also found that, upon notification of the request, described in paragraph 2.e, above, Ms. Walsh indicated she did not object to disclosure of the requested records, and that such records were provided to the complainants on March 18, 2010.   It is found that the respondents failed to provide such records to the complainants promptly because of the violation of 1-214(b), G.S., described in paragraph 19, above.

 

22.  Accordingly, it is concluded that the respondents violated the promptness provisions of 1-210(a) and 1-212(a), G.S., with regard to the request described in paragraph 2.e, above.

 

23.  With regard to the request described in paragraphs 2f. and 2.h (partial compliance), above, it is found that the respondents withheld such records from the complainants “due to pending investigation[s].”  At the hearing in this matter, the respondents offered no evidence, nor citation to any provision in the FOI Act or to any other state or federal law that would apply to exempt such records from disclosure on the basis of a “pending investigation.” Accordingly, it is found that the respondents failed to promptly provide such records to the complainants.    

 

24.  Based upon the foregoing, it is concluded that the respondents violated the promptness provisions of 1-210(a) and 1-212(a), G.S., with regard to the requests described in paragraphs 2.f and 2.h, above.

 

25.  With regard to the request described in paragraph 2.d, above, it is found that, by letter dated January 21, 2010, the respondents notified Mr. Colvin that the complainants had requested records contained in his personnel file (the “January 21 letter”).  However, it is further found that the respondents offered no evidence at the hearing in this matter that any person, on behalf of the respondents, upon receipt of the complainants’ request, reviewed the requested records and, based upon such review, reasonably believed that disclosure of such records would legally constitute an invasion of privacy, prior to notifying Mr. Colvin of such request.  It is therefore found that the respondents failed to prove that they had a reasonable belief that the disclosure of the records, described in paragraph 2.d, above, would legally constitute an invasion of Mr. Colvin’s privacy, as required by 1-214(b), G.S.

 

26.  Based upon the foregoing, it is concluded that the respondents violated 1-214(b), G.S., with regard to the request described in paragraph 2.d, above.

 

27.  It is also found that, upon notification of the request, described in paragraph 2.d, above, Mr. Colvin objected to disclosure of the requested records.  At the hearing in this matter, Mr. Colvin appeared and did not request permission to intervene in the matter, but rather asked to read a written statement.  Such request was granted by the hearing officer.

 

28.  Mr. Colvin testified that he was familiar with the invasion of privacy standard, as that standard has been articulated by the Supreme Court.  Mr. Colvin further stated that he understood that, under such standard, disclosure of the requested records contained in his personnel file would not legally constitute an invasion of his privacy.  Rather, Mr. Colvin testified that he is the supervisor of one of the complainants, and that he believes that the complainants requested his performance evaluations solely for the purpose of harassing him.  He argued that the law should not permit the personnel records of supervisors to be disclosed to individuals whom they supervise, unless they have a legitimate reason for doing so, and requested that the Commission rule accordingly.

 

29.  The Commission declines Mr. Colvin’s invitation to depart from the well- settled law in this area.  It is found that, based upon the foregoing, the records described in paragraph 2.d, are not exempt from disclosure pursuant to 1-210(b)(2), G.S.

 

30.  Accordingly, it is concluded that the respondents violated 1-212(a) and 1-210(a), G.S., with regard to the request described in paragraph 2.d, above.   

 

31.  With regard to the January 24 request, described in paragraph 3, above, it is found that the respondents maintain no records responsive to the particular requests described in paragraphs 3.a, 3.c, 3.f, 3.i, 3.j.  It is therefore concluded that the respondents did not violate the FOI Act, as alleged, with regard to such requests.

 

32.  With regard to the request for emails, described in paragraph 3.h, above, it is found that such request was initially made by the complainants on November 1, 2009.  It is further found that, although the respondents provided the responsive records, over a period of months, to the complainants, it is found that such response was not prompt, in view of the fact that the complainants found it necessary to request such emails again in January, 2010.

 

33.  Accordingly, it is concluded that the respondents violated the promptness provisions of 1-210(a) and 1-212(a), G.S., with regard to the request described in paragraph 3.h, above.

 

34.  With regard to the request described in paragraph 3.b, it is found that such request is identical to the request described in paragraph 2.e, above, and that the findings of fact and conclusions of law in paragraphs 19, 20, 21, and 22, above, apply to the request in paragraph 3.b.

 

35.  With regard to the requests for records, described in paragraphs 3.d and 3.e, above, it is found that the respondents failed to provide the complainants with copies of such records until the day of the hearing in this matter, and offered no reasonable explanation for such delay.  It is therefore found that the respondents failed to respond to the requests, described in paragraph 3.d and 3.e, above, promptly.

 

36.  Accordingly, it is concluded that the respondents violated the promptness provisions of 1-210(a) and 1-212(a), G.S., with regard to the requests described in paragraph 3.d and 3.e, above.

 

37.  With regard to the request for emails described in paragraph 3.g, above, it is found that the complainants first requested such emails on July 29, 2009, again on November 11, 2009, and finally on January 24, 2010.  It is found that the respondents did not begin to address the request, described in paragraph 3.g., above, until sometime after March 5, 2010. 

 

38.  It is found that the respondents informed the complainants, first, that the emails, described in paragraph 37, above, did not exist, then later informed them that such emails existed, but that they had been deleted from the server and encrypted.  It is further found that the respondents  informed the complainants that they could retrieve and restore such emails for them, but that it would cost them $285.00 for “programming and formatting.”  The complainants contend that such charge is excessive, and that the emails were deleted in violation of the state records retention laws.  As of the first hearing in this matter, the complainants had paid the fee to the respondents and had begun to review  some, but not all, of the requested emails that had been restored.

 

 39.  At the second hearing in this matter, the respondents offered a letter, dated November 18, 2010, from respondents’ counsel, addressed to the complainants, in which counsel acknowledged Advisory Opinion 2009-2, issued by the Public Records Administrator, regarding the retention of electronic messages and the use of backup systems for such messages.  In the November 18 letter, counsel stated, that based upon her “discovery” of such advisory opinion, the respondents have decided not to charge for formatting and programming for any email restoration within two years of the request date, and, accordingly, that they will reimburse the complainants the $285.00 fee they paid for such programming and formatting in connection with this matter.

 

40.  Based upon the foregoing, it is found that, with respect to the complainants’ claim that the $285.00 charge for “programming and formatting” was excessive, such claim is moot.

 

41.  With regard to the complainants’ claim that the respondents violated the state records retentions laws, it is found that the Commission lacks jurisdiction over such claim.

 

With regard to the complainants’ request for civil penalties against the respondents, the Commission declines to consider the imposition of civil penalties in this case.

 

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

 

            1.  The respondents shall, henceforth, strictly comply with the promptness provisions of 1-212(a) and 1-210(a), G.S.  

 

            2.  The respondents shall, henceforth, strictly comply with the requirements of 1-214(b), G.S.

 

            3.  Forthwith, the respondents shall provide the complainants with a complete, unredacted copy of the records described in paragraph 2.d., above, free of charge.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 9, 2011.

 

 

__________________________

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:

 

Mike Tuthill and Connecticut Correction

Employees, AFSCME Local 1565

124 Court Street, Suite 100

Middletown, CT 06457

 

Mildred Hazley, Human Resource Manager,

State of Connecticut, Department of Correction;

Joan Ellis, Freedom of Information Liaison, State

of Connecticut, Department of Correction; and

State of Connecticut, Department of Correction

c/o Sandra A. Sharr, Esq. and

Nancy B. Canney, Esq.

Department of Correction

24 Wolcott Hill Road

Wethersfield, CT 06109

 

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-097/FD/paj/2/10/2011