FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

James H. Smith and

the Bristol Press,

 
  Complainants  
  against   Docket #FIC 2010-306

Mayor, Town of Plymouth; and

Town of Plymouth,

 
  Respondents March 23, 2011
       

 

The above-captioned matter was heard as a contested case on August 31, 2010, at which time the complainants and respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

 

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 prior to May 2010, the complainants made several requests to the respondents for a copy of the personnel file of the Town of Plymouth’s Fire Marshal John Schubert, who had been suspended with pay.  It is also found that the respondents notified the Fire Marshal of such request and, receiving no objection to the disclosure of his personnel file, the respondents provided the complainants with a copy of the Fire Marshal’s personnel file, in its entirety. 

 

3.      It is found that the personnel file of the Fire Marshal did not include any records containing allegations of misconduct by the Fire Marshal, nor reasons for his suspension. 

 

4.      It is found that on May 10, 2010, the complainants made a verbal request to the respondents for copies of any records containing the reasons for the Fire Marshal’s suspension.  It is also found that the respondents denied such request stating that an investigation of alleged misconduct by the Fire Marshal was pending.

 

5.      By letter dated May 10, 2010, and filed on May 12, 2010, the complainants appealed to this Commission, alleging that the respondents violated the Freedom of Information ("FOI”) Act by failing to provide them with copies of the records, described in paragraph 4, above. 

 

6.      Section 1-200(5), G.S., defines "public records or files" as:

 

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.

 

7.      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....

 

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

 

9.      It is found that the records requested by the complainants are public records and must be disclosed in accordance with 1-200(5), 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.

 

10.  At the hearing in this matter, the respondents contended that the requested records are exempt from mandatory disclosure by virtue of 1-210(b)(2), G.S. 

 

11.  Section 1-210(b)(2), G.S., exempts in relevant part, the “[p]ersonnel or medical and similar files the disclosure of which would constitute an invasion of personal privacy.”

 

12.  It is found that records pertaining to an investigation of alleged misconduct are kept in a file separate from an employee’s personnel file while the investigation is pending.  Once the investigation is complete, the conclusions of the investigation will be placed in the employee’s personnel file.

 

13.  It is found that the investigation into the Fire Marshal’s alleged misconduct is still pending, and that records maintained by the respondents that are responsive to the complainants’ request described in paragraph 4, above, are in an investigation file separate from the Fire Marshal’s personnel file. 

 

14.   It is found that the records at issue are “similar” files within the meaning of 1-210(b)(2), G.S.

 

 

15.  Section 1-214, G.S., states, in relevant part:

 

(b)  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, 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….

(c)  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…. 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….

 

16.  At the hearing, the respondents testified that they had not previously notified the Fire Marshal of the complainants’ request described in paragraph 4, above, but that the Fire Marshal, through his counsel, was notified of, and offered an opportunity to appear at, the hearing.  Neither the Fire Marshal nor his counsel were present at the hearing and neither has expressed to the Commission nor the respondents an objection to the disclosure of the requested records described in paragraph 4, above, to the complainants.

 

17.  It is concluded that the respondents violated the disclosure provisions of 1-210(a) and 1-212(a), G.S., by not providing the complainants with copies of the records described in paragraph 4, above. 

 

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

 

1.       If they have not already done so, the respondents shall forthwith provide the complainants with copies of the records described in paragraph 4 of the findings, above. 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 23, 2011.

 

__________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

 

James H. Smith and the Bristol Press

188 Main Street

Bristol, CT  06010

 

Mayor, Town of Plymouth; and Town of Plymouth

c/o Salvatore V. Vitrano, Esq.

135 West Street

Bristol, CT  06010

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-306/FD/cac/3/28/2011