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Final Decision FIC2013-530
In the Matter of a Complaint by
FINAL DECISION
Nancy Rossi,
     Complainant
     against
Docket #FIC 2013-530
Commissioner, Department of Human
Resources, Town of West Haven; and
Department of Human Resources, Town of
West Haven, 
     Respondents
May 28, 2014

     The above-captioned matter was heard as a contested case on April 11, 2014, at which time the complainant and the 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 on August 8, 2013, the complainant requested to inspect the personnel file of Clifford Blackwood, except for medical information and social security numbers.
     3.  It is found that upon receipt of the complainant’s request, the respondents notified Mr. Blackwood of the request. 
     4.  It is found that on August 12, 2013, Mr. Blackwood stated in writing that he objected to disclosure of his personnel file.  It is found that the respondents then informed the complainant that, due to Mr. Blackwood’s objection, they were unable to disclose the records until ordered to do so by the Freedom of Information (“FOI”) Commission.
     5.  By letter filed September 5, 2013, the complainant appealed to this Commission, alleging that the respondents violated the FOI Act by failing to provide her with the records she requested. 
     6.  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, …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:
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.
     8.  It is concluded that the records requested by the complainant are public records within the meaning of §§1-200(5) and 1-210(a), G.S.
     9.  Section 1-210(b)(2), G.S., provides in relevant part that nothing in the FOI Act shall require the disclosure of  “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy. . . .”

     10. Section 1-214(b), G.S., provides in relevant part:
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.  (Emphasis added.)
     11. Section 1-214(c), G.S. provides in relevant part:
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 … within seven business days from the receipt by the employee …Each objection filed under this subsection shall be on a form prescribed by the public agency, which shall consist of a statement to be signed by the employee … under the penalties of false statement, that to the best of his knowledge, information and belief there is good ground to support it and that the objection is not interposed for delay.  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.
     12. It is found that, as described in paragraph 3, above, upon receipt of the complainant’s request, the respondents notified the employee, Mr. Blackwood, who lodged an objection to disclosure, and the respondents consequently refused to disclose the requested records, as required by §1-214(c), G.S.
     13. It is found that Mr. Blackwood’s written objection failed to conform to the requirements of §1-214(c), G.S., in that it was not signed under the penalties of false statement, that to the best of his knowledge, information and belief there is good ground to support it and that the objection is not interposed for delay.
     14. In addition, it is found that prior to notifying Mr. Blackwood of the complainant’s request, the respondents did not review the records to assess whether it was reasonable to believe that disclosure of such records would legally constitute an invasion of privacy. 
     15. It is therefore found that the respondents failed to prove that they had a reasonable belief that the disclosure of Mr. Blackwood’s personnel file would legally constitute an invasion of his privacy, as required by §1-214(b), G.S.
     16. It is concluded that the respondents violated §1-214(b), G.S., by failing to review the requested records, prior to notifying Mr. Blackwood, to determine whether it was reasonable to believe that disclosure would constitute an invasion of privacy failure to adhere to the procedure set forth in §1-214(b), G.S.
     17. It is found that the respondents no longer employ Mr. Blackwood.

     18. It is found that the respondents twice attempted to notify Mr. Blackwood by certified mail of the complainant’s appeal to the Commission, without success.  It is also found that Mr. Blackwood did not move to intervene in this matter.
     19. At the hearing in this matter, the respondents stated that they do not believe that disclosure of the personnel records would constitute an invasion of personal privacy within the meaning of §1-210(b)(2), G.S. 
     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

     1.  The respondents shall permit the complainant to inspect the personnel file of Clifford Blackwood, except for medical information and social security numbers.
     2.  Henceforth, the respondents shall strictly comply with the requirements of §§1-210(a), and 1-214(b), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of May 28, 2014.
__________________________
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:
Nancy Rossi
12 Robin Road
West Haven, CT  06516
Commissioner, Department of Human Resources, Town
of West Haven; and Department of Human Resources,
Town of West Haven
c/o Peter C. Barrett, Esq.
Office of the Corporation Counsel
355 Main Street
West Haven, CT  06516
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2013-530/FD/cac/5/28/2014