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Final Decision FIC2014-389
In the Matter of a Complaint by
FINAL DECISION
Nsonsa Kisala,
     Complainant
     against
Docket #FIC 2014-389
Commissioner, State of Connecticut,
Department of Public Health; William Gerrish,
Director of Communications, State of Connecticut,
Department of Public Health; and State of
Connecticut, Department of Public Health,
     Respondents
March 11, 2015

     The above-captioned matter was consolidated for hearing with Docket #FIC 2014-330; also captioned Nsonsa Kisala v. Commissioner, State of Connecticut, Department of Public Health; William Gerrish, Director of Communications, State of Connecticut, Department of Public Health; and State of Connecticut, Department of Public Health. Both matters were heard as contested cases on December 2, 2014, at which time the complainant and the respondents herein 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 by email dated June 2, 2014, the complainant made a request to the respondents for certain copies of “the personnel files” [bold face and underscoring deleted] of three named employees, including their “Application[s] for Employment”, their “State of Connecticut employment history” and their “College education” including the “name and complete address of each College…dates of attendance…type of degree [and] major course of study….”
     3.  It is found that, by email dated June 5, 2014, the respondents acknowledged the complainant’s request. 
     4.  By notice of appeal dated and filed June 19, 2014, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information   Act by denying his request for the records.
     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 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 . . . (3) receive a copy of such records in accordance with section 1-212.
     7.  Section 1-212(a)(1), G.S., provides in relevant part that:
Any person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record. The type of copy provided shall be within the discretion of the public agency, except (1) the agency shall provide a certified copy whenever requested, and (2) if the applicant does not have access to a computer or facsimile machine, the public agency shall not send the applicant an electronic or facsimile copy.
     8.  It is found that the requested records are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
     9.  It is found that on September 9, 2014, the respondents provided the complainant with some requested records, specifically tuition reimbursement records relating to one of the named employees. Immediately prior to the hearing, the respondents also provided the complainant with twenty-one pages of records from the three relevant personnel files. These twenty-one pages constituted notifications of various personnel actions. Except for these twenty-one pages and the tuition reimbursement records, the records described at paragraph 2, above, are sometimes hereinafter the “requested records.”
  
     10. At the contested case hearing, the respondents claimed that the requested records were exempt from mandatory disclosure pursuant to §5-225, G.S., which provides:
All persons competing in any examination shall be given written notice of their final earned ratings and the minimum earned rating necessary to pass the examination. Not later than thirty days after the issuance of the final earned rating, a person who has not achieved a passing rating may inspect his or her papers, markings, background profiles and other items used in determining the final earned ratings, other than examination questions and other materials constituting the examination, subject to such regulations as may be issued by the Commissioner of Administrative Services. Not later than ten days after inspecting his or her papers, a person may, in writing, appeal to the Commissioner of Administrative Services the accuracy of his or her final earned rating, as based on the original examination paper or responses. The commissioner shall render a final decision on the person's appeal within thirty days thereafter and correct candidate lists as appropriate.  (emphasis added)
     11. Moreover, §5-237, G.S., provides, in relevant part, that:
[a]ny employee in the classified service shall have the right, at reasonable times during office hours, to inspect his service rating, as shown by the records of the Department of Administrative Service or the department, agency or institution in which such employee is employed. . . .” (emphasis added)
     12. Also at the hearing, the complainant presented evidence that the same form (PLD-1) was used as an examination application and as an employment application, arguing that it was an examination application when filed with the Department of Administrative Services and an employment application when filed with the employing agency. He further testified that when he was initially hired by the respondent Department as a Health Program Assistant 1, he filed separate applications on the same form with the Department of Administrative Services and then again with the respondent Department. The complainant’s post hearing brief cited §1-214(a), G.S., which deems all employment contracts of the state to be public records.
     13. In response, the respondents presented testimony at the hearing that the key to determining whether a completed PLD-1 form is an application for examination or employment is whether the position at issue is competitive or non-competitive. Because non-competitive positions do not require examinations, the completed PLD-1 forms for such positions are employment applications. In cases of applications for examination for competitive positions, the applications are sometimes required to be filed with the Department of Administrative Services and sometimes required to be filed with the employing agency. Promotional examination applications are often required to be filed with the employing agency. Finally, the examination may consist of an examination of professional credentials, experience and evaluations, rather than a traditional written or oral examination that involves responding to questions or a hypothetical set of facts.
     14. At the hearing, the respondents also submitted the requested records to the Commission for an in camera inspection (sometimes the “in camera records”).  The in camera records consist of fifty one pages of records, which shall be identified as IC-2014-389-01 through IC-2014-389-51. 
     15. Finally, at the contested case hearing, the respondents stated that they did not believe that the disclosure of the requested records would legally constitute an invasion of privacy and therefore did not give notice to the three named employees pursuant to §1-214(b), G.S. Nor did any of the three named employees object to disclosure pursuant to §1-214(c), G.S.
     16. In Personnel Director, Department of Income Maintenance v. FOIC, 214 Conn. 312 (1990) (“Personnel Director”), the Supreme Court found that “the disclosure and inspection referred to under §5-225 applies only to the candidate who has taken the examination.”  Id. at 320.  Based on this finding, the Supreme Court held that §5-225, G.S., provided an exemption from mandatory disclosure with reference to persons other than a person seeing their own examination papers:
In conclusion, [§1-210(a)] provides that all records kept on file by public agencies shall be public records ‘[e]xcept as provided by any federal law or state statute.’  We hold that §§5-225 and 5-237 provide such an exception for the requested personnel files, which contained the promotional examination records of candidates for program supervisor other than the candidate’s own records. (emphasis added)
Id. at 321.
     17. Moreover, in 2013, the General Assembly further narrowed §5-225, G.S., in order to allow only those individuals who fail an examination the right to review their examination materials. See detailed discussion of Public Act 13-247, including the General Assembly’s bill summary, in Docket #FIC 2013-663; Mark Dumas and The Connecticut State Police Union v. Donald DeFronzo, Commissioner, State of Connecticut, Department of Administrative Services; and State of Connecticut, Department of Administrative Services.
     18. The Commission has, on numerous occasions over nearly twenty years, previously specifically held that the completed PLD-1 forms and attachments are exempt from disclosure pursuant to §5-225, G.S., and Personnel Director. Docket #FIC 1994-055; Fisi v Department of Health and Addiction Services (applications for director’s position exempt from disclosure pursuant to §5-225, G.S.); Docket #FIC 2005-492; Michael Winkler and the Administrative and Residual Employees Union Local 4200 v. Commissioner, State of Connecticut, Department of Administrative Services, (“Winkler”) (PLD-1 used to determine promotions and therefore exempt); Docket #FIC 2012-203; Miller v. Department of Labor, Docket #FIC 2012-203 (2013) (applications of individuals who applied for positions with Department of Labor exempt from disclosure pursuant to §5-225, G.S.);  Docket #FIC 2013-129; Adam Osmond v. Commissioner, State of Connecticut, Department of Administrative Services; and State of Connecticut, Department of Administrative Services (application of person selected for Fiscal Administrative Officer, now known as Form CT-HR-12, which superseded PLD-1, exempt from disclosure).
     19. It is found that the hiring and all the promotions of the three named employees at the respondent Department of Public Health were for competitive positions that required examination supervised by the Department of Administrative Services. All of the applications were therefore applications for examination.
     20. Thomas Malecky, Human Resources Manager at the respondent Department testified, and it is found, that the personnel files of the three named employees did not include any other responsive records than the in camera records and the records disclosed as set forth at paragraph 9, above. Mr. Malecky further testified that he personally performed the relevant searches for records.  
     21. Based on the in camera inspection, it is found that IC-2014-389-01 through IC-2014-389-51 are all records used to determine the final examination rating. Additionally, IC-2014-389-30 is a service rating. Just as in the Commission’s 2006 decision in Winkler, Personnel Director is on point in that it involved merit examinations similar to the ones at issue herein. 
     22. It is therefore concluded that the requested records are exempt from mandatory disclosure pursuant to §§5-225 and 5-237, G.S., and that the respondents did not violate §§1-210(a) and 1-212(a), G.S., by withholding such records from the complainant.
     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
     1.  The complaint is dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of March 11, 2015.

_________________________
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:
Nsonsa Kisala
170-04 Rosewood Avenue
Waterbury, CT  06706
Commissioner, State of Connecticut, Department of Public
Health; William Gerrish, Director of Communications,
State of Connecticut, Department of Public Health; and
State of Connecticut, Department of Public Health
c/o Kerry A. Colson, Esq.
Assistant Attorney General
State of Connecticut,
Office of the Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT  06141
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2014-389/FD/cac/3/11/2015