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Final Decision FIC2014-490
In the Matter of a Complaint by
FINAL DECISION
Ronald Morales,
     Complainant
     against
Docket #FIC 2014-490
Donald DeFronzo, Commissioner, State of
Connecticut, Department of Administrative
Services; and State of Connecticut,
Department of Administrative Services,
     Respondents
May 27, 2015

     The above-captioned matter was heard as a contested case on March 9, 2015, at which time the complainant and the respondents appeared 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.  By letter of complaint filed July 25, 2014, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act without reasonable grounds by denying him access to, and copies of, some of the documents relating to his and the successful applicant’s “recruitment files” for the position of Consumer Protection Inspector. The complainant requested the imposition of civil penalties.
     3.  It is found that, by letter dated June 30, 2014, the complainant asked to review “my recruitment file and the recruitment file of the individual hired for the position of Consumer Protection Inspector (Occupational Trades) from examination number 140130 [including] any and all information whether written/electronic in format that may not be contained in the file(s).
     4.  It is found that, by letter dated July 7, 2014, the respondents provided copies of the complainant’s own application package and an Affirmative Action Applicant Tracking Data Chart for the position.  The respondents redacted a small amount of information from the complainant’s application package, limited to his social security number and his phone numbers. From the Affirmative Action Applicant Tracking Data Chart, the respondents redacted all information pertaining to candidates other than the complainant and the successful applicant.  The respondents did not provide the application package of the successful applicant.
     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.  (Emphasis added).
     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, facsimile, electronic or certified copy of any public record.”
     8.  It is found that the requested employment applications are public records, within the meaning of §§1-200(5) and 1-210(a), G.S.
     9.  It is found that the respondents maintain completed applications for examination or employment (Form CT-HR-12), formerly known as the Form PLD-1, of individuals who applied for the Consumer Protection Inspector position.  The respondents maintain that these records, other than the records provided to the complainant, are exempt from disclosure pursuant to §5-225, G.S.
     10. Section 5-225, G.S., provides, in relevant part: 
[a]ll 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. Within thirty days of receipt of the final earned rating, a person may inspect his 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. Within thirty days of inspecting his papers, a person may, in writing, appeal to the Commissioner of Administrative Services the accuracy of his 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.
     11. The respondents maintain that the issue in this matter is controlled by Personnel Director, Department of Income Maintenance v. FOIC, 214 Conn. 312 (1990); 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.), and Fisi v Department of Health and Addiction Services, Docket #FIC 1994-055 (1995) (job applications for director’s position exempt from disclosure pursuant to §5-225, G.S.).  The Commission also takes administrative notice of its records and files in Winkler and Administrative and Residual Employees Union v. Commissioner, State of Connecticut, Department of Administrative Services, Docket #FIC 2005-492 (2006). 
     12. In Winkler, the complainant requested “examination applications or PLD-1s” and all attachments submitted…for the Fiscal Administrative Manager 1 examination…”  The Commission concluded such records were exempt from disclosure, under §5-225 G.S., as construed by the Supreme Court in Personnel Director, because the PLD-1 constitutes “recorded data used to determine promotions of state employees.”  See Personnel Director supra at 314.  According to the Court in Personnel Director, under §5-225, G.S., such information may be disclosed only to the applicant who is the subject of such application or examination.  Personnel Director, Id. at 316.
     13. It is found that the applications requested by the complainant are now known as Form CT-HR-12, which has superseded the older form PLD-1.
     14. It is concluded that the requested employment applications are exempt from mandatory disclosure pursuant to §5-225, G.S.
     15. The Commission notes that resumes and job applications of individuals maintained by public agencies other than state agencies have been held by the Commission to be subject to disclosure to the public, but that §5-225, G.S., dictates a different conclusion for the job applications for state employment.
     16.  The complainant argues that no actual “examination,” as that word is commonly understood, was administered for the position. That is, the applicants did not sit down in a room together and take a test.  However, the Commission has consistently deferred to the respondents’ definition of “examination” to include the application package itself, even in the absence of a traditional test.
     17.  Based upon the foregoing, it is concluded that the respondents did not violate the FOI Act as alleged in the complaint, and that consequently there is no reason to consider the imposition of civil penalties.
     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 May 27, 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:
Ronald Morales
6 Lincoln Avenue
Branford, CT  06405
Donald DeFronzo, Commissioner, State of
Connecticut, Department of Administrative
Services; and State of Connecticut,
Department of Administrative Services
c/o Jeffrey R. Beckham, Esq.
165 Capitol Avenue, Room 407
Hartford, CT  06106

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2014-490/FD/cac/5/27/2015