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Final Decision FIC2015-414
In the Matter of a Complaint by
FINAL DECISION
Alexander Wood, Kyle Penn, Gail
Montany and the Manchester Journal
Inquirer,
     Complainants
     against
Docket #FIC 2015-414
Vanessa Perry, Director of Human
Resources, Town of South Windsor; and
Town of South Windsor,
     Respondents
January 27, 2016

     The above-captioned matter was heard as a contested case on September 30, 2015, at which time the complainants 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 June 2, 2015, the complainants requested a copy of “all records related to disciplinary action” involving the respondents’ employees during May 2015.  It is found that on June 16, 2015, the complainants requested a copy of “all records related to disciplinary action” for April 2015. 
     3. It is found that on June 15, 2015, the respondents acknowledged receipt of the complainants’ requests, and informed the complainants that they maintained responsive records, but “the affected employees object to their disclosure on the grounds of invasion of personal privacy.”
     4. By letter filed June 18, 2015, the complainants appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide copies of the records they requested. 
     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, …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:
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, … or (3) receive a copy of such records in accordance with section 1-212.
     7. Section 1-212(a), G.S., provides in relevant part:  “Any 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 all the records requested by the complainants are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
     9. Section 1-210(b)(2), G.S., provides:  “Nothing in the Freedom of Information 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.”
     10.  In Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993) (“Perkins”), the Supreme Court set forth the test for an invasion of personal privacy, necessary to establish the exemption at §1-210(b)(2), G.S.  The claimant must first establish that the records in question are personnel, medical or similar files.  Second, the claimant must show that disclosure of the records would constitute an invasion of personal privacy.  In determining whether disclosure would constitute an invasion of personal privacy, the claimant must establish both of two elements:  first, that the information sought does not pertain to legitimate matters of public concern, and second, that disclosure of such information is highly offensive to a reasonable person. 
     11.  Following the hearing in this matter, the respondents submitted the requested records for in camera inspection.  Such records shall be referred to as IC-2015-414-1 through IC-2015-414-22.1

1
The hearing officer attached page numbers because the respondents submitted the records in camera without them.
     12.  Upon careful review of the in camera records, it is found that such records are personnel files, within the meaning of §1-210(b)(2), G.S.
     13.  Personnel records of public employees, such as the disciplinary records requested in this matter, “are presumptively legitimate matters of public concern.”  Perkins, supra, 228 Conn. 168.
     
     14.  The respondents testified at the hearing in this matter that the records concern two unrelated incidents:  one, in which an employee in anger tried to affix a sticky note to his supervisor when the employee was not allowed to attend the funeral of a colleague in another town; the other, in which an employee was disciplined for having a subordinate perform a task that was inconsistent with the subordinate’s light duty status.  
     15.  The respondents claimed that certain information in the in camera records is exempt as “confidential medical information.”
     16.  It is found that IC-2015-414-4, line 22 (words 9 to end), line 23, and line 24 (words 1-7) and IC-2015-414-5, line 20 (words 5 to end), line 21 and line 22 do not pertain to legitimate matters of public concern.  It is also found that disclosure of such information would be highly offensive to a reasonable person.
     17.  It is found that disclosure of the records described in paragraph 16, above, would constitute an invasion of personal privacy within the meaning of §1-210(b)(2), G.S.  It is concluded, therefore, that such records are exempt from disclosure.
     18.   It is found that the remainder of the records, because they concern conduct occurring in the public workplace, pertain to legitimate matters of public concern.
     19.  It is also found that the information contained in the remaining in camera records is not highly offensive to a reasonable person.
     20.  It is found that disclosure of the remaining in camera records would not constitute an invasion of personal privacy within the meaning of §1-210(b)(2), G.S.
     21.  It is concluded that §1-210(b)(2), G.S., does not exempt such records from mandatory disclosure.
     22.  The respondents also claim that §1-210(b)(9), G.S., exempts the records from disclosure. 
     23.  Section 1-210(b)(9), G.S., provides that disclosure is not required of: “Records, reports and statements of strategy or negotiations with respect to collective bargaining[.]”
     24.  “[T]he collective bargaining exception [is] understood to provide privacy for ‘the give-and-take in negotiating sessions of collective bargaining…’ (Citations omitted).” Glastonbury Educ. Ass’n v. FOI Comm’n, 234 Conn. 704, 713 (1995).  “A key element of negotiations is the existence of an offer of possible settlement.  In decisions concerning labor disputes, courts have described negotiations as the process of submission and consideration of offers until an acceptable offer is made, and accepted…”  (Citations omitted; emphasis in original; internal quotation marks omitted.)” Bloomfield Educ. Ass’n v. Frahm, 35 Conn. App. 384, 390 (1994).
     25.  It is found that the in camera records concern disciplinary action and grievances.
     26.  The town contended that because the records contain “communications that go beyond the particulars of the [grievance] complaint,” and concern “working conditions, past employee performance, the relationship between an employee and supervisor, and argument intended to mitigate against proposed discipline,” the records are “negotiations for all intended purposes, wherein the grievant sets forth his/her reasoning why the proposed punishment is improper.”  The respondents claimed that grievances constitute negotiations to eliminate or lessen the proposed discipline. 
     27.  It is found, however, that with the exception of IC-2015-414-3, none of the in camera records contains an offer of possible settlement, nor does any record reflect the give-and-take typical of negotiation.
     28.  In addition, the Commission has previously concluded that negotiated agreements for discipline in grievance proceedings are not records, reports, or statements of negotiations with respect to collective bargaining, even if such agreements are the product of negotiations. Chris Powell and the Journal Inquirer v. Commissioner, State of Connecticut, Dept. of Social Services, Docket #FIC 1995-125 (March 13, 1996). 
     29. With the exception of IC-2015-414-3, it is found, therefore, that none of the in camera records is a record, report or statement of negotiation within the meaning of §1-210(b)(9), G.S.
     30.  With the exception of IC-2015-414-3, it is concluded that §1-210(b)(9), G.S., does not exempt the in camera records from disclosure.
     31.  With respect to IC-2015-414-3, it is found that such record is a statement of negotiation within the meaning of §1-210(b)(9), G.S.
     32.   It is concluded that IC-2015-414-3 is exempt from disclosure.
     33.   The respondents claimed, in addition, that any reprimand letters in the employees’ personnel files do not constitute disciplinary action until approved by the Town Manager.
     34.   It is found, however, that irrespective of whether a letter constitutes disciplinary action under the operative collective bargaining agreement, a reprimand letter placed in an employee’s personnel file is nevertheless a record “relating to disciplinary action,” as the complainants requested.
     35.   The respondents also claimed that the employees’ collective bargaining agreement prohibited disclosure of the personnel records. 
     36.   It is found that such agreement provides, in relevant part, that access to an employee’s personnel file is limited to certain town employees, such as immediate supervisor, department head, human resources, etc.
     37.  However, it is well settled that a public agency may not contract away its statutory obligations under FOIA. Lieberman v. Board of Labor Relations, 216 Conn. 253 (1990).
     38.  It is concluded that the collective bargaining agreement did not prohibit the respondents from complying with the complainants’ request.
     39.  It is concluded, therefore, that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding most of the records requested by the complainants.
     40.  With respect to whether the respondents violated the FOI Act by withholding the records in their entirety from the complainants, §1-214, G.S., provides 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… 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.

(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 or the employee's collective bargaining representative, if any, within seven business days from the receipt by the employee or such collective bargaining representative of the notice or, if there is no evidence of receipt of written notice, not later than nine business days from the date the notice is actually mailed, sent, posted or otherwise given.  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 or the employee's collective bargaining representative, 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.
(Emphasis added.)
     41.  It is concluded that the notification requirement and non-disclosure provision of §1-214(b) and (c), G.S., apply only when a public agency has a reasonable belief that disclosure would legally constitute an invasion of personal privacy. 
     42.  The respondent Director of Human Resources testified that she believed that disclosure of the requested records would constitute an invasion of personal privacy, and therefore notified that subject employees and their collective bargaining representative.
     43.  It is found that it was not reasonable for the respondents’ to believe that disclosure of most of the records, particularly the records of investigation, would constitute an invasion of personal privacy, in light of the presumption of disclosure of public employees’ personnel files, the Commission’s long history of ordering disclosure of disciplinary records, and upon review of the in camera records.
     44.  It is also found that, although the respondents notified the subject employees of the complainants’ request, they did not adhere to the particular requirements of §1-214(c), G.S.
     45.  It is concluded, therefore, that the respondents violated §1-214(b) and (c), G.S.
     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

     1.  Forthwith, the respondents shall provide to the complainants, free of charge, copies of the requested records, redacted as described in the paragraphs 16 and 32 of the findings of fact, above.
     2.  Henceforth, the respondents shall strictly comply with §§1-210(a), 1-212(a), and 1-214(b) and (c), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 27, 2016.
__________________________
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:
Alexander Wood, Kyle Penn, Gail Montany and the
Manchester Journal Inquirer
306 Progress Drive
Manchester, CT  06045
Vanessa Perry, Director of Human Resources, Town of
South Windsor; and Town of South Windsor
c/o Keith Yagaloff, Esq.
Law Office of Keith Yagaloff & Associates
1343 Sullivan Avenue
South Windsor, CT  06074
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2015-414/FD/cac/1/27/2016