Final Decision FIC2011-257
In the Matter of a Complaint by
Joe Wotjas and the New London Day,
||Docket #FIC 2011-257|
Director of Administrative Services,
Town of Stonington; and
Town of Stonington,
February 22, 2012
The above-captioned matter was heard as a contested case on November 29, 2011, at which time the complainants and the respondent 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. By letter filed May 18, 2011, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying their request for a public employee collective bargaining grievance.
3. It is found that the complainants made an April 21, 2011 request for a grievance filed on behalf of a town employee by his collective bargaining unit.
4. It is found that the respondent replied on April 29, 2011 that the employee “may have a privacy interest in the documents” requested, that the employee had objected to disclosure, and that the respondent would therefore not release the grievance.
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:
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, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212.
7. It is concluded that the requested grievance is a public record within the meaning of §§1-200(5) and 1-210(a), G.S.
8. Section 1-214(b), G.S., provides:
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. 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.]
9. Section 1-210(b)(2), G.S., provides in relevant part that disclosure is not required of “[p]ersonnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.”
10. It is found that the requested grievance is a personnel or similar file.
11. However, it is also found that the respondents offered no evidence to prove that they reasonably believed that disclosure of a grievance would “legally constitute an invasion of privacy” within the meaning of §1-214(b), G.S. Indeed, the Commission observes that the respondents at the hearing on this matter withdrew their claim pursuant to §§1-214(b) and 1-210(b), G.S. Additionally, the employee, who was present at the hearing and was informed by the hearing officer that no one was representing him or protecting his personal privacy issues, declined to participate in the proceedings, indicating that his only interest had been to pursue his grievance through the collective bargaining process. The Commission observes that, absent extraordinary circumstances, a claim that disclosure of a grievance constitutes an invasion of personal privacy would be presumptively unsupportable. See, Lieberman v. State Bd. of Labor Relations, 216 Conn. 253, 579 A.2d 505 (1990); Bloomfield Educ. Ass’n v. Frahm, 35 Conn. App. 384, 646 A.2d 247 (1994). The respondents concede that the grievance was solely over the reduction of the employee’s position from full to part time, and offered no evidence to support the existence, at any time, of any personal privacy issue associated with the grievance.
12. It is found, therefore, that the respondents had no reasonable belief that disclosure of the grievance would legally constitute an invasion of privacy.
13. It is therefore concluded that the respondents violated §1-214(b), G.S., by offering the employee and his collective bargaining unit an opportunity to object, and then withholding the grievance based on those objections.
14. The respondents now contend that the grievance is exempt from disclosure pursuant to §1-210(b)(4), G.S., which provides that disclosure is not required of:
Records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled …. [Emphasis added.]
15. The Commission observes that the more specifically applicable exemption concerning disclosure of a collective bargaining grievance is §1-210(b)(9), G.S., which provides that disclosure is not required of “[r]ecords, reports and statements of strategy or negotiations with respect to collective bargaining.” [Emphasis added.]
16. Our Appellate Court has conclusively determined that a public employee grievance itself is not a record of strategy or negotiation within the meaning of §1-210(b)(9), G.S. Bloomfield Educ. Ass’n v. Frahm, above. Although the respondents seek to avoid this conclusion by calling the grievance proceeding a “claim” under §1-200(8), G.S.,1 and framing their argument as an exemption under §1-210(b)(4), rather than §1-210(b)(9), this is a distinction without a difference. In order to prevail under either §1-210(b)(4) or (b)(9), G.S., the respondents must prove that the record pertains to strategy and negotiations, whether with respect to pending claims and litigation or collective bargaining. The respondents offered no evidence to prove that the grievance pertained to strategy and negotiations. More significantly, Bloomfield Educ. Ass’n, above, has already established that grievances generally do not pertain to strategy and negotiations.
Section 1-200(8) provides: “Pending claim” means a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.”
17. At the hearing on this matter, the respondents sought to support their position that the grievance is exempt under §1-210(b)(4), G.S., by arguing that the Commission is bound by its decisions in Docket #FIC 86-326, Silvestri and AFSCME v. Department of Correction, and Docket #FIC 2001-193, Mockler and AFSCME v. Judicial Department. However, neither of these cases is factually applicable, as neither concerned a public employee grievance. Rather, both cases involved other records used to formulate strategy or negations, such as witness statements, a report of a pre-disciplinary hearing, and investigative notes, not the simple grievance itself.
18. It is concluded that the grievance is patently not permissibly exempt from disclosure pursuant to §1-210(b)(4), G.S., and that the respondent violated the FOI Act by failing to disclose it.
19. The Commission is disturbed by the respondents’ use of the employee’s objection as a reason to withhold the grievance, when they had no reasonable belief that disclosure would legally constitute an invasion of privacy. The Commission is similarly disturbed by the respondents’ attempt to avoid the clear mandate of Bloomfield Educ. Ass’n, above, which held that grievances are not exempt from disclosure under the appropriate statute, §1-210(b)(9), G.S.
20. As to relief, the complainants made no request for the imposition of a civil penalty against the respondents, and the Commission in its discretion declines to consider such a penalty. However, the complainants did request educational training for the respondents, and the Commission believes that such a request is more than justified. The Commission assumes that the respondents’ actions were guided by the advice of counsel, and therefore encourages, in the strongest possible terms, the participation of counsel in such an educational training session.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent shall forthwith provide the complainant a copy of any grievance or grievances responsive to the complainants’ April 21, 2011 request.
2. The respondent shall arrange for an educational training session to be conducted by a member of the Commission’s staff.
Approved by Order of the Freedom of Information Commission at its regular meeting of February 22, 2012.
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:
Joe Wotjas and the New London Day
203 North Main Street
Stonington, CT 06378
Director of Administrative Services, Town of Stonington;
and Town of Stonington
c/o Michael E. Satti, Esq.
185 South Broad Street
Pawcatuck, CT 06355
Cynthia A. Cannata
Acting Clerk of the Commission