The above-captioned matter was heard as a contested case on June 15, 2015, at which time the complainant and 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 January 7, 2015, the complainant made a written request to the respondents for the “performance evaluations” for Lauren McAulay, a current employee with the respondent, Department of Rehabilitation Services (“DORS”), and Sandra Wright, a former employee with the Bureau of Rehabilitation Services (“BRS”).

     3.  It is found that, by email dated January 8, 2015, the respondents’ counsel initially informed the complainant that her request was denied based on the §1-210(b)(2), G.S., exemption for “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.”

     4.  By letter filed on January 12, 2015, the complainant appealed to this Commission, alleging that the respondents failed to provide copies of certain records referenced in paragraph 2, above, in violation of the Freedom of Information Act.

     5.  At the hearing in this matter, the complainant indicated that the only records at issue in this appeal were the performance evaluations for Sandra Wright.  The complainant’s request for the performance evaluations for Lauren McAulay was abandoned.¹

     6.  Section 1-200(5), G.S., defines “public records or files” as:

     7.  Section 1-210(a), G.S., provides in relevant part that: 

     8.  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.”

     9.  It is found that, to the extent the performance evaluations for Ms. Wright exist, such records are public records within the meaning of §1-210(a), G.S., and must be disclosed in accordance with §§1-200(5), 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.

     10. At the hearing in this matter, the complainant contended that the respondents purposefully withheld the requested records.

     11. It is found that, on March 12, 2015, the respondents notified Ms. Wright of the complainant’s request and afforded her the opportunity to object to disclosure of her performance evaluations. 

     12. It is found that, by letter dated March 26, 2015, the respondents updated their response to the complainant and informed her that certain records, including the requested performance evaluations for Ms. Wright, were not in their possession.  Therefore, the respondents asserted that the requested records could not be provided.

     13. At the hearing in this matter, the respondents did not claim any exemption to disclosure.  Rather, the respondents reiterated their position set forth in the March 26, 2015 letter that the requested records were not in their possession.  However, the Commission takes this opportunity to remind the parties of In Personnel Director, Department of Income Maintenance v. FOIC, 214 Conn. 312, 320-21 (1990), in which our Supreme Court held that §5-237, G.S., limits access to a classified employee’s service rating to the employee who is subject of such rating.  See also Kevin Daly, Jr. and the City of Waterbury v. Commissioner, State of Connecticut, Department of Correction, et. al., Docket #FIC 2014-032.

     14. The respondents’ witness, a human resource manager with DORS, testified, and it is found, that following their initial January 8, 2015 response to the complainant, the respondents searched for the records at issue and made a good faith determination that no such records were in their possession.

     15. In support of their assertion that the requested records were not in their possession, the respondents’ witness testified, and it is found, that the formation of DORS resulted from a 2012 reorganization that merged several existing state commissions and bureaus, including BRS.  BRS was previously a part of the Department of Social Services (“DSS”).  The witness testified, and it is found that Ms. Wright was employed by BRS and was terminated prior to that reorganization.  The witness further testified, and it is found, that in 2013, DORS took over the management of personnel records of all active employees from BRS and created personnel records unique to DORS, and that personnel records of terminated employees from BRS were not maintained by DORS.  The witness opined that personnel records of former BRS employees are in the possession of DSS.

     16. Based upon the testimonial evidence in this matter, it is found that the respondents do not maintain or keep on file the requested records.

     17. With regard to the complainant’s allegation that the respondents purposefully withheld the requested records, it is found that there is no credible evidence in the record to support such a speculative allegation.
 
     18. It is therefore concluded that the respondents did not violate §§1-210(a) and 1-212(a), G.S., as alleged by 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 hereby dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of September 24, 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:
Marie Geelan
Department of Rehabilitation Services
158 Main Street
Ansonia, CT  06401

Commissioner, State of Connecticut, Department of Rehabilitation Services;
and State of Connecticut, Department of Rehabilitation Services
c/o Antony A. Casagrande, Esq.
55 Farmington Avenue
12th Floor
Hartford, CT  06106

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2015-028/FD/cac/9/24/2015