Final Decision FIC2014-932
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In the Matter of a Complaint by |
FINAL DECISION | |
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James Torlai,
Complainant |
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against
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Docket #FIC 2014-932 | |
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Commissioner, State of Connecticut,
Department of Emergency Services and Public Protection; and State of Connecticut, Department of Emergency Services and Public Protection, Respondents |
August 26, 2015 |
The above-captioned matter was heard as a contested case on June 12, 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. It is found that, by letter dated November 20, 2014, the complainant requested “copies of any and all complaints filed against [Trooper] Bruce LaChance.”
3. It is found that, by letter dated November 25, 2014, the respondents’ legal affairs unit acknowledged the request, described in paragraph 2, above, and informed the complainant that it would be “reviewed and processed in accordance with the provisions of the Freedom of Information Act and any other applicable provision of law.”
4. It is found that, by letter dated December 13, 2014, the complainant, having not received any records responsive to his November 20th request, reiterated such request.
5. It is found that, by letter dated December 17, 2014, an attorney in the legal affairs unit informed the complainant that “a record request was sent to the Professional Standards Unit, [and that] [o]nce that unit responds, we will be able to further process your request.”
6. By letter dated and filed December 26, 2014, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (FOI) Act by failing to comply with the request for records, described in paragraph 2, above.
7. It is found that, by letter dated June 8, 2015, the respondents provided the complainant with copies of two complaints responsive to the request, described in paragraph 2, above. It is found that, in addition to these two complaints, the respondents maintain one other responsive record, consisting of a report of an internal affairs investigation conducted by the Hartford Police Department (HPD), during the time that Trooper LaChance was employed by HPD (the “HPD report”). However, the respondents withheld the HPD report from the complainant, claiming it is exempt from disclosure pursuant to §§5-225 and 1-210(b)(6), G.S.
8. At the hearing in this matter, the complainant contended that the respondents failed to promptly provide to him copies of the two complaints, described in paragraph 7, above. In addition, he disputed the applicability of the exemptions relied upon by the respondents with regard to the HPD report.
9. 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.
10. 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.
11. 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.”
12. It is found that the records described in paragraph 7, above, are public records within the meaning of §§1-200(5) and 1-210(a), G.S.
13. With regard to the complainant’s claim that the respondents failed to promptly provide him with copies of the two complaints, the respondents claimed that the six month delay in providing such records to the complainant resulted from “too many FOI requests” generally, with too few staff to respond to them. The attorney in the legal affairs unit charged with responding to the request, described in paragraph 2, above, testified, and it is found that this request “got lost in the shuffle.”
14. Based upon the foregoing, it is concluded that the respondents violated the promptness provisions of §§1-210(a) and 1-210(a), G.S., with respect to the two complaints, described in paragraph 7, above.
15. With regard to the respondents’ claim that the HPD report is exempt from disclosure pursuant to §5-225, G.S., that section, entitled: “Notice of final earned ratings on examinations. Right of inspection. Appeals,” provides, in relevant part:
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….
16. It is found that Trooper LaChance applied, and was hired, for the position of state police trooper trainee. The state police recruitment supervisor testified, and it is found, that the application for the position of state police trooper trainee consists of the results of a written examination, a polygraph examination, and a background investigation report. It is found that the applications are competitively scored based on a number of different factors, and that the candidates with the highest average scores are then selected. It is further found that the HPD report was part of the background investigation component of the examination, and was one of the items used in determining the final earned rating of Trooper LaChance’s examination for the position of state police trooper trainee.
17. In Mark Dumas and the Connecticut State Police Union v. Donald DeFronzo, Commissioner, Department of Administrative Services, et al., Docket #FIC 2013-663, the Commission concluded that §5-225, G.S., provides a right of inspection of “papers, markings, background profiles and other items used in determining the final earned ratings…for only those persons who have taken and failed an examination.
18. In Personnel Director, Department of Income Maintenance v. Freedom of Information Commission, 214 Conn. 312 (1990), the Supreme Court concluded that §5-225, G.S., provides an exception to disclosure to persons other than the test-taker:
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…provide[s] 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.
Id. at 321.
19. The complainant argued that the respondents’ claim that §5-225, G.S., exempts the HPD report in its entirety should be rejected because this Commission previously rejected the claim that reports of pre-employment background investigations are exempt from disclosure, citing James Torlai v. Commissioner, State of Connecticut, Department of Emergency Services and Public Protection; Division of State Police, et al., Docket #FIC 2013-167 (January 8, 2014). However, in that case, the respondents did not raise §5-225, G.S.,1 and the Commission therefore did not consider whether, under certain circumstances, §5-225, G.S., may provide an exemption to disclosure of a pre-employment background investigation report.
1
Rather, the respondents claimed the pre-employment background investigation report was exempt from disclosure in its entirety based on their "policy," and §§1-210(b)(10), and (19), G.S., §1-217, G.S., and Article 9, Section 3 of the NP-1 collective bargaining agreement.
20. The Commission has long held that disclosure of reports of internal affairs investigations, such as the HPD report, does not constitute an invasion of personal privacy of the subject of such report, pursuant to §1-210(b)(2), G.S., except in the rare case where the misconduct does not relate to official business. See Ioannis Kaloidis v. Chief, Police Department, City of Waterbury, et al., Docket #FIC 2013-047 (December 18, 2013). The Commission also consistently has held that such reports are not records compiled in connection with the detection or investigation of crime, and that therefore they do not fall within the so-called “law enforcement” exemption contained in §1-210(b)(3), G.S. See Kevin Litten and the Waterbury Repoublican-American v. Chief, Police Department City of Torrington, et al., Docket #FIC 2012-711 (July 24, 2013).
21. Based upon the facts and circumstances of this case, however, in which the HPD report was, among other items, used by the respondents to determine the final earned rating of Trooper LaChance’s examination for the position of state police trooper trainee, it is found that the HPD report in its entirety is exempt from disclosure pursuant to §5-225, G.S.
22. Accordingly, it is found that the respondents did not violate the FOI Act by withholding the HPD report, described in paragraph 7, above, from the complainant.
23. Based upon the findings and conclusions in paragraphs 21 and 22, above, it is not necessary to consider the respondents’ alternative claim that the HPD report is exempt from disclosure pursuant to §1-210(b)(6), G.S.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Henceforth, the respondents shall strictly comply with the promptness provisions of §§1-210(a) and 1-212(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of August 26, 2015.
__________________________
Cynthia A. Cannata
Acting Clerk of the Commission
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:
James Torlai
127 Barton Street
Torrington, CT 06790
127 Barton Street
Torrington, CT 06790
Commissioner, State of Connecticut, Department of Emergency
Services and Public Protection; and State of Connecticut,
Department of Emergency Services and Public Protection
c/o James W. Caley, Esq.
Assistant Attorney General
Office of the Attorney General
110 Sherman Street
Hartford, CT 06105
Services and Public Protection; and State of Connecticut,
Department of Emergency Services and Public Protection
c/o James W. Caley, Esq.
Assistant Attorney General
Office of the Attorney General
110 Sherman Street
Hartford, CT 06105
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2014-932/FD/cac/8/26/2015