Final Decision FIC2015-434
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In the Matter of a Complaint by |
FINAL DECISION | |
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Raymond Ostasiewski,
Complainant |
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against
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Docket #FIC 2015-434 | |
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Commissioner, State of Connecticut,
Department of Revenue Services; and State of Connecticut, Department of Revenue Services, Respondents |
January 27, 2016 |
The above-captioned matter was heard as a contested case on October 8, 2015, at which time the complainant and respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. The respondents submitted unredacted records in which various exemptions were claimed by the respondents for in camera inspection.
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 May 18, 2015, the complainant made a written request to the respondents for records related to alleged acts of discrimination, which allegations were the subject of a complaint filed by the complainant against the respondents with the Connecticut Commission on Human Rights and Opportunities.
3. It is found that upon receipt of the complainant’s request, the respondents identified responsive records, including a single record that concerned a former employee, Katrina Kadyszewski, and after making a determination that disclosure of such record would violate the personal privacy of Ms. Kadyszewski, the respondents notified Ms. Kadyszewski and her collective bargaining representative of the request.
4. It is found that, by letter dated June 26, 2015, the respondents informed the complainant that they were providing some responsive records to the request described in paragraph 2, above, but that they were withholding certain responsive records due to applicable Freedom of Information (“FOI”) exemptions, including the personal privacy exemption contained in §1-210(b)(2),G.S., due to an objection made by Ms. Kadyszewski and the exemption for attorney-client privileged communications pursuant to §1-210(b)(10), G.S.
5. By letter filed on July 5, 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 FOI Act, including:
a) copies of any and all documentation, including notes from Jeanette Perez’s interviews with Katrina Kadyszewski, John Biello and John Kutsukos from April 14, 2014 through May 19, 2014, which are related to any complaints by Katrina Kadyszewski during that same period of time, April 24, 2014 through May 9, 2014 (including those dates);
b) any and all documentation in any form that Jeanette Perez has, which is related to my accusation that Katrina Kadyszewski’s September 11, 2013 email to Andrea Taylor was untrue and meant to damage my reputation;
c) copies of any and all documentation that Katrina Kadyszewski provided to Jeanette Perez from April 24, 2014 through May 9, 2014 (including those dates); and
d) any and all requests for information and emails from Jeanette Perez; and any interview notes taken by Jeanette Perez, related to my accusation that Katrina Kadyszewski’s September 11, 2013 e-mail to Andrea Taylor was untrue and meant to damage my reputation.
6. At the hearing in this matter, the complainant indicated that the only records at issue in this appeal were those described in paragraph 5(a) through (c). The complainant’s request described in paragraph 5(d) was abandoned.1
1
The respondents claimed the attorney-client privileged exemption contained in §1-210(b)(10), G.S. Upon receipt of the in camera inspection index, the complainant was satisfied that such communications were indeed exempt from disclosure.
7. Section 1-200(5), G.S., defines “public records or files” as:
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.
8. 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.
9. 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.”
10. It is found that, to the extent that the records identified in paragraph 5(a) through (c), above, exist and are maintained by the respondents, such records are public records within the meaning of §§1-200(5) and 1-210(a), G.S., and must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.
10. It is found that, to the extent that the records identified in paragraph 5(a) through (c), above, exist and are maintained by the respondents, such records are public records within the meaning of §§1-200(5) and 1-210(a), G.S., and must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.
11. At the hearing in this matter, the complainant conceded that certain records were provided to him by the respondents, but asserted that the respondents’ response was incomplete.
12. The respondents contended that they have provided the complainant with all records that they maintain, which are responsive to the requests described in paragraph 5(a) and (b), above. The respondents are in possession of a single record responsive to the request, described in paragraph 5(c), above, that was withheld from the complainant, but claim that the record is exempt from mandatory disclosure pursuant to the personal privacy exemption contained in §1-210(b)(2), G.S.
13. With respect to the complainant’s request described in paragraph 5(a) and (b), above, for records related to a complaint made by Katrina Kadyszewski against the complainant and the complainant’s accusations regarding that complaint, it is found that all responsive records maintained by the respondents were provided to the complainant. No contrary evidence was presented at the hearing to support the complainant’s assertion that there were additional records maintained by the respondents that were withheld.
14. The complainant’s reliance on a public communication in which a human resource professional states that the respondents “took appropriate action” with respect to Ms. Kadyszewski’s complaint to support his assertion that additional responsive records exist is misplaced. As this Commission has frequently observed, such public communications alone, do not support the conclusion that additional records exist beyond those provided to the complainant, or that the respondents maintain any such additional records.
15. The only remaining record at issue is a single record responsive to the request described in paragraph 5(c), above, for “copies of any and all documentation that Katrina Kadyszewski provided to Jeanette Perez from April 24, 2014 through May 9, 2014 (including those dates),” that the respondents claim is exempt from disclosure pursuant to the personal privacy exemption contained in §1-210(b)(2), G.S.
16. Section 1-210(b)(2), G.S., provides, in relevant part, that nothing in the Freedom of Information Act shall require disclosure of “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .”
17. The Supreme Court set forth the test for the exemption contained in §1-210(b)(2), G.S., in Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993). The claimant must first establish that the files 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 such information is highly offensive to a reasonable person.
18. The respondents submitted the responsive record described in paragraph 5(c), above, to the Commission for in camera inspection (hereinafter referred to as the “in camera record”), which respondents describe as an internal complaint filed by Ms. Kadyszewski against the complainant in which she makes several allegations, including the creation of a hostile work environment. The in camera record consists of one page, which shall be identified as IC-2015-434-01.
19. Based on the in camera inspection, it is found that IC-2015-434-01 is an internal complaint filed by Ms. Kadyszewski against the complainant as described by the respondents in paragraph 18, above. It is further found that IC-2015-434-01 constitutes a personnel or similar file within the meaning of §1-210(b)(2), G.S. See Connecticut Alcohol & Drug Abuse Commission v. Freedom of Information Commission, 233 Conn. 28 (1995) (investigative file of sexual harassment complaint by one employee of state agency against coworker constituted personnel or similar file); Carol Lambiase and the Connecticut Independent Labor Union Local 222 v. City Manager, City of Norwich; and City of Norwich, Docket #FIC 2010-630 (July 13, 2011) (preliminary and final recommendations created in connection with a hostile work environment investigation constituted personnel records within the meaning of §1-210(b)(2), G.S.).
20. In order to justify their reliance on the exemption (and the subsequent notice of the request to Ms. Kadyszewski), the respondents must have determined that disclosure of IC-2015-434-01 would constitute an invasion of personal privacy in light of the general principle that records relating to the employees of public agencies are presumptively legitimate matters of public concern. Perkins, above, at 174. “[W]hen a person accepts public employment, he or she becomes a servant of and accountable to the public. As a result, that person’s reasonable expectation of privacy is diminished . . . .” Id., at 177. “The public has a right to know not only who their employees are, but also when their public employees are and are not performing their duties.” Id.
20. In order to justify their reliance on the exemption (and the subsequent notice of the request to Ms. Kadyszewski), the respondents must have determined that disclosure of IC-2015-434-01 would constitute an invasion of personal privacy in light of the general principle that records relating to the employees of public agencies are presumptively legitimate matters of public concern. Perkins, above, at 174. “[W]hen a person accepts public employment, he or she becomes a servant of and accountable to the public. As a result, that person’s reasonable expectation of privacy is diminished . . . .” Id., at 177. “The public has a right to know not only who their employees are, but also when their public employees are and are not performing their duties.” Id.
21. It is found that the respondents reviewed IC-2015-434-01 and made a determination that disclosure of such record would legally constitute an invasion of Ms. Kadyszewski’s personal privacy. It is further found that the respondents’ determination was made by the respondents’ first assistant commissioner/general counsel and based on the confidential nature of the complaint process in which several allegations were made was against a fellow employee and the discussion of the complaining employee’s service ratings contained in the complaint.
22. It is found that the respondents notified Ms. Kadyszewski of the request. It is further found that Ms. Kadyszewski objected to disclosure, and the respondents consequently refused to disclose IC-2015-434-01, in accordance with §1-214(c), G.S.2
22. It is found that the respondents notified Ms. Kadyszewski of the request. It is further found that Ms. Kadyszewski objected to disclosure, and the respondents consequently refused to disclose IC-2015-434-01, in accordance with §1-214(c), G.S.2
2
The Commission notes that Ms. Kadyszewski did not seek to intervene in this matter or submit an affidavit in support of her objection to disclosure. Rather, respondents submitted a letter dated October 7, 2015 prepared by Ms. Kadyszewski, in which she restated her earlier objection to disclosure of IC-2015-434-01. However, the letter is devoid of any claim or justification that such disclosure would constitute an invasion of her personal privacy.
23. Section 1-214, G.S., provides, in relevant part, that:
(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, 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.
(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.
(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.
24. With respect to the respondents’ claim of the confidential nature of the complaint process, it is found that any alleged assurances or promises of confidentiality by the respondents neither provides an exemption to the disclosure of IC-2015-434-01, nor in itself establishes the reasonableness of an expectation of privacy. Moreover, in the absence of explicit legal authority for the confidentiality of any information contained in the record at issue, it is further found that any such assurances are contrary to public policy. See Kuresczka v. Freedom of Information Commission, 228 Conn. 271, 280 (1994) (“[n]o public agency can shield public records from disclosure merely by agreeing to keep such records confidential”).
25. It is found that the information contained within IC-2015-434-01 pertains to legitimate matters of public concern, within the meaning of Perkins, as it relates to the conduct of public business in a public agency, including the alleged creation of a hostile work environment and the effective operation of a public agency. See e.g., Greenwich Silver Shield Association v. Director, Human Resources Department, Town of Greenwich, et al., Docket #FIC 2013-546 (July 9, 2014)(“there is a legitimate public concern in the information contained in the Marcum Report pertaining to an investigation of claims alleging civil rights violations and the creation of a hostile work environment”); Hugh Curran v. Mayor, City of Waterbury, Docket #FIC 2003-020 (September 10, 2003)(“there is a legitimate public concern in the information contained in the report, which investigates allegations of mismanagement and the creation of a hostile work environment”); Rocque v. FOIC, 255 Conn. 651 (2001) (legitimate public concern in information such as the date when and location where harassment allegedly occurred; a letter to the complainant from the assistant commissioner who investigated the complaint, seeking the complainant’s cooperation and the complainant’s concern for job-related consequences from the alleged harassment).
26. Regarding the respondents’ assertion that IC-2015-434-01 contains a discussion of Ms. Kadyszewski’s service ratings, §5-237, G.S., provides, in relevant part, that: “[a]ny employee in the classified service shall have the right, at reasonable times during office hours, to inspect his service rating, as shown by the records of the Department of Administrative Service or the department, agency or institution in which such employee is employed.”
27. In Personnel Director, Department of Income Maintenance v. FOIC, 214 Conn. 312, 320-21 (1990), our Supreme Court concluded that §5-237, G.S., provides a statutory exemption to the disclosure provisions of §1-210(a), G.S., and specifically limits access to an employee’s service rating to the employee who is the subject of such rating.
28. It is found that IC-2015-434-01 contains only general and non-descript references to certain individual performance ratings contained within Ms. Kadyszewski’s service rating for previous years. It is further found that IC-2015-434-01 itself cannot be considered a “service rating,” and it does not contain enough details regarding Ms. Kadyszewski’s service rating to come within the purview of the statutory exemption contained in §5-237, G.S.3
3
The Commission declines to make a determination regarding whether there could ever be enough detail in a record that merely references a service rating to permit the application of the §5-537, G.S. exemption. Such a determination is not necessary in the present matter.
29. It is found that nothing contained within IC-2015-434-01 is highly offensive to a reasonable person. The record provides neither intimate nor non-work-related matters. It is further found, therefore, that disclosure of IC-2015-434-01 at the time of the complainant’s request would not have constituted an invasion of Ms. Kadyszewski’s personal privacy, within the meaning of §1-210(b)(2), G.S.
30. It is therefore concluded that IC-2015-434-01 pertains to a legitimate matter of public concern and is not highly offensive to a reasonable person. It is further concluded that its disclosure would not constitute an invasion of Ms. Kadyszewski’s personal privacy and, therefore, such record is not exempt from disclosure pursuant to §1-210(b)(2), G.S.
31. The Commission recognizes that the respondents attempted to act in accordance with §1-214, G.S. However, it is found that it was not reasonable, within the meaning of §1-214(b), G.S., for the respondents to believe, at the time of the complainant’s request, that disclosure of IC-2015-434-01 would constitute an invasion of Ms. Kadyszewski’s personal privacy.
31. The Commission recognizes that the respondents attempted to act in accordance with §1-214, G.S. However, it is found that it was not reasonable, within the meaning of §1-214(b), G.S., for the respondents to believe, at the time of the complainant’s request, that disclosure of IC-2015-434-01 would constitute an invasion of Ms. Kadyszewski’s personal privacy.
32. Accordingly, it is concluded that the respondents violated the disclosure and promptness requirements of §§1-210(a), 1-212(a) and 1-214(b), G.S., by refusing to provide a copy of IC-2015-434-01 as requested by the complainant.
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 the complainant with a copy of IC-2015-434-01.
1. Forthwith the respondents shall provide the complainant with a copy of IC-2015-434-01.
2. Henceforth, the respondents shall strictly adhere to the disclosure and promptness requirements of §§1-210(a), 1-212(a) and 1-214(b), 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:
Raymond Ostasiewski
148 Midland Drive
Meriden, CT 06450
148 Midland Drive
Meriden, CT 06450
Commissioner, State of Connecticut, Department of Revenue Services;
and State of Connecticut, Department of Revenue Services
c/o Louis Bucari, Esq. and
Erica McKenzie, Esq.
25 Sigourney Street
19th Floor
Hartford, CT 06106
and State of Connecticut, Department of Revenue Services
c/o Louis Bucari, Esq. and
Erica McKenzie, Esq.
25 Sigourney Street
19th Floor
Hartford, CT 06106
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2015-434/FD/cac/1/27/2016