The above-captioned matter was heard as a contested case on May 28, 2013, at which time the complainants 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 2, 2012, the complainants requested a copy of an internal affairs investigation report pertaining to Sgt. John Recchini, arising out of “a returned check at a local check cashing store” (the “report”), which investigation resulted in disciplinary action.

     3.  It is found that, on December 11, 2012, the respondents denied the request, described in paragraph 2, above, stating that disclosure of the report would constitute an invasion of Sgt. Recchini’s privacy.

     4.  By letter of complaint, dated December 21, 2012 and filed December 26, 2012, the complainants 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. 

     5.  Section 1-200(5), G.S., provides:

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

     7.  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.”

     8.  It is found that the record described in paragraph 2, above, is a public record within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S. 

     9.  At the hearing in this matter, the respondents claimed the report is exempt from disclosure pursuant to §§1-210(b)(2) and 1-210(b)(3)(G), G.S.  

     10. With regard to the respondents’ §1-210(b)(2), G.S., claim of exemption, that section provides, in relevant part, that disclosure is not required of “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.” 

     11. Section 1-214(b), G.S., provides, in relevant part:

     12.  Section 1-214(c), G.S. provides, in relevant part:

     13. The chief testified at the hearing in this matter that he withheld the report because he believed, based upon statements made by Sgt. Recchini during the investigation, that Sgt. Recchini did not want certain information gathered during the investigation to be made public. 

     14. It is found that the respondents did not, upon receipt of the request, described in paragraph 2, above, “immediately” notify Sgt. Recchini, in accordance with §1-214(b), G.S.  Rather, it is found that, approximately six (6) months after receipt of such request, the respondents notified Sgt Recchini, by letter dated May 7, 2013, and further provided him with a copy of the Notice of Hearing and Order to Show Cause in this matter. 

     15. It is found that Sgt. Recchini did not file a written objection to the disclosure of the report, nor did he appear at the hearing to intervene for the purpose of offering evidence as to why the disclosure of the report would legally constitute an invasion of his privacy.  
 
     16. It is concluded that the respondents do not have standing to assert the privacy rights of their employee, and further, that any existing privacy rights belong to the employee, and not to the respondents.  Ken Byron and the Hartford Courant v. First Selectman, Town of Westbrook, Docket #FIC 2002-580 (September 10, 2003); Jonathan Kellogg, Trip Jennings and Waterbury Republican-American v. Chief, Police Department, Borough of Naugatuck and Rick Smolicz, Docket #FIC 2001-489 (September 25, 2002); Thedress Campbell v. City Treasurer, City of Hartford, Docket #FIC 2000-022 (August 9, 2000); Walter J. Casey v. Chairman, Board of Education, Town of Darien, Docket #FIC 1997-068 (October 22, 1997) (right to assert invasion of privacy belongs to employee whose privacy is at issue, and respondents who failed to give required notice to employee do not have standing to assert exemption).

     17. However, even if standing had been established in this matter, a careful review of the in camera records leads to the conclusion that §1-210(b)(2), G.S., does not exempt such records from mandatory disclosure.  The leading case on this matter, Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993), requires that a clamant must first establish that the files in question are personnel, medical or similar files.  Second, the claimant must show that discourse of the records would constitute an invasion of personal privacy.  In determining whether disclosure 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.

     18. It is found that the report is a “personnel, medical or similar file.”

     19. Based upon careful review of the in camera records, it is concluded that such records pertain to legitimate matters of public concern and that disclosure of such records would not be highly offensive to a reasonable person.  It is also concluded, therefore, that disclosure of the requested records would not constitute an invasion of personal privacy under Perkins, id.

     20. With regard to the respondents’ claim under §1-210(b)(3)(G), G.S., that provision states, in relevant part, that disclosure is not required of:

     21. At the hearing in this matter, the respondents claimed that, because the incident that lead to the internal affairs investigation also was the subject of a criminal investigation that did not result in a conviction, the allegations contained in both the criminal incident report and in the related internal affairs report, are uncorroborated allegations that are not subject to disclosure, pursuant to §1-210(b)(3)(G), G.S.

     22. The respondents submitted the report, described in paragraph 2, above, for in camera inspection.¹

     23. The Commission has long held that an internal affairs report is not a record compiled in connection with the detection or investigation of crime, but rather is a non-criminal internal investigation of alleged violations of administrative regulations.  See Tracey Thomas and the Hartford Courant v. Legal Affairs Unit, State of Connecticut, Department of Public Safety, Docket #FIC 1996-153 (November 30, 1996); Junta for Progressive Action, et. al., v. John A. Danaher III, Commissioner, State of Connecticut, Department of Public Safety, Docket #FIC 2007-416 (November 8, 2007); Kevin Brookman v. Daryl Roberts, Chief, Police Department, City of Hartford, Docket #FIC 2011-224 (January 25, 2012). 

     24. To the extent there is information contained in the report that also is contained in the police incident report, it is found that such information does not constitute “uncorroborated allegations” within the meaning of §1-210(b)(3)(G), G.S.

     25. “Corroborate” means “to strengthen, to add weight or credibility to a thing by additional and confirming facts or evidence.” Rachel Gottlieb and the Hartford Courant v. State of Connecticut, Department of Public Safety, Division of State Police, Docket #FIC 1994-291, citing Blacks Law Dictionary, Sixth Edition (1990).  Moreover, it is found that allegations may be corroborated without rising to the level of probable cause that a crime has been committed.  Gregory Bishop v. Support Services Department, Police Department, City of Middletown, et al., Docket #FIC 2011-372 (April 11, 2012).

     26. In Gottlieb, the Commission found that “the reports contain similar accounts relayed to the respondent by different interviewees concerning the allegations under investigation.”  After careful review of the in camera records, it is found that, in the present case, the allegations at issue are not uncorroborated. 
 
     27. Accordingly, it is found that the report, described in paragraph 2, above, is not exempt from disclosure pursuant to §1-210(b)(3)(G), G.S. 

     28. Based upon the foregoing, it is concluded that the respondents violated §§1-210(a), and 1-212(a), G.S., by failing to provide a copy of the report, described in paragraph 2, above, to the complainants, and that they also violated §§1-214(b) and (c), G.S., in this matter.

     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 the record, described in paragraph 2, above, free of charge.  The respondents may redact the home address, social security number, and bank account numbers that may be contained in such record.

Approved by Order of the Freedom of Information Commission at its regular meeting of July 24, 2013.

__________________________
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:

Kevin Litten and the Waterbury Republican-American
c/o Thomas G. Parisot, Esq.
Secor, Cassidy & McPartland, P.C.
41 Church Street
Waterbury, CT  06702

Chief, Police Department, City of Torrington;
and Police Department, City of Torrington
c/o Raymond J. Rigat, Esq.
Corporation Counsel for City of Torrington
140 Main Street
Torrington, CT  06790

Jeffrey H. Matchett and AFSCME Council 15
Executive Director
700 West Johnson Avenue
Suite 305
Cheshire, CT  06410

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2012-711/FD/cac/7/24/2013