Hearing Officer's Report

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by
Report of Hearing Officer
Ethan Fry and The Valley Independent

Sentinel,
Complainants
against
Docket #FIC 2014-408
Mayor, Town of Ansonia; and

Town of Ansonia,
Respondents
March 5,2015
The above-captioned matter was heard as a contested case on January 20,2015, at

which time the complainants and the respondents appeared and presented testimony,
exhibits and argument on the complaint.
Aftcr consideration of the entire record, the following facts ale found and
conclusions oflaw are reached:
1. The respondents
are public agencies
within the meaning of $1-200(1), G.S.
2. It is found that, by email dated Jure 20,2014, the complainants requested that
the respondents provide them with copies of: a) the personnel file of James Tanner, a
former zoning enforcement official in the town; and b) "the settlement agreement
between the city and Tanner to resolve the complaint he filed against the city [sic] March
27 ,2014 with the state of Connecticut's Board of Labor Relations".
3. It is found that the respondents provided the personnel file of It&. Tanner to the
complainants, except for the settlement agreement described atparugraph2b), above.
4. By email
dated and filed on June 27,2014, the complainants appealed to this

Commission, alleging that the respondents failed to disclose the settlement agreement and
thereby violated of the Freedom of Information Act ("FOIA").
5. Section l-2l0(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, shali be public records and every person shall
have the right to (1) inspect such records promptly during
Dncket I+FIC 2014-408
Page 2
regular office or business hours .. .or (3) receive a copy of such

records in accordance with section l-212.
6. Section l-212(a)(l), G.S., provides in relevant part that:

Any person applying in writing shall receive, promptly upon
request, a plain, facsimile, electronic or certified copy of any
public record. The type of copy provided shall be within the
discretion ofthe public agency, except (1) the agency shall
provide a certified copy whenever requested, and (2) if the
applicant does not have access to a computer or facsimile
machine, the public agency shall not send the applicant an
electronic or facsimile copy.
7. It is found that the settlement agreement is a public record within the meaning
of $$1-210(a) and 1-212(a), G.S.
8. At the hearing, the respondents stated that the settlement agreement contained
provision wherein the parties agreed not to disclose the terms of the agreement, unless
ordered to do so by arr "appropriate legal authority". Moreover, because the settlement
agreement was exclusively maintained in Mr. Tanner's personnel file, and the
respondents stated that they believed flrat disclosure of the settlement agreement would
constitute an invasion of Mr. Tanner's privacy, the respondents provided Mr. Tanner's
attorney an opportunity to object to disclosure of the settlement agreement and also
provided notice of this Commission's hearing. Finally, respondents stated that,
because Mr. Tanner was not a member of a collective bargaining unit, notice was not
provided to any collective bargaining representative.
a
9. It is found that, by email dated January 8,2015, Mr. Tanner's attorney, Fralk
Burke, did object on behalf of his client to disclosure of the settlement agreement, stating
to the respondents that the "agreement specifies it will not be released unless ordered by
legal authority." However, neither attomey Burke nor Mr. Tanner appeared at tiris
Commission's hearing.
10. Following the close of the hearing in this matter, the respondents submitted
the settlement agreement to the Commission for an in camera inspection. The settlement
agreenrent is two pages, hereby designated: IC2014-408-1 and 2.
11. In Perkins v. Freedom of Information Commission,22S Conn 158, 175
(1993), the Supreme Court set forth the test for an invasion of personal privacy, necessary
to establish the exemption at $1-210(bX2), G.S. The claimant must first establish that the
records 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
Docket #FIC2014-408
Page
pertain to legitintate matters of public conccrn, and second, that such infonnation is
highly offensive to a reasonable person.
12. lt is found thatlc-2014-408-l and IC-201 4-408-2 are "personnel files" or

"similar files" within the meaning of $1-210(bX2), G.S. Connecticut Alcohol and Drue
Abuse Commission v. FOIC,233 Conn 28 (1995).
13. Based on the in camera inspection, it is found thatIC-2014-408-1 and lC2014-408-2 do pertain to legitimate matters of public concern and that disclosure of these
records would not be highly offensive to a reasonable person.
14. Based upon the findings at paragraphs 13, it is conciuded that the disclosure
of IC-2014-408-1 andlC-2014-408-2 would not invade the privacy of Mr. Tanner, and
that such records are not exempt from mandatory disclosure pursuant to $1-210(b)(2),
G.S.
15. This Commission has on numerous previous occasions mled, when

addressing the issue of the disclosure of settlement agreements entered into by public
agencies, that such agencies may not contract away the public's right to know under the
FOIA by including a provision prohibitin g any party to the agreement from disclosing its
terms. Docket #FIC 2006-687, Michel Mennesson v. Manaeing Attorney, State of
Connecticut. Offlce of Protection and Advocacy for Persons with Disabilities; Docket
#FIC2006-299, Ted Mann and the New London Day v. Director of Law. Citlr of New
London; Docket #FIC 2001-530, David Critchell and Walerbur), Republican-American v.
Corporation Counsel" CitLof Torrington, and Docket #FIC 94-063, Carol L. Panke v.
Bloomfield Town Manager.
16. Moreover, in this case, as in Docket #FIC 2006-299 cited immediately above,
the confidentiality clause contained in the settlement agreement specifically recognizes
that the parties may be required to disclose such agreement if ordered by an appropriate
legal authority.
17. It is therefore concluded that the confidentiality agreement does not
supersede the FOIA and that the failure of the respondents to promptly disclose the
settlement agreement constituted a violation of $91-210(a) and 1-212(a), G.S.
The following order by the Commission is hereby recommended on the basis
the record concerning the above-captioned complaint:
1.
The respondents shall provide a copy of the settlement agreement to the

complainants forthwith, with no copying c
as
FIC20 1 4-408/HOR/CAL/03 050
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FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

Report of Hearing Officer

Ethan Fry and The Valley Independent

Docket #FIC 2014-408

Mayor, Town of Ansonia; and

The above-captioned matter was heard as a contested case on January 20,2015, at

are public agencies

within the meaning of $1-200(1), G.S.

dated and filed on June 27,2014, the complainants appealed to this

thereby violated of the Freedom of Information Act ("FOIA").

G.S., provides, in relevant part:

Except as otherwise provided by any federal law or state statute,

Dncket I+FIC 2014-408

regular office or business hours .. .or (3) receive a copy of such

6. Section l-212(a)(l), G.S., provides in relevant part that:

12. lt is found thatlc-2014-408-l and IC-201 4-408-2 are "personnel files" or

15. This Commission has on numerous previous occasions mled, when

The respondents shall provide a copy of the settlement agreement to the

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