MERIDEN — The Freedom of Information Commission ruled the city violated open records laws by initially withholding and then heavily redacting a letter of discipline issued to City Attorney Deborah Moore last year. It is unclear if the city will be appealing the ruling.
The Record-Journal filed a complaint with the commission after being denied a Freedom of Information Act request for the letter in July 2017. Moore later provided a redacted copy to the Record-Journal in October, the day before the matter was set to go before an FOIC hearing officer for review.
The disciplinary letter dated May 22, 2017 was issued to Moore after she forwarded an email from former City Manager Guy Scaife and Human Resources Director Marci Nogueira regarding the decision to deny a former staff attorney an extension of leave.
The name of the attorney denied leave is redacted from the letters, however, the City Council voted on a budget removing the position of former Attorney Jennifer Farrell in May. Corporation Counsel Michael Quinn had previously disclosed Farrell resigned May 8 after being denied an extension of unpaid family and medical leave.
Farrell had taken 12 weeks of paid leave in 2016 and returned to work in January before requesting three months' unpaid leave. After that period ended, Farrell requested another six months' leave, which was denied.
The email Moore forwarded revealed Corporation Counsel Michael Quinn's "displeasure" at how the denial of the extension of leave was handled. Scaife subsequently became aware Moore had forwarded the email without his consent and Quinn issued Moore the letter of discipline, finding her in violation of the city's Computer Use and Electronic Communication Policies, while also criticizing Moore's conduct during a subsequent meeting with Scaife and Mayor Kevin Scarpati.
Moore issued a rebuttal to her disciplinary letter May 23, "respectfully" disagreeing with the charges against her and requesting the letter be removed from her file.
In an October hearing, Moore and Nogueira argued the redactions to the letter were exempt from disclosure as they contained an employee’s personal health information, a violation of the Health Insurance Portability and Accountability Act. They also argued that disclosure would invade personal privacy under the state Supreme Court decision Perkins vs. FOIC, which found that public agencies can withhold records if the file “does not pertain to a legitimate matter of public concern” and disclosure would be “highly offensive to a reasonable person,” known as the Perkins test.
Additionally, the city claimed the letter was in draft form as Moore was in the process of disputing her discipline
FOIC hearing officer Attorney Lisa Siegel rejected these arguments, finding the redactions were not a violation of HIPAA as they merely identified the employee and did not disclose any details regarding that employee’s health. Siegel also found that the information did not meet the Perkins Test and that the letter was not a preliminary draft “simply because the respondents may be reconsidering the discipline imposed.”
"Upon examination of the unredacted letter of discipline, and the unredacted letter of rebuttal, and in light of the evidence in the record, it is found that it was not reasonable for the respondents to believe that disclosure of such records would legally constitute an invasion of privacy," Siegel wrote in a six-page report.
Siegel concluded the city violated open records laws by witholding the redacted information and failed to provide the document to the Record-Journal promptly.
The Freedom of Information Commission was initially scheduled to rule on the matter in December, however, it was continued at Moore’s request after Siegel submitted an amendment to the report providing more detail regarding her decision. The commission reconvened Wednesday and unanimously voted to accept Siegel’s report.
FOIC Chairman Owen P. Eagen sympathized with Moore’s perception that the contents of the letter were offensive to her personally, but concluded they did not meet the standards of the Perkins test for exemption from disclosure.
“Although it may be offensive, I don’t know that it is highly offensive,” Eagen said. “I understand how sensitive it is to you as counsel, but I don’t find it meets the standard of highly offensive.”
Per the commission’s ruling, the city is required to provide an unredacted copy of the letter to the Record-Journal free of charge. Nogueira did not respond to a request for the document Thursday.
It is unclear whether the city will be appealing the FOIC’s decision.
“I'm still considering my options,” Moore said. “In this matter I can only speak for myself as the intervenor.”