MERIDEN — The city violated open records laws by failing to release a letter of discipline issued to the city attorney, according to a hearing officer’s report to the Freedom of Information Commission.
The commission is expected to issue a final ruling on the matter in December.
The disciplinary letter dated May 22 was issued to City Attorney Deborah Moore after she forwarded an email from City Manager Guy Scaife and Human Resources Director Marci Nogueira regarding the decision to deny a former staff attorney an extension of leave. The email 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.
The Record-Journal requested Moore’s disciplinary letter July 5 and filed a complaint with the FOIC July 24. Moore provided a redacted version of letter to the Record-Journal on Oct. 2, one day before a hearing was scheduled. Redactions included the name of the employee denied leave.
Moore, Attorney John Gorman and Human Resources Director Marci Nogueira attended the hearing, arguing the letter was exempt from disclosure because it failed the Perkins Test, contained an employee’s personal health information and was “in draft” form.
Hearing officer Lisa Siegel rejected these arguments, detailing her findings in a six-page report.
Siegel disagreed with the city’s claim the redacted information was exempt under the Health Insurance Portability and Accountability Act.
“It is found that the redacted information claimed to be exempt pursuant to HIPAA merely identifies an employee— who is not the intervenor Moore — but contains no information about such employee’s health. It is found that the redacted information does not even reference the employee’s health or medical circumstances,” Siegel writes, concluding such information is not prohibited from disclosure by HIPAA.
Siegel goes on to state the redactions do not pass the Perkins Test, which requires information be “highly offensive to a reasonable person.” Siegel states information in the letter is a legitimate matter of public concern and that disclosure would not be considered highly offensive.
Moore also claimed the disciplinary letter was in “draft” because her discipline was under review. Siegel also rejected this arguement.
“It is found that neither the respondents nor the intervenor presented any evidence as to whether the public agency determined that the public interest in withholding the letter of discipline clearly outweighs the public interest in disclosure,” Siegel writes. “It is also found that neither the letter of discipline, nor Moore’s response, were preliminary. It is found that simply because the respondents may be reconsidering the discipline imposed does not transform the requested records into preliminary drafts.”
Siegel concludes the city failed to prove the letter was exempt from disclosure.
“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 writes.
Siegel recommended the Commission require the city provide an unredacted copy of the letter to the Record-Journal free of charge and strictly comply with open records laws moving forward.
The decision was received by the Record-Journal Friday afternoon. City offices were closed and Moore stated she had not yet seen a copy of the report, but noted in an email that “the proposed decision doesn't' become final until it is considered and voted upon by the full FOIA commission.”
The FOIC will take up the matter Dec. 13.