FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Dick Conrad and New Haven Register,

Complainants

against Docket #FIC 87-317

Superintendent of Schools of the City of New Haven,

Respondent May 11, 1988

The above-captioned matter was heard as a contested case on March 1, 1988, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

After consideration of the entire record, the following facts are found:

1. The respondent is a public agency within the meaning of §1-18a(a), G.S.

2. On January 23, 1987 the complainant newspaper, through one of its reporters, made a request of the respondent for the opportunity to review "all public documents coming in or going out of your office regarding citizens, other city departments or state departments."

3. On or about March 2, 1987 the complainants filed a complaint with the Commission concerning the respondent's response to the January 23, 1987 request, which complaint was docketed as #FIC 87-59.

4. In settlement of the complaint in #FIC 87-59 the respondent agreed to provide the complainant newspaper with access to the requested documents. Pursuant to such agreement one of the respondent newspaper's reporters, Kim Hirsh, reviews correspondence at the respondent's office every 10 days to 2 weeks.

5. In October, 1987, while reviewing a packet of information prepared for members of the New Haven board of education, Ms. Hirsh came across certain letters that had not been made available to her when reviewing the respondent's correspondence.

Docket #FIC 87-317 Page Two

6. By letter of complaint filed with the Commission on October 30, 1987 the complainants alleged that in abrogation of the agreement reached in settlement of #FIC 87-59, the respondent had withheld from Ms. Hirsh certain pieces of correspondence. The complainants made specific reference to a series of letters to and from the Connecticut Civil Liberties Union Foundation ("CCLU Foundation") and the New Haven Department of Health.

7. At hearing, the respondent moved to dismiss the complaint on the ground that it failed to state the date of the alleged denial of access to records, which motion was denied.

8. It is found that at least two documents were not produced by the respondent for inspection by Ms. Hirsh, one, an October 13, 1987 letter to the respondent from Shelley Geballe, a staff attorney for the CCLU Foundation and the other, an October 21, 1987 letter to Ms. Geballe from the respondent.

9. It is found that the complaint was filed within 30 days of the alleged denial of access to the October 13, 1987 and October 21, 1987 letters and was, therefore, filed in a timely manner within the meaning of §1-21i(b), G.S.

10. At hearing the complainants stated that the letters from the New Haven department of health, referred to in their complaint, related to smoking in school by teachers. No evidence was presented concerning either the dates of the letters or the date of the alleged denial of access. Such letters, therefore, will not be considered in this report.

11. The respondent did not claim that either of the letters referred to at paragraph 8, above, was exempt from disclosure. Rather, the respondent claims that the October 21, 1987 response to Ms. Geballe was not available for Ms. Hirsh's review because it was inadvertently omitted from his correspondence file by a member of his staff. The respondent did not account for the unavailability of the October 13, 1987 letter from Ms. Geballe.

12. The respondent stated, however, that where a record contained information which he felt was not subject to mandatory disclosure he withheld the record in its entirety, rather than releasing the document with deletions.

13. It is found that the exclusion from the respondent's correspondence file of the letters referred to at paragraph 8, above, amounted to a denial of the complainants' request to inspect such correspondence, in violation of §§1-15 and 1-19(a), G.S.

Docket #FIC 87-317 Page Three

14. It is noted that the respondent's policy of denying access to records, portions of which may be exempt from disclosure, denies the complainants access to the non-exempt portions of such records, in violation of §§1-15 and 1-19(a), G.S.

15. Because the Commission lacks suffient evidence upon which to base a finding that any records were so denied during the 30 days prior to the filing of the complainants' complaint, the Commission declines to issue an order concerning such policy.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.

1. The respondent henceforth shall act in strict compliance with the requirements of §§1-15 and 1-19(a), G.S. concerning prompt access to public records.

Approved by order of the Freedom of Information Commission at its regular meeting of May 11, 1988.

Catherine H. Lynch

Acting Clerk of the Commission