FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Elinor Halpern,
Complainant
against Docket #FIC 91-357
Alexander T. Nardone, Director of Pupil Services, West Hartford Public Schools and John J. Battles, Superintendent, West Hartford Public Schools,
Respondents November 12, 1992
The above-captioned matter was heard as a contested case on May 11, 1992, at which time the complainant and the respondents 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 and conclusions of law are reached:
1. The respondents are public agencies within the meaning of 1-18a(a), G.S.
2. During October, 1991, the complainant made a request to the respondent director of Pupil Services (hereinafter "director"), for the textbooks used by the West Hartford Public School System for the fifth grade. The complainant subsequently clarified this request to be for a list of textbooks used, rather than the actual textbooks themselves (hereinafter "October request").
3. It is found that by letter dated October 17, 1991, the respondent director indicated that access would not be provided to the requested textbook list until the complainant filed a completed authorization form with the West Hartford Public School System for home educational instruction for her son.
Docket #FIC 91-357 Page 2
4. By letter dated November 1, 1991, the complainant informed the respondent Superintendent of her October request to the respondent director, that the respondent director had denied access to the requested information and inquired as to the respondent Superintendent's position concerning her October request (hereinafter "November letter").
5. By reply letter dated November 11, 1991, the respondent Superintendent informed the complainant that the issues raised in her November letter should be raised at an upcoming special education hearing to be conducted by the State Department of Education.
6. By letter of complaint dated November 14, 1991 and filed November 15, 1991, the complainant appealed to the Commission alleging that the respondents refused to provide a copy of the requested textbook list. The complainant also asked the Commission to impose civil penalties upon the respondents.
7. It is found that at the time of the complainant's textbook list request, the State Department of Education was conducting ongoing hearings that commenced in November 1990 and continued at least through through January, 1992, for the purpose of determining an appropriate educational program for the complainant's son.
8. It is also found that at the time of the complainant's textbook list request, a court appeal was pending, which appeal concerned a previous decision rendered by a special education hearing officer.
9. It is also found that the Assistant Superintendent of the West Hartford Public Schools hand-delivered a list of fifth grade textbooks to the complainant on December 5, 1991, during the course of one of the hearings described in paragraph 7, above.
10. It is also found that the list described in paragraph 9, above, was prepared by the respondent director sometime between the complainant's November 11, 1991 appeal to this Commission and the December 5, 1991 special education hearing.
11. The respondents maintain that at the time of the complainant's request they did not have a textbook list in the form requested by the complainant; rather, the respondents assert that they only had a 1990-1991 partial list which was not updated for 1991-1992 and that therefore they had to create the list described in paragraph 9, above, for the complainant.
Docket #FIC 91-357 Page 3
12. The respondents further maintain that since the Freedom of Information (hereinafter "FOI") Act does not require an agency to create public records in response to requests from the public, they did not violate any of its provisions.
13. It is found that in addition to the partial textbook list described in paragraph 11, above, there existed handwritten lists of textbooks submitted by the teachers at Webster Hill School and that the respondent director used these lists to compile the list provided to the complainant on December 5, 1991.
14. Section 1-19(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. . .shall be public records and
every person shall have the right to. . .receive a
copy of such records in accordance with the provisions
of section 1-15. . . ."
15. Section 1-18a(d), G.S., includes handwritten information within the definition of a public record.
16. It is concluded that both the partial 1991-1992 textbook list and the handwritten lists of textbooks described in paragraphs 11 and 13, above, are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
17. It is found that the respondents did not conduct a search to ascertain whether records responsive to the complainant's request existed until sometime after the complainant filed an appeal with this Commission.
18. It is also found that the respondents could have provided the complainant with access to either the handwritten records containing the requested information or the partial list of textbooks for 1991-1992 with the understanding that they were only partially responsive to the complainant's request.
19. It is also found that rather than respond in the manner described in paragraph 18, above, the respondents never communicated to the complainant what types of records did exist that were responsive to her request.
20. It is found that although the respondents may have been concerned about the educational well-being of the complainant's son, their concerns did not obviate their
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responsibilities to fairly and reasonably respond to the complainant's request for records as required by 1-15 and 1-19(a), G.S.
21. The respondents also maintain that the complainant should not be permitted to use the process afforded in the FOI Act to circumvent the discovery process available to her through the courts and other administrative hearing processes.
22. Section 1-19b(b), G.S., provides that nothing in the FOI Act shall be deemed in any manner to affect the rights of litigants under the laws of discovery of this state.
23. It is found that the respondents failed to prove that disclosure of the requested records would affect the rights of litigants under the laws of discovery of this state within the meaning of 1-19b(b), G.S.
24. It is concluded that the respondents violated the provisions of 1-15 and 1-19(a), G.S., by failing to promptly provide the complainant with prompt access to the records containing the requested textbook list information.
26. Due to the emotional circumstances concerning this case, the Commission in its discretion declines to impose civil penalties upon the respondents.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Henceforth the respondents shall strictly comply with the provisions of 1-15 and 1-19(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of November 12, 1992.
Debra L. Rembowski
Acting Clerk of the Commission
Docket #FIC 91-357 Page 5
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:
Elinor Halpern
77 Griswold Drive
West Hartford, CT 06119
Alexander T. Nardone, Director of Pupil Services, West Hartford Public Schools and John J. Battles, Superintendent, West Hartford Public Schools
c/o Attorney Marjorie S. Wilder
West Hartford Corporation Counsel
50 South Main Street
West Hartford, CT 06107
Debra L. Rembowski
Acting Clerk of the Commission