FREEDOM OF INFORMATION
COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by Final Decision
Kenneth Lerman and Laura E.
Lerman,
Complainants
against Docket
#FIC 94-374
Newtown Board of Education,
Respondent October 11, 1995
The above-captioned matter was heard as a contested
case on May 23, 1995, 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 and conclusions of law are reached:
1. The
respondent is a public agency within the meaning of 1-18a(a), G.S.
2. By
letter of complaint filed October 21, 1994, the complainants appealed to the
Commission, alleging that the respondent had failed to comply with their
October 2, 1994 request for documents, and requesting the imposition of civil
penalties against the respondent.
3. It
is found that the complainants by letter dated October 2, 1994 registered a
series of complaints, concerns and questions with the respondent, interspersed
with requests for records.
4. It
is found that the complainants' ten-page letter included requests for copies of
minutes, portions of teacher observation reports, teacher recommendations,
schedules, status reports, forms, announcements, job descriptions, evaluations,
audit reports, administrative procedures, and other records.
5. It
is found that the chairman of the respondent replied by a letter dated October
3, 1994, asking for the complainants' patience.
6. It
is found that by letter dated October 26, 1994 the complainants reiterated
their request for the copies requested in their October 2, 1994 letter.
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7. It
is found that the complainants met with staff of the respondent on November 11,
1994, at which time the complainants were provided with copies of certain
records responsive to their October 2, 1994 request.
8. It
is found that the records provided to the complainants comprised more than 100
pages; that the superintendent of schools, who assumed primary responsibility
for meeting the complainants' request, was unusually busy with other
activities; that the superintendent and other employees of the respondent spent
over 60 hours compiling the records and meeting with the complainants; and that
the complainants did not communicate to the respondent an urgent need for the
requested records.
9. It
is therefore concluded under the facts of this case that the records provided
on November 1, 1994 were provided promptly, within the meaning of
1-15(a) and 1-19(a), G.S.
10. The
complainants maintain that they still have not received the following
documents:
a. For
the past two years, the portion of the written observation of each teacher in
Newtown High School limited to the the date, time, identification of the
observer, and the signatures of the observer and teacher if contained in the
form;
b. For
the past five years, the annual recommendation report for each teacher
recommended for dismissal or for rehiring with no salary increment or increase;
c. For
the previous year, any status reports showing what had been done in the area of
curriculum development;
d. The
most recent evaluation of the superintendent, including the superintendent's
self-evaluation instrument, each board member's appraisal instrument, and the
board's annual written performance report;
e. The
minutes of any meeting at which the respondent changed its policy requiring an
annual written building inspection;
f. The
most recent documents from the Newtown school principals recommending changes
in fees, the minutes of the most recent meetings at which the respondent
reviewed such changes; and the most recent schedule of fees.
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11. With
respect to the document identified in paragraph 10a, above, the respondent
maintains that such observation reports are exempt from dislosure as teacher
evaluations.
12. Section
10-151c, G.S., provides:
Any records maintained or kept on
file by any local or regional board of education which are records of teacher
performance and evaluation shall not be deemed to be public records and shall
not be subject to the provisions of section 1-19, provided that any teacher may
consent in writing to the release of his records by a board of
education.... For the purposes of this
section the term "teacher" shall include each certified professional
employee below the rank of superintendent employed by a board of education in a
position requiring a certificate issued by the state board of education.
13. It
is found that no teachers consented to the release of the observation reports.
14. It
is found, however, that the portions of the teacher observation reports
requested by the complainants, which are limited to documenting the occurrence
of the observation, and which do not document the substance of the observation,
do not contain evaluative information.
15. It
is therefore concluded that the portions of the observation reports requested
by the complainants are subject to the provisions of 1-19, G.S.,
notwithstanding 10-151c, G.S.
Ottochian v. FOIC, 221 Conn. 393 (1992).
16. It
is concluded that the portions of the observation reports requested by the
complainants are public records within the meaning of 1-18a(d) and
1-19(a), G.S.
17. Although
the respondent made no express claim of exemption pursuant to 1-19(b)(2),
G.S., it is found that disclosure of information that would document the
occurrence of teacher evaluations is of legitimate public interest, would not
be highly offensive to a reasonable person, and would therefore not constitute
an invasion of personal privacy pursuant to 1-19(b)(2), G.S.
18. It
is concluded that the respondent violated 1-15(a) and 1-19(a), G.S.,
by failing to provide copies of the limited portions of the observation reports
requested by the complainants.
19. With
respect to the documents described in paragraph 10b, above, it is found that
the respondents failed to present any evidence demonstrating that such records
contained
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evaluative information in
whole or part, or to prove that the contents of such documents are otherwise
exempt from disclosure.
20. It
is therefore concluded that the respondent violated 1-15(a) and
1-19(a), G.S., by failing to disclose the requested annual recommendation
reports.
21. With
respect to the record described in paragraph 10c, above, it is found that the
respondent provided an annotated copy of a curriculum development plan,
indicating which curriculum development goals were completed in 1993-94 and
which were moved to the following year.
22. It
is found that the record provided to the complainants is the only such status
report maintained by the respondent.
23. With
respect to the documents identified in paragraph 10d, above, the complainants
maintain that although they received the most recent evaluation of the
superintendent, they did not receive the other documents, consisting of the
superintendent's self-evaluation, and the board members' individual evaluations
of him.
24. It
is found that the respondent by letter dated November 18, 1994 indicated that
the superintendent's self-evaluation was available to the complainants at the
respondent's office.
25. With
respect to the issue of the board members' individual evaluations, the
respondent maintains that the only relevant records are the individual board
members' notes concerning the superintendent's self-evaluation, which they
brought to the appropriate meeting to discuss.
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26. It
is found that the respondent failed to prove that the individual board members'
notes, which appear to be required by the board's own policy, are exempt from
disclosure.
27. It
is therefore concluded that the respondent violated 1-15(a) and
1-19(a), G.S., by failing to provide copies of the relevant notes.
28. With
respect to the document described in paragraph 10e, above, it is concluded that
to find such minutes would require research not required by the FOI Act.
29. With
respect to the various documents described in paragraph 10f, above, the
complainants maintain that the records provided to them were not responsive to
their request, because the documents postdate the complainants' request.
30. Specifically,
the complainants argue that, at the time of their request, they wanted any
responsive documents that already existed.
31. It
is found that some of what the complainants were requesting were minutes which
would require research to find.
32. It
is also found that the records actually provided to the complainants had not
been completed at the time of the request, but were provided when completed.
33. It
is found that the records provided to the complainants were reasonably
responsive to their request.
34. The
Commission notes that the complainants are free to seek additional documents if
they need more information.
35. The
Commission in its discretion declines to impose a civil penalty against the
respondent.
The following order by the Commission is hereby
recommended on the basis of the record concerning the above-captioned
complaint:
1. The
respondents shall forthwith conduct a diligent search for the the records
described in paragraphs 10a, 10b, and 25 of the findings, above, and provide to
the complainants copies of any such records located. If the respondents are unable to locate any such records, they
shall provide to the complainants and to the Commission an affidavit that
describes in detail the steps taken to search for the records, including the
locations searched, the time spent searching, and the personnel who undertook
the search.
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Approved by Order of the
Freedom of Information Commission at its regular meeting of October 11, 1995.
Elizabeth A. Leifert
Acting
Clerk of the Commission
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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:
Mr. Kenneth Lerman
Ms. Laura E. Lerman
55 Main Street
Newtown, CT 06470
Newtown Board of Education
c/o Frederick L. Dorsey, Esq.
Siegel, O'Connor, Schiff
& Zangari, P.C.
171 Orange Street
New Haven, CT 06510
Elizabeth
A. Leifert
Acting Clerk of the Commission