FIC1994-443

FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Final Decision

Michael J. Lombardo,

Complainant

against Docket #FIC 94-443

President, Eastern Connecticut State University,

Respondent October 25, 1995

The above-captioned matter was heard as a contested case on August 8, 1995, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. Patricia Thereault is hereby given intervenor status in these proceedings.

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. It is found that by letter dated November 21, 1994 the complainant requested that the respondent provide him with a copy of certain audio tapes of disciplinary hearings held by the respondent on November 3, 11 and 18, 1994, as a result of a complaint filed by the complainant against a student (hereinafter "requested records" or "tapes").

3. It is found that the respondent denied the request by letter dated November 29, 1994.

4. Having failed to receive access to the requested records the complainant, by letter dated December 21, 1994, filed this appeal with the Commission on December 27, 1994.

5. It is found that the complainant is a professor and member of the adjunct faculty at the Eastern Connecticut State University ("ECSU") since 1973.

6. It is found that the complainant filed a complaint against one of his student's at ECSU ("ECSU complaint) in accordance with ECSU regulations.

7. It is found that ECSU held hearings on the ECSU complaint on November 3, 11 and 18, 1994, following a pre-hearing determination that there was probable cause to believe there had been a violation of campus rules.

Docket #FIC 94-443 Page 2

8. It is found that pursuant to ECSU regulations the student waived her right to a closed hearing and the hearings were attended by students and ECSU personnel, including the complainant.

9. It is found that the respondent taped the hearings, and maintains such tapes which are now at issue in this case.

10. It is found that the complainant's conduct as a teacher was implicated and brought into question at the hearings.

11. Section 1-18a(b), G.S., provides that "meeting" means any hearing or other proceeding of a public agency.

12. It is concluded that the November 3, 11 and 18, 1994 hearings are meetings of a public agency within the meaning of 1-18a(b), G.S.

13. It is also concluded that the requested audio tapes are public records within the meaning of 1-18a(d) and 1-19(a), G.S.

14. The respondent and the student who is the subject of the ECSU complaint object to disclosure of the tapes to the complainant. They contend that 20 U.S.C. 1232g is a federal law which precludes disclosure. In support of this contention the respondent contends that the tapes are records of a "disciplinary action or proceeding" which it claims it is prohibited from disclosing to the complainant, without the student's consent, pursuant to 20 U.S.C.1232g. In addition, the student contends that the tapes contain comments regarding her hearing and eye sight which constitute medical information.

15. At the hearing into this matter, the complainant indicated that he is not interested in any medical information concerning the student which may be contained on the tapes.

16. 20 U.S.C. 1232g(b) provides:

(1) No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personnaly identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a) of this section) of students without the written consent of their parents to any individual, agency, or organization, other than to the following-

Docket #FIC 94-443 Page 3

(A) other school officials, including teachers within the educational institution or local educational agency, who have been determined by such agency or institution to have legitimate educational interests.

17. 20 U.S.C. 1232g(h) addresses disciplinary records and provides:

Nothing in this section shall prohibit an educational agency or institution from-

(1) including appropriate information in the education record of any student concerning disciplinary action taken against such student for conduct that posed a significant risk to the safety or well-being of that student, other students, or other members of the school community, or

(2) disclosing such information to teachers and school officials, including teachers and school officials of other schools, who have legitimate educational interests in the behaviour of the student. [Emphasis added].

18. It is found that the requirements of 20 U.S.C. 1232g are merely a precondition for federal funds and as such do not provide the basis for an exemption to public disclosure under 1-19(a), G.S.

19. 34 CFR 99.3, the implementing regulations for 20 U.S.C. 1232g defines disciplinary action or proceeding to mean the investigation, adjudication, or imposition of sanctions by an educational agency or institution with respect to an infraction or violation of the internal rules of conduct applicable to students of the agency or institution.

20. It is found that the complainant is a teacher who has legitimate educational interests in the behaviour of the student within the meaning of 20 U.S.C. 1232g(h)(2).

21. It is found that the ESCU hearings constitute "disciplinary action or proceeding" within the definition of 34 CFR 99.3, and the tapes of those hearings constitute disciplinary records within the meaning of 20 U.S.C. 1232g(h).

Docket #FIC 94-443 Page 4

22. Consequently, disclosure to the complainant is expressly provided for pursuant to the language of 20 U.S.C. 1232g(h) and 34 CFR 99.3.

23. It is therefore concluded that nothing in 20 U.S.C. 1232g precludes disclosure of the tapes to the complainant and therefore, the respondent violated 1-19(a), G.S., by failing to provide the complainant with a copy of the requested tapes.

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

1. The respondent shall immediately upon the receipt of the notice of the final decision in this matter provide the complainant with access to a copy of the requested tapes.

2. In complying with paragraph 1 of the order the respondent may delete the names and addresses of all students mentioned on the tapes as well as any medical information concerning the student who is the subject of the ECSU complaint.

Approved by Order of the Freedom of Information Commission at its regular meeting of October 25, 1995.

Elizabeth A. Leifert

Acting Clerk of the Commission

Docket #FIC 94-443 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:

Michael J. Lombardo

35 Oakwood Drive

Windham, CT 06280

President, Eastern Connecticut State University

c/o Laurie A. Deane, Esq.

Assistant Attorney General

MacKenzie Hall

110 Sherman Street