FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Final Decision

Robert B. Veach,

Complainant(s)

against Docket #FIC1996-080

Commissioner, State of Connecticut,

Department of Administrative Services,

Respondent(s) November 13, 1996

The above-captioned matter was heard as a contested case on July 18, 1996, at which time the complainant and 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. It is found that by letter dated February 20, 1996 (“request”), in his capacity as an examinee and president of the Connecticut State Police Union, the complainant requested that the respondent provide him with specified information relating to the Connecticut State Police Sergeant examination (“test”) administered in January 1996.

3. It is found that the complainant specifically requested copies of the following:

(a) the questions for the written and oral portions of the test;

(b) the correct answer, scoring key, guidelines and criteria used to score
the oral and written responses of the examinee;

(c) any other examination data or materials pertaining to the written test
used to determine the final earned rating for the written portion of the test;




(d) his answers to the written and oral portions of the test; and

(e) his ranking or score relative to the other examinee for the written and
oral portions of the test.

4. By letter of complaint dated March 4, 1996 and filed with this Commission on March 8, 1996, the complainant appealed the respondent’s failure to comply with his request (“appeal”).

5. It is found that the records requested by the complainant are recorded data compiled for use by the respondent to determine promotions of state employees. Such records therefore relate to the conduct of the public’s business.

6. It is concluded that the requested records are public records within the meaning of §1-18a(d), G.S.

7. It is found that the written portion of the test was administered on January 13, 1996, and the oral portion of the test was administered between January 18 and January 26, 1996.

8. It is found that between January 18 and January 26, 1996, allegations were made that examinees had cheated on the oral part of the test, and an investigation of those charges led to allegations that examinees had also cheated on the written part of the test.

9. It is found that although scoring of the examination had already begun, because of the allegations of cheating the respondent made the decision not to complete the scoring process, and the test was formally cancelled on or about February 14, 1996.

10. It is found that by letter dated March 14, 1996, the respondent informed the complainant that: the records described in paragraphs 3(a), 3(b) and 3(c) of the findings, above, were exempt from disclosure under §§1-19(b)(6), G.S., and 5-225, G.S., by operation of 1-19(a), G.S.; the records described in paragraph 3(d) of the findings, above would be provided to him for his personal viewing; and with respect to paragraphs 3(c) and 3(e) of the findings, above, no final earned rating for, or ranking of the examinee was done for the test.

11. The complainant argues that the requested records are records of a promotional, rather than employment examination, and as such §1-19(b)(6), G.S., is not applicable.

12. Additionally, the complainant argues that he is entitled to a final earned rating for the test in accordance with §5-225, G.S.

13. Section 1-19(b)(6), G.S., permits a public agency to withhold from public disclosure “test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examinations ….”

14. It is found that the requested test records, as described in paragraphs 3(a), 3(b) and 3(c) of the findings, above, constitute test questions, scoring keys and other examination data used to administer an examination for employment—albeit a promotion in employment—within the meaning of §1-19(b)(6), G.S.

15. It is therefore concluded that the test records described in paragraphs 3(a), 3(b) and 3(c) of the findings, above, are permissively exempt from public disclosure pursuant to §1-19(b)(6), G.S.

16. With respect to the records described in paragraph 3(d), of the findings, above, it is found that subsequent to his request and the filing of his appeal, but prior to the hearing on this matter, the respondent allowed the complainant to view his multiple choice answer sheet for the written test, and his rating sheet containing the scores of each of the five raters who sat on the grading panel for his oral test.

17. Upon the facts of this case, it is found that although the respondent made the non-exempt test records requested by the complainant available to him, the complainant was not provided with a copy of the non-exempt records, as requested, and the records were not promptly made available to him.

18. It is concluded that the respondent violated the provisions of §§1-15(a), G.S., by failing to promptly provide the complainant with a copy of his answers to the written and oral parts of the test.

19 With respect to the complainant’s request described in paragraph 3(e) of the findings, above, §5-225, G.S., provides that:

All persons competing in any examination shall be given written
notice of their final earned ratings and, except in the case of an examination
administered in accordance with the provisions of subsection (b) of section
5-216, [where there is no closing date for the filing of applications and
recruitment is continuous], shall be given written notice of their relative
standing upon the eligible lists or their failure to attain the required minimum
passing score. The papers, markings, background profiles and other items used
in determining the final earned ratings, other than the examination questions and
other materials constituting the examination, shall be open to inspection by the
person …

20. It is found that prior to the cancellation of the test, the initial raw scores for each examinee taking the written and oral parts of the examination had been calculated, and a copy of the data was given to the state police in connection with the investigation into the allegations of cheating on the test.

21. It is found that no final earned rating or ranked list was prepared for the test; consequently, no records of a final earned rating or a ranked list exist.

22. It is found that the Commission lacks jurisdiction to require the respondent to prepare either a final earned rating for, or ranked list of examinees taking the test, under the provisions of §5-225, G.S.

23. It is concluded therefore, that the respondent did not violate the Freedom of Information Act by failing to provide the complainant with records responsive to that portion of his request described in paragraphs 3(c) and 3(e) of the findings, above, concerning a final earned rating.

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

1. Forthwith the respondent shall provide the complainant with a copy of his answers to the written and oral portions of the test, free of charge.

2. Henceforth the respondent shall strictly comply with the provisions of §§1-15(a) and 1-19(a), G.S.

Approved by Order of the Freedom of Information Commission at its special meeting of November 13, 1996.

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission

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:

Robert B. Veach

c/o Robert J. Krzys, Esq.

2138 Silas Deane Highway

Rocky Hill, CT 06067

Commissioner, State of Connecticut, Department of Administrative Services

c/o Sharon A. Scully, Esq.

Assistant Attorney General

55 Elm Street

P.O. Box 120

Hartford, CT 06141-0120

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission

FD 1996-080