FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on March 20 and September 30, 1997, at which time the complainants and 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. It is found that by letter dated June 18, 1996, the complainants requested that the respondent superintendent provide them with a copy of "the school board’s most recent evaluation of his performance, including individual statements from board members." The June 18, 1996 letter was copied to the respondent chairwoman.

3 It is found that by letter dated June 18, 1996, the respondent superintendent informed the complainants that his evaluation had not yet been completed by the respondent board.

4. It is found that by letter dated June 20, 1996, the complainants again wrote to the respondent superintendent regarding the June 18, 1996 request. The June 20, 1996 letter was copied to the respondent chairwoman.

5. It is found that on or about July 10, 1996, the respondents made available to the complainants a copy of the respondent superintendent’s evaluation (hereinafter "summary evaluation").

6. It is found that by letter dated July 23, 1996, the complainants informed the respondents that they were still seeking the individual evaluation statements of each of the respondent board members (hereinafter "individual evaluations"), initially requested in their June 18, 1996 letter of request. The July 23, 1996 letter was copied to the respondent chairwoman.

7. It is found that by letters dated July 28 and October 2, 1996, the complainants again requested from the respondents the individual evaluations. Both the July 28 and October 2, 1996 letters were copied to the respondent chairwoman.

8. Having failed to receive the individual evaluations, the complainants by letter dated October 17, 1996 and filed with the Commission on October 24, 1996, alleged that the respondents violated the Freedom of Information Act by denying them a copy of the respondent superintendent’s evaluation.

9. It is found that it is the individual evaluations that are at issue in this case and that the summary evaluation, provided to the complainants and described in paragraph 5 of the findings, above, makes numerous references to such individual evaluations.

10. It is found that the individual evaluations constitute a part of the respondent superintendent’s evaluation.

11. It is concluded that the individual evaluations are public records within the meaning of § § 1-18a(d) and 1-19(a), G.S.

12. At the hearing on this matter, the respondents indicated that initially they did not provide the complainants with a copy of the individual evaluations because such evaluations were exempt from disclosure pursuant to § 1-19(b)(1), G.S., and that they are now willing to provide the complainants with a copy of the individual evaluations, however, they cannot be found.

13. With respect to the respondents claim of exemption pursuant to § 1-19(b)(1), G.S., the respondents failed to prove that the individual evaluations are preliminary drafts or notes within the meaning of § 1-19(b)(1), G.S.

14. Further, the respondents failed to prove that any exemption permitted them to withhold the individual evaluations from disclosure.

15. Section 1-19(a), G.S., in relevant part provides:

Each … [public] agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place ….

16. It is concluded that the individual evaluations are public records in the custody of the respondents within the meaning of § 1-19(a), G.S.

17. It is also concluded that the respondents failed to keep and maintain the individual evaluations and therefore, violated § 1-19(a), G.S.

18. Further, § 10-151c, G.S., provides an exemption for "records of teacher performance and evaluation" if a teacher does not consent. However, such provision specifically excludes from nondisclosure the evaluation records of a superintendent and provides that, "[F]or 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."

19. It is found that on February 28, 1997, the respondent superintendent vacated such position.

20. At the hearing on this matter, the respondents indicated that all of their attempts to locate a copy of the individual evaluations have been unsuccessful.

21. The Commission finds incredible and disingenuous the respondents’ testimony that they have not yet been able to locate a copy of the individual evaluations.

22. It is concluded that the respondent superintendent failed to promptly provide the complainants with a copy of the individual evaluations.

23. It is further concluded that, with respect to respondent superintendent, the violation described in paragraph 22 of the findings, above, is without reasonable grounds.

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

1. Forthwith, the respondent superintendent Charles Sweetman Jr. shall remit to this Commission a civil penalty in the amount of $750.00.

Approved by Order of the Freedom of Information Commission at its regular meeting of October 22, 1997.

_________________________
Doris V. Luetjen
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:
Rosalinda DeJesus and The Hartford Courant
c/o Bill Sweeney
373 East Main Street
Middletown, CT 06457

Superintendent of Schools, Regional School District #17;
Chairwoman, Board of Education, Regional School District #17; and
Board of Education, Regional School District #17
c/o Anne H. Littlefield
One American Row
Hartford, CT 06013-2819

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1996-543/FD/tcg/10221997