FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

 

In the Matter of a Complaint by                                                FINAL DECISION

 

Michael Soriero,

 

            Complainant

 

            against                                                                          Docket #FIC 1997-095  

 

Superintendent of Schools,

Sterling Public Schools,

 

            Respondent                                                                  January 28, 1998

 

 

            The above-captioned matter was heard as a contested case on October 30, 1997, at which time the complainant 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(1), G.S. (prior to October 1, 1997, §1-18a(a), G.S.).

 

            2.   By letter dated February 12, 1997, the complainant requested that the respondent provide him with copies of the following records regarding a hearing involving the complainant’s daughter:

 

a)   all witness statements;

 

b)     a list of witnesses which the respondent planned to call at the hearing and a summary of expected testimony;

c)     documentation related to sexual harassment complaints against other students and to incidents involving inappropriate remarks or gestures of students, with students’ names redacted;

d)     whether the respondent planned on having a court reporter present at the planned hearing;

e)     all invoices from attorneys for the Sterling Board of Education from January 1, 1987 to February 12, 1997.

 

            3.   By letter dated February 27, 1997 and filed on March 3, 1997, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying him copies of the requested records.    

 

4.   Section 1-19(a), G.S., in relevant part states:

 

[e]xcept 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 inspect such records promptly or to receive a copy of such records in accordance with the provisions of section 1-15….

 

5.   It is found that the requested records are public records within the meaning of §§1-18a(5) (prior to October 1, 1997, §1-18a(d)) and 1-19(a), G.S.

 

6.     It is found that the respondent superintendent at the time of the complainant’s request did not provide the complainant with the requested records.  It is further found that the current superintendent was appointed to such office on August 28, 1997. 

7.     It is found that the notice of the rescheduled hearing in this matter was sent by certified mail to the parties on October 10, 1997.  It is further found that the current superintendent’s receipt of such notice was his first notification of the instant complaint and underlying request, and that the current superintendent exerted due diligence in investigating his office’s response in this matter.

8.   With respect to the requests set forth in subparagraphs (b) and (d) of paragraph 2, above, the respondent contends that there are no records responsive to such requests.  It is therefore concluded that the respondent did not violate the provisions of §1-19(a), G.S. by failing to provide such records.

9.   With respect to the request in subparagraph (a) of paragraph 2, above, the respondent has identified three witness statements which he is prepared to release to the complainant.  The respondent contends that such statements had been sent to the complainant’s former attorney on January 30, 1997, prior to the request which is the subject of this contested case.  It is found, however, that the complainant did not receive such statements and that the respondent was obliged under the FOI Act to respond to the complainant’s subsequent February 12, 1997 request.  Accordingly, it is concluded that the respondent violated the provisions of §1-19(a), G.S., by failing to provide such statements in response to complainant’s February 12, 1997, request. 

 

10.   With respect to the request in subparagraph (c) of paragraph 2, above, the respondent has identified three responsive sets of documents, which he contends are exempt from disclosure by virtue of §1-19(b)(10), G.S., and the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. §1232g. 

11.   Section 1-19(b)(10), G.S., provides that an agency need not disclose “records, tax returns, reports and statements exempted by federal law or state statutes….”

12.   It is found that at all times material to this complaint FERPA sets a condition precedent to the granting of funds but does not mandate that records be withheld from disclosure.  Accordingly, §1-19(b)(10), G.S., and FERPA do not preclude disclosure of the three sets of documents responsive to the request more fully described in subparagraph (c) of paragraph 2, above. 

13.   Section 1-19(b)(11), G.S. , in relevant part, provides that:

 

[n]othing in the [FOI] Act…shall be construed to require disclosure of [the] names or addresses of students enrolled in any public school or college without the consent of each student whose name or address is to be disclosed who is eighteen years of age or older and a parent or guardian of each such student who is younger than eighteen years of age…

            14.   It is found that the complainant consents to the redaction of student identities.

15.   The respondent contends that, because Sterling is a very small school district, consisting of approximately 300 students, mere redaction of the names of the students would not ensure that their identities would be protected. 

16.   It is concluded that §1-19(b)(11), G.S., provides a basis to exempt from disclosure the student names, and other details which would identify students, from the records more specifically described in paragraph 10, above.

17.   It is further found, however, that the remainder of the records more fully described in paragraph 10, above, are not exempt from disclosure by virtue of §1-19(b)(11), G.S.  Therefore, it is concluded that the respondent violated the provisions of §1-19(a), G.S., by failing to provide the complainant with copies of such non-exempt records.

18.   With respect to the request in subparagraph (e) of paragraph 2, above, the respondent contends that portions of such records are exempt from disclosure by virtue of the attorney-client privilege.

19.   Section that §1-19(b)(10), G.S., in relevant part, permits the nondisclosure of “…communications privileged by the attorney-client relationship.”

20.   The exemption for attorney-client privileged communications contained in §1-19(b)(10), G.S., is limited to the following circumstances in accordance with established Connecticut law:

 

                   Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection may be waived.

 

Lafaive v. DiLoreto, 2 Conn. App. 58, 65 cert. denied, 194 Conn. 801 (1984).

 

            21.  The attorney-client privilege protects communications between client and attorney, when made in confidence for the purpose of seeking or giving legal advice.  Ullmann v. State, 230 Conn. 698, 711 (1994).  It is strictly construed because it “tends to prevent a full disclosure of the truth….” Id. at 710.

22.   It is found that the respondent did not prove that the requested invoices, or portions thereof, consisted of attorney-client privileged communications.  New Haven v. Freedom of Information Commission, 205 Conn. 767, 778 (1988).  Therefore, it is concluded that the respondent violated the provisions of §1-19(a), G.S., by failing to provide the complainant with copies of such non-exempt records.

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

 

1.  The respondent shall forthwith provide the complainant with copies of the requested records, more fully described in subparagraphs (a), (c), and (e) of paragraph 2 of the findings, above.

 

2.  In complying with paragraph 1 of this order, the respondent may redact those portions of the requested records more fully described in paragraph 16 of the findings, above, and portions of the requested attorney invoices which would reveal client confidences, as described in paragraphs 19 through 21 of the findings, above.

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

 

                Approved by Order of the Freedom of Information Commission at its regular meeting of January 28, 1998.

 

 

 

 

 

_________________________

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:

 

Michael Soriero

242 Harris Road

Sterling, CT 06377

 

 

Superintendent of Schools, Sterling Public Schools

c/o Michelle C. Laubin

75 Broad Street

Milford, CT 06460

 

 

Gregory B. Ladewski

75 Broad Street

Milford, CT 06460

 

 

 

 

__________________________

Doris V. Luetjen

Acting Clerk of the Commission

 

 

 

 

 

 

FIC1997-095/FD/tcg/01281998