FIC1998-215

FREEDOM OF INFORMATION COMMISSION OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by			FINAL DECISION
Juan Arriola,
		Complainants
	against		Docket #FIC 1998-215
Windham Board of Education, Windham Public Schools,
		Respondent	June 9, 1999

The above-captioned matter was heard as a contested case on September 22, 1998, and December 1, 1998, at which time the complainant and the respondent appeared, and presented testimony, exhibits and argument on the complaint. For purposes of hearing, this case was consolidated with the following dockets #s: FIC1998-219, Juan Arriola v. Patrick Proctor, Superintendent of Schools, Windham Public School; Dan Switchenko, John Adamo, Manual Diaz, Mark Doyle, Susan Collins, Paulette Haines, Paula Haney, Lynne Weeks, and Ben Vreeland as members of the Board of Education, Windham Public Schools; and Board of Education, Windham Public Schools; FIC1998-229, Juan Arriola v. Patrick Proctor, Superintendent of Schools, Windham Public Schools; Dan Switchenko, John Adamo, Manual Diaz, Mark Doyle, Susan Collins, Paulette Haines, Paula Haney, Lynne Weeks, and Ben Vreeland as members of the Board of Education, Windham Public Schools; and Board of Education, Windham Public Schools; FIC1998-300, Juan Arriola v. Susan M. Collins, Chairman, Board of Education, Windham Public Schools; Dan Switchenko, John Adamo, Manuel Diaz, Jr., Mark Doyle, Paulette N. Haines, Paula Haney, Lynne P. Weeks, and Benjamin S. Vreeland as members of the Board of Education, Windham Public Schools; and Board of Education, Windham Public Schools.

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 §1-200(1), G.S. [formerly §1-18a(1), G.S.].

2. By letter dated June 22, 1998, the complainant made a request to the respondent board for a copy of the questions asked during interviews conducted during an investigation of a sexual harassment complaint filed against the complainant and copies of all materials, correspondence, letters, memos, documents, transcripts, notes and similar

files which constitute responses to said questions and which formed the basis of the findings in the aforementioned investigation which resulted in the contract of Juan Arriola not being renewed.

3. By reply letter dated June 29, 1998, the respondent’s counsel reminded the complainant that he had been given access to all existing records concerning his employment with the Windham Public Schools during a meeting with the respondents’ counsel on May 18, 1998. The respondent’s counsel further stated in the June 29, 1998 reply letter that no other records responsive to the complaint’s request exist.

4. By letter to the respondents dated June 30, 1998, the complainant reiterated the request described in paragraph 2, above, and challenged the respondent’s representation that no other records responsive to his request exist.

5. By letter dated July 19, 1998 and filed on July 22, 1998, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to respond to his June 22, 1998 records request and to provide him with the records requested. The complainant also requested the imposition of a civil penalty against the respondent.

6. Section 1-210(a), G.S. [formerly §1-19(a), G.S.], provides in relevant part that:

[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212.

7. Section 1-212(a), G.S. [formerly §1-15(a), G.S.], provides in relevant part that:

[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.

8. It is found that to the extent records exist that are responsive to the complainant’s request, such records are public records within the meaning of §1-210(a), G.S. [formerly §1-19(a), G.S.].

9. It is found that by letter dated July 22, 1998, the respondent’s counsel replied to the complainant’s June 30, 1998 request in the same manner as described in paragraph 3, above. The respondent’s counsel also cautioned the complainant regarding the FOI Act’s provisions concerning the filing of frivolous appeals, without reasonable grounds and for the sole purpose of harassing the agency.

10. It is found that the complainant has made numerous requests to the respondent for either the same or very similar records as those requested on June 22 and June 30, 1998.

11. It is found that on May 18, 1998, the complainant, pursuant to a previous records request, met with the respondents’ counsel at his office and inspected all records pertaining to his employment with the Windham Public Schools including those pertaining to a sexual harassment complaint filed against him and the investigation of such complaint.

12. It is found that the complainant has inspected and received all records responsive to his request described in paragraph 2, above, and that no other records responsive to that request exist.

13. It is therefore concluded that the respondents did not violate the provisions of §1-210(a), G.S., under the facts and circumstances of this case. Therefore, the imposition of a civil penalty against the respondents is not appropriate in this case.

14. At the hearing in this matter, the respondents requested that the Commission impose a civil penalty against the complainant on the grounds that the complainant has taken this appeal frivolously, without reasonable grounds and solely for the purpose of harassing the respondent.

15. Section 1-206(b)(2), G.S. [formerly §1-21i(b)(2), G.S.], provides in relevant part that:

[i]f the commission finds that a person has taken an appeal . . . frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken, after such person has been given an opportunity to be heard at a hearing . . . the commission may, in its discretion, impose against that person a civil penalty of not less than twenty dollars nor more than one thousand dollars . . . .

16. It is found that the parties to this matter are involved in a protracted and highly contentious employment dispute, during which the respondent board decided not to renew the complainant’s teaching contract and the superintendent of the Windham Public Schools has received much correspondence from the complainant which he considered to insulting and/or threatening and is also the target of a campaign, allegedly led by the complainant, to remove him from office.

17. It is further found that despite the highly contentious relationship between the parties, as described in paragraph 16, above, the respondents have gone to great lengths to comply with numerous records requests made by the complainant, including repeated requests for records that had already been provided to him.

18. Further, the Commission takes administrative notice of docket #FIC1997-286 Juan Arriola v. Patrick Proctor, Superintendent of Schools, Windham Public Schools; Susan M. Collins, Chairman, Board of Education, Town of Windham; Dolores Ackley; Mark W. Doyle; Paulette N. Haines; Paula M. Haney; Manuel A. Diaz, Jr.; Leslie A. Johnson-O’Brien; Benjamin S. Vreeland; and Lynne P. Weeks, as members, Board of Education, Town of Windham; and Board of Education, Town of Windham, wherein the Commission dismissed the complaint based upon findings that the respondents had complied with all of the complainant’s prior records requests and that the records requested in #FIC1997-286 had always been available for the complainant’s inspection during regular business hours.

17. It is further found that the complainant’s June 22, and June 30, 1998 requests fall within the ambit of his records request in docket #FIC 1997-286.

18. It is further found that nothing in the record of this case would support a reasonable belief on the complainant’s behalf that he had not inspected all non-exempt records related to his employment with the Windham Public Schools or the sexual harassment complaint filed against him and the investigation of such complaint.

19. It is therefore found that the appeal in this matter was taken without reasonable grounds.

20. However, the Commission can not find that the complainant’s appeal was taken frivolously and solely for the purpose of harassing the respondents within the meaning of §1-206(b)(2), G.S., [formerly§1-21i(b)(2), G.S.], given the seriousness of the employment dispute described in paragraph 16, above, and that his records requests and subsequent appeals have been made in connection with that dispute.

21. Therefore, based upon the finding in paragraph 22, above, the imposition of a civil penalty against the complainant is not appropriate in this case.

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

1. The complaint is hereby dismissed.

2. The Commission notes the complainant’s representation at the hearing on this matter that he would not file any other FOI complaints against the above-captioned respondent pertaining to records generated in connection with the sexual harassment complaint filed against him or the investigation which followed.

Approved by Order of the Freedom of Information Commission at its regular meeting of

June 9, 1999.

_________________________

Melanie R. Balfour

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:

Juan Arriola

PO Box 218

Windham, CT 06280

Windham Board of Education,

Windham Public Schools

c/o Atty. Thomas B. Mooney

and Atty. Kimberly A. Mango

Shipman & Goodwin, LLP

One American Row

Hartford, CT 06103-2819

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

FIC1998-215FD/mrb/06111999