FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by |
FINAL DECISION |
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Thomas E. Lee, |
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Complainant |
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against |
Docket #FIC 2000-135 |
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Board of Education,
Trumbull Public |
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Respondents |
November 29, 2000 |
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The above-captioned matter was heard as a contested case on May 19, 2000, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. For purposes of hearing, contested case docket # FIC 2000-136 Thomas E. Lee v. Board of Education, Trumbull Public Schools; and Superintendent of Schools, Trumbull Public Schools was consolidated with the above-captioned matter.
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 §1-200(1), G.S.
2. By letter of complaint dated
March 9, 2000 and filed on March 14, 2000, the complainant appealed to the
commission alleging that the respondents violated the Freedom of Information (“FOI”)
Act by denying him copies of records concerning expulsions from Trumbull High
School.
3. The Commission takes
administrative notice of the findings and decision in contested case docket #
FIC 2000-133, Thomas E. Lee v. Board of Education, Trumbull Public
Schools (hereinafter “FIC
2000-133”).
4. In FIC 2000-133, the
Commission found in findings 5 and 6, that:
5. It is found that pursuant to §§10-233d(a) and 10-233d(b), G.S., the respondent established an impartial hearing board consisting of one person (hereinafter “board”), which board held a student expulsion hearing on February 24 and March 6, 2000 (hereinafter “hearing”). It is found that the board exercised complete authority and control over the conduct of the hearing and the issue of expulsion, matters that would ordinarily be decided by the respondent pursuant to §10-233d, G.S….
6. It is also found that the hearing was not open to the public, however, the board permitted the complainant to attend the [February 24 and March 6, 2000] hearing in his capacity as counsel to a student. [Emphasis added.]
5. It is found that during the
March 6, 2000 hearing, referred to in FIC 2000-133, and described in paragraph
4, above, the complainant presented a written records request dated March 6,
2000, to the respondents’ counsel. It
is that March 6, 2000 records request that is at issue in this case.
The March 6, 2000 request was for a copy of the following:
i)
all letters delivered to the
respondent board recommending disciplinary action of expulsion of students at
Trumbull High School a) for
violations of a publicized policy of the respondent board, b) for endangering
persons or property and/or c) for a serious disruption of the educational
environment for the academic school years from 1996 to 2000;
ii)
all notices to students and/or parents
recommending the disciplinary action of expulsion of students at Trumbull High
School for the reasons cited in 5i) above, for the academic years 1996 to
2000; and
iii)
all notices of the respondent board’s
disciplinary decisions in cases concerning expulsions pertaining to 5i) above,
for the academic year 1996 to 2000.
(hereinafter “requested records”).
The complainant indicated in the request that he consented to the redaction of
names, addresses, any information that would personally identify a student,
and all material that is non-disclosable pursuant to the Family Educational
Rights and Privacy Act 20 USC 1232g and §1-210(b)(11), G.S.
6. Section 1-210(a), G.S.,
provides, in relevant part:
Except 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.,
further 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 the
respondents maintain or keep on file notices and hearing officer decisions,
which are responsive to the complainant’s records request, as described in
paragraph 5ii) and 5iii), above. It
is also found that the respondents may have memoranda or other documentation
from administrators recommending expulsion, which memoranda/ documentation
would be responsive to the complainant’s request as described in paragraph
5i), above.
9. It is found that the notices,
hearing officer decisions and memoranda/ documentation from administrators,
described in paragraph 8, above, are the records at issue in this case.
It is concluded that all such records, to the extent they exist, and
are maintained in the respondents’ files, are public records within the
meaning of §1-210(a), G.S.
10. The respondents contend that all of the records at issue are exempt from disclosure pursuant to §§1-210(b)(2), (10), (11) and (17), G.S.
11. The respondents submitted certain records at issue for an in camera review. The records submitted for in camera review pertain to the year 2000, however the complainant’s request is for records spanning the academic school years from 1996 to 2000. The respondents indicated at the hearing in this matter that records similar to the ones submitted for in camera review would exist for the period 1996 through 2000.
12. For identification purposes, the in camera records have been designated IC2000-128/135/136-1 through IC2000-128/135/136-6; IC2000-129/135/136-1 through IC2000-129/135/136-27; IC2000-130/135/136-1 through IC2000-130/135/136-30; IC2000-131/135/136-1 through IC2000-131/135/136-36; IC2000-132/135/136-1 through IC2000-132/135/136-29; IC2000-133/135/136-1 through IC2000-133/135/136-42; and IC2000-134/135/136-1 through IC2000-134/135/136-38.
13. It is found that the in camera records consist of notices of expulsion hearings sent to students and parents, cover letters accompanying decisions of the expulsion hearing board, decisions of the hearing board, hearing exhibits, notices of suspension and detention, principal’s incident report, principal’s summary of investigation, student complaint/statement filed with police department, teacher verification of distribution of student handbook, student handbook acknowledgement, student report cards, student transcript, attendance reports, student enrollment list and discipline referrals.
14. Section 1-210(b)(11), G.S., permits the nondisclosure of: “[N]ames 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….”
15. Section 1-210(b)(17), G.S., further permits the nondisclosure of “[E]ducational records which are not subject to disclosure under the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g.”
16. “Educational records” are defined at 20 U.S.C. §1232g(a)(4)(A) as those records, files, documents, and other materials which (i) contain information directly related to a student and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.
17. This Commission has concluded that 20 U.S.C. §1232g prohibits public schools that receive federal funding from disclosing information concerning a student that would personally identify that student, without the appropriate consent. See contested case docket #FIC 1999-306, Brenda Ivory v. Vice-Principal, Griswold High School, Griswold Public Schools; and Griswold Public Schools (Final Decision dated January 26, 2000).
18. It is found that the in camera records constitute “educational records” within the meaning of 20 U.S.C. §1232g(a)(4)(A) because they (i) contain information directly related to a student and (ii) are maintained by an educational agency or institution.
19. It is also found that the in camera records contain information about students, that is unique and very specific to only a few students. In addition, such information is inextricably tied to a particular event. It is therefore found that whereas redaction of some of the in camera records is possible to ensure that personally identifiable information about students is protected, redaction of others would not ensure such protection.
20. It is found that the notices of expulsion hearings sent to students and parents, and the cover letters accompanying decisions of the expulsion hearing board can be redacted to remove personally identifiable information about students. However, it is found that even with extensive redaction, disclosure of the remaining in camera records would not ensure that personally identifiable information about students would be protected, and consequently, such remaining records are permissively exempt from public disclosure pursuant to 20 U.S.C. §1232g(a)(4)(A) and §1-210(b)(11) and §1-210(b)(17), G.S. It is also found that to the extent that any existing memoranda/ documentation from administrators recommending expulsion contains information about students that is unique and very specific to a student or students, and could lead to personally identifying such students, then such memoranda / documentation are also are permissively exempt from public disclosure pursuant to 20 U.S.C. §1232g(a)(4)(A) and §1-210(b)(11) and §1-210(b)(17).
21. With respect to the respondents’ claim of exemption pursuant to §1-210(b)(2), G.S., such provision permits the nondisclosure of “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.”
22. The Supreme Court set forth the test for the §1-210(b)(2), G.S., exemption in Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993). Specifically, the claimant must first establish that the files in question are personnel, medical or similar files. Second, the claimant must show that disclosure of the records would constitute an invasion of personal privacy. In determining whether disclosure would constitute an invasion of personal privacy, the claimant must establish both of two elements: first, that the information sought does not pertain to legitimate matters of public concern, and second, that such information is highly offensive to a reasonable person.
23. It is found that the notices, cover letters and any existing memoranda/documentation from administrators are not “personnel or medical files and similar files”, within the meaning of §1-210(b)(2), G.S.
24. However, even if the notices,
cover letters and any existing memoranda/ documentation from administrators
could be considered “personnel or medical files and similar files”, it is
found that the information contained therein pertains to legitimate matters of
public concern. It is also found
that disclosure of such records, in redacted form, would not be highly
offensive to a reasonable person.
25. Consequently, it is concluded that disclosure of the notices, cover letters and any existing memoranda/ documentation from administrators in redacted form, would not constitute an invasion of privacy within the meaning of §1-210(b)(2), G.S., and Perkins, and therefore such records are not exempt from disclosure pursuant to §1-210(b)(2), G.S.
26. With respect to the respondents’ claim of exemption
pursuant to §1-210(b)(10), G.S., such provision permits the nondisclosure of
“[R]ecords, tax returns, reports and statements exempted by federal law or
state statutes …”
27. In light of the foregoing, it has already been concluded that with the exception of the redacted notices, cover letters and any existing memoranda, the in camera records are exempt from disclosure pursuant to “federal law” [20 U.S.C. §1232g(a)(4)(A)] and “state statutes” [§1-210(b)(11) and §1-210(b)(17), G.S.], within the meaning of §1-210(10), G.S.
28. Finally, it is also concluded
that the respondents reasonably did not initially treat the records request at
issue in this case, as a request made pursuant to the FOI Act because i) the
request, on its face, is made pursuant to §10-233d, G.S., and not pursuant to
the FOI Act, ii) the request was made by the complainant in his capacity as
counsel to a student, during the course of, and in the context of the March 6,
2000 expulsion hearing when he handed it to counsel for the respondents, and
iii) the request was essentially for the same records previously subpoenaed by
the complainant during the expulsion hearing, and which subpoena was quashed
by the expulsion hearing board.
29. It
is therefore concluded that the respondents did not violate §1-210(a), G.S.,
when they failed to respond to the complainant’s request in accordance with
the requirements of the FOI Act.
30. However, it is also concluded
that if treated as a request made pursuant to the FOI Act, the complainant is
entitled to redacted copies of the notices, cover letters and any existing
memoranda/ documentation that can be disclosed without divulging personally
identifiable information about students.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.
1. The respondents shall forthwith provide the complainant with:
a) a redacted copy of the notices and cover letters submitted for in camera inspection;
b) a redacted copy of all other existing notices and cover letters for the academic school years from 1996 through 2000; and
c) a redacted copy of all existing memoranda or other documentation from administrators recommending expulsion, for the academic school years from 1996 through 2000.
In complying with this order the respondents may redact all personally identifiable information about students from the notices, cover letters and memoranda/ documentation.
Approved by Order of the Freedom of Information Commission at its special meeting of November 29, 2000.
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Ann B. Gimmartino
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:
Thomas E. Lee, Esq.
765 Post Road
Fairfield, CT 06430
Board of Education
Trumbull Public Schools; and
Superintendent of Schools,
Trumbull Public Schools
c/o Dean R. Singewald II, Esq.
Berchem, Moses & Devlin, PC
75 Broad Street
Milford, CT 06460
___________________________________
Ann B. Gimmartino
Acting Clerk of the Commission