FIC2000-624

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Theodore Piwon
		Complainants
	against		Docket #FIC 2000-624
Board of Education, Brookfield Public Schools,
		Respondents	June 13, 2001

The above-captioned matter was heard as a contested case on December 15, 2000, at which time the complainant and the respondent appeared 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 §1-200(1), G.S.

2. It is found that on or about October 19, 2000 the complainant submitted a letter to the respondent requesting to inspect and receive copies of the following:

a. “all records, including suspension or expulsion letters, of any instances in the school years of 1994-1995 and 1995 –1996 where a student brought a knife or dangerous instrument to any school in Brookfield (student names may be redacted);

b. copy of all hit lists, cartoon drawings or documents which lists Jimmy Gustavson’s name or initials drawn by any student which depicts Jimmy Gustavson or any other student dying or being injured (names may be redacted except Jimmy Gustavson or his initials [J.G.]);

c. copy of all notes taken by administrators and staff on May 4^th, 1999 of interviews with children concerning a hit list incident with students’ names and initials redacted except Jimmy Gustavson’s or his initials (J.G.);

d. the complete personnel file of Malinda Murchie including, but not limited to, application files, payroll files, grievance files, all performance evaluations, complaints from parents or others, transfer notices, termination letters, written warnings and college degrees; and

e. the complete personnel file of Richard Belleshelm to include the same information as in request #4.”

3. By letter dated November 8, 2000 the respondent informed the complainant that:

a. with respect to the records requested in 2a, above, the additional information concerning these documents was sent to him in a letter dated November 8, 2000;

b. with respect to the records requested in paragraph 2b and 2c, above, all or part of these documents are contained in an individual student’s file and therefore is unavailable without the permission of the student’s parents or guardians.

c. with respect to the records requested in paragraph 2d, above, Mrs. Murchie and the Brookfield Administrator’s Association have objected to any contents of her personnel file being released for public examination. However, a selection of documents from her file that are not protected by statute and/or privacy rights would be available for examination.

d. with respect to the records requested in paragraph 2e, above, Mr. Belleshelm and the Brookfield Administrator’s Association have objected to any contents of his personnel file being released for public examination. However, a selection of documents from the file that are not protected by statute and/or privacy rights would be available for examination.

4. By letter dated and filed on November 17, 2000 the complainant, through counsel, appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to completely respond to his request.

5. Section 1-210(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 receive a copy of such records in accordance with the provisions of section 1-212. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.

6. Section 1-212(a), G.S., provides in relevant part that “any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

7. It is found that the requested records are public records within the meaning of §1-210(a), G.S.

8. With respect to the complainant’s request described in paragraph 2a, above, it is found that pursuant to the respondent’s approved retention schedule for such records, the respondent disposed of any official records that would be responsive to the complainant’s request as it related to grade and middle school students.

9. It is further found that the respondent misinterpreted the request described in paragraph 2a, above, and accordingly failed to search high school files for such records.

10. With respect to the records described in paragraph 2b, above, the respondent submitted the subject records to the Commission for in-camera inspection, which records have been identified as in-camera records #s 2000-624-018B and 2000-624-019B.

11. The respondent contends that §1-210(b)(17), G.S., exempts the records from mandatory disclosure because the records are educational records and disclosure of such records would personally identify a student or students.

12. Section 1-210(b), G.S., provides in relevant part that nothing in the FOI Act shall be construed to require disclosure of:

(11) [na]mes or addresses of students enrolled in any public school or college without the consent of . . . a parent or guardian of each such student who is younger than eighteen years of age . . . ;

and

(17) [e]ducational records which are not subject to disclosure under the Family Educational Rights and Privacy Act, 20 USC 1232g . . . .”

13. It is found that the Family Educational Rights and Privacy Act, 20 USC §1232g(b)(2)(A), provides that:

no funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of releasing, or providing access to, any personally identifiable information in education records other than directory information, or as is permitted under paragraph (1) of this subsection unless – (A) there is written consent from the student’s parents specifying records to be released, the reasons for such release, and to whom, and with a copy of the records to be released to the student’s parents . . . .

14. At the hearing on this matter, the complainant consented to the redaction of the names of the students and contends that the records are not exempt from mandatory disclosure once the names of the students are redacted from the records.

15. It is found, after a careful review of the records submitted in-camera, that disclosure of the records described in paragraph 10, above, would not disclose the names or addresses of students nor would disclosure of the records personally identify students, if the names and initials are redacted.

16. It is therefore concluded that the respondent violated the disclosure provisions of §1-210(a), G.S., by failing to provide the complainant with a copy of the in-camera records described in paragraph 10, above, with the names and initials of students redacted.

17. At the hearing on this matter, the complainant withdrew his complainant with respect to the records described in paragraph 2c, above.

18. With respect to the complainant’s request described in paragraph 2d and 2e, above, the respondent submitted the subject records to the Commission for in-camera inspection which records have been identified as in-camera records #s 2000-624-001A through 2000-624-256A and 2000-624-001B through 2000-624-017B, respectively.

19. The respondent contends that the records are exempt from disclosure pursuant to §10-151c, G.S., and §1-210(b)(2), G.S.

20. Section 1-210(b)(2), G.S., permits the nondisclosure of personnel, medical or similar files the disclosure of which would constitute an invasion of personal privacy.

21. Section 10-151c, G.S., provides, in relevant part that:

any records maintained or kept on file by any local or regional board of education which are records of teacher performance and evaluation shall not be deemed public records and shall not be subject to the provisions of §1-210, provided that any teacher may consent in writing to the release of his records by a board of education.

22. It is found, after careful review of the in-camera records, that in-camera records 2000-624-5A through 2000-624-244A and in-camera records 2000-624-1B through 2000-624-17B constitute records of teacher performance and evaluation within the meaning of §10-151c, G.S., and are exempt from mandatory disclosure pursuant to that provision.

23. With respect to in-camera records 2000-624-1A through 2000-624-5A and 2000-624-245A through 2000-624-256A, it is found that such records do not constitute records of teacher performance and evaluation within the meaning of §10-151c, G.S., and are therefore not exempt from mandatory disclosure pursuant to that provision.

24. In Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993), the Supreme Court set forth the test for the exemption contained in §1-210(b)(2), G.S. 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.

25. It is found that in-camera records 2000-624-1A through 2000-624-5A and 2000-624-245A through 2000-624-256A constitute personnel or similar files within the meaning of §1-210(b)(2), G.S.

26. However, it is found that the records referred to in paragraph 25, above, consist of information that pertains to legitimate matters of public concern, and that disclosure would not be highly offensive to a reasonable person. Consequently, it is concluded that disclosure of such records would not constitute an invasion of personal privacy and such records are not exempt from disclosure pursuant to §1-210(b)(2), G.S.

27. It is concluded that the respondent violated the disclosure provisions of §1-210(a), G.S., by failing to provide the complainant with copies of in-camera records 2000-624-1A through 2000-624-5A and 2000-624-245A through 2000-624-256A.

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 records described in paragraphs 10 and 23 of the findings, above. However, the Commission declines to order the disclosure of the bank account numbers and social security numbers contained in in-camera records 2000-624-1A through 2000-624-5A and 2000-624-245A through 2000-624-256A.

2. The respondent shall forthwith undertake a diligent search of the high school files for records responsive to the complainant’s request described in paragraph 2a of the findings, above. If the responsive records are found, the respondent shall forthwith provide the complainant with copies or, in the alternative, move to reopen the hearing in this matter, to consider whether such records are exempt from mandatory disclosure. If no responsive records are found, the respondent shall provide the complainant with an affidavit detailing the scope, duration, and results of the search.

3. Henceforth, the respondent shall strictly comply with the disclosure provisions of §1-210(a), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of June 13, 2001.

_________________________________________

Petrea A. Jones

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:

Eric Gustavson

c/o Winona W. Zimberlin, Esq.

2 Congress Street

Hartford, CT 06114-1024

Board of Education, Brookfield

Public Schools

c/o Nicole A. Bernabo, Esq.

Sullivan, Schoen, Campane &

Connon, LLC

646 Prospect Avenue

Hartford, CT 06105-4289

________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2000-624/FD/paj/06/15/2001