FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on December 14, 2006, at which time the complainants 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.  By letter of complaint dated August 7, 2006, and filed on August 14, 2006, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by:

a.  denying the complainants’ request for all documents related to an inquiry into Kenneth V. Henrici, Superintendent, Wallingford Public Schools (hereinafter “the superintendent”), including a report (hereinafter “the requested record”) produced by the respondent’s attorney, Peter A. Janus (hereinafter “Attorney Janus”); and

b.  meeting in executive session in January 2006, and determining through consensus not to renew Mr. Henrici’s contract.

3.  At the hearing before the Commission, the respondent moved to dismiss the complaint on the basis of res judicata.  Specifically, the respondent claims that by letter of complaint dated March 21, 2006, and filed on March 27, 2006, the complainants brought a similar complaint before the Commission in Docket #FIC 2006-135A which alleged in relevant part that the respondent violated the Act by “…denying [the] request for the report on an investigation by Attorney Janus into a dispute between Superintendent of Schools, Kenneth V. Henrici and Business Manager Linda Winters.”  By letter of complaint dated July 18, 2006, and filed on July 20, 2006, complainant Michelle Russo alleged in Docket #FIC 2006-368 that the respondent violated the FOI Act by reaching a consensus not to renew an employment contract with the superintendent during an executive session, and by failing to record the consensus taken in such executive session.  Also, in Docket #FIC 2006-398, complainant Wesley Lubee alleged, among other things, that the respondent violated the FOI Act by reaching a consensus not to renew an employment contract with the superintendent during an executive session.

 

4.  It is found that although the issues raised in Docket #FIC 2006-368 and Docket #FIC 2006-398 are similar to the issue raised herein, there is nothing that precludes the Commission from hearing and deciding cases raising similar issues brought by different parties.

 

5.  It is therefore found that the doctrine of res judicata has no application in this case and does not deprive the Commission of jurisdiction in this matter.

 

6.  The respondent’s motion to dismiss is therefore denied.

 

7.  The respondent again moved to dismiss the allegation described in paragraph 2b, above, claiming the appeal was not filed with the Commission in a timely manner.

 

8.  Section 1-206(b)(1), G.S., provides in relevant part:

 

“Any person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by

filing a notice of appeal with said commission.  A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held….”

9.  It is found that the complainants had notice in fact in May 2006, that the January meeting was held, within the meaning of §1-206(b)(1), G.S.  In this regard, it is found that various published newspaper articles reported on the January meeting, and it was also the subject of a press release, dated June 6, 2006, that was issued by the respondent board.

10.  It is therefore concluded that the Commission has no jurisdiction to address the alleged violation described in paragraph 2b, above.

            11.  With respect to the allegation described in paragraph 2a, above, §1-200(5), G.S., provides in relevant part:

 

“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency … whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

                                                                 

12.  Section 1-210(a), G.S., provides in relevant part:

 

[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 section 1-212….

 

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

 

14.  It is found that, by letter dated on or about July 6, 2006, the complainants requested that the respondent provide them with a copy of the following records, which shall hereinafter be referenced as “the requested records”:

 

“…all documents related to the investigation concerning Superintendent Kenneth V. Henrici and Business Manager Linda E. Winters conducted by Peter A. Janus, of Siegel, O’Connor, O’Donnell & Beck, P.C.   This is a request for all documents regarding the investigation from the Nov. 21, 2005 Board of Education meeting to the present.  It should include, but not be limited to, an inquiry report produced by Janus.

 

15.  It is found that, on behalf of the respondent, Attorney Janus, sent a letter dated July 10, 2006, to the complainants stating in relevant part:

 

“First, you have asked for copies of any documents related to this inquiry conducted into the Superintendent of Schools, Kenneth V. Henrici.  Enclosed are the following two documents:

 

1.      Special Education Tuition Placement Analysis, dated 11/9/05.

2.      Placed Out/Student Support Narrative.

 

Second, you have requested a copy of the inquiry report submitted to the Board of Education by Peter A. Janus, of Siegel, O’Connor, O’Donnell & Beck, P.C.

Please be advised that the Board of Education has no such document.”

 

16.  It is found that Attorney Janus prepared a draft report.  Five or six copies of the report were provided to members of the respondent to share during an executive session in or around December 2006.  The copies were collected by Attorney Janus at the end of the executive session.  The respondent maintained that it did not have a copy of the report in its possession; however, it indicated that Attorney Janus might have a copy. 

 

17.  It is found that the respondent board used the report during the executive session described in paragraph 16, above.  Therefore, it is concluded that the report constitutes “any recorded data or information relating to the conduct of the public's business . . . used . . . by a public agency” within the meaning of §1-200(5), G.S.

 

18.  Moreover, it is concluded that since the respondent’s attorney has physical custody of the report, the respondent board “maintains” the report within the meaning of §1-210(a), G.S.

 

19.  It is therefore found that the report is a public record within the meaning of §§1-200(5) and 1-210(a), G.S.

 

20.  The respondent contends that the report is a “preliminary draft” within the meaning of §1-210(b)(1), G.S., and is exempt from mandatory disclosure.

 

21.  Section 1-210(b)(1), G.S., provides in relevant part that nothing in the FOI Act shall be construed to require disclosure of “preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.…”

 

22.  In Shew v. Freedom of Information Commission, the Supreme Court ruled that “the concept of preliminary [drafts or notes], as opposed to final [drafts or notes], should not depend upon...whether the actual documents are subject to further alteration…” but rather “[p]reliminary drafts or notes reflect that aspect of the agency’s function that precede formal and informed decision making....  It is records of this preliminary, deliberative and predecisional process that...the exemption was meant to encompass.”  Shew v. Freedom of Information Commission, 245 Conn. 149, 165 (1998).

 

23.  It is found that the respondent has determined that because the report was a “draft”, the public interest in withholding the requested record clearly outweighs the public interest in its disclosure, within the meaning of §1-210(b)(1), G.S.

24.  Section 1-210(e)(1), G.S., further provides that, notwithstanding §1-210(b)(1), G.S., disclosure shall be required of:

Interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency. [Emphasis added.]

 

25.  It is found that although the respondent asked Attorney Janus to prepare the report as a draft subject to revision, Attorney Janus submitted the report to the members of the respondent for discussion and review, as described in paragraph 16, above. 

 

26.  It is also further found that the requested record is a report comprising part of the process by which governmental decisions and policies are formulated, within the meaning of §1-210(e)(1), G.S.  Accordingly, it is concluded that the report is not exempt from disclosure pursuant to §1-210(b)(1), G.S., and that the respondent violated §§1-210(a) and 1-212(a), G.S., by failing to promptly provide a copy of the requested record to the complainant, as alleged in the complaint.

 

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 secure a copy of the requested report from Attorney Janus and provide the complainant with a copy of the requested report described in paragraph 16 of the findings, above, free of charge.

 

            2.  If the requested record ordered disclosed in paragraph 1 of the order does not exist, the respondent shall immediately provide the complainant with a notarized affidavit attesting thereto.

 

3.  With respect to the allegation described in paragraph 2b of the findings above, the complaint is hereby dismissed.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 28, 2007.

 

________________________________

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 Cotton and the Record-Journal

Eleven Crown Street

Meriden, CT 06450

 

Board of Education, Wallingford

Public Schools

c/o Daniel P. Murphy, Esq.

150 Trumbull Street

Hartford, CT 06103

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-407FD/paj/4/4/2007