FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as a contested case on June 26, 2007, 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)(A), G.S.

 

2.  It is found that, by an initial email dated January 24, 2007 and a follow-up email dated February 7, 2007, the complainant made a request to the respondent for “all documents relating to the issue of class rank at Fairfield Warde and/or Fairfield Ludlowe High Schools” (the “requested records”).  

 

3.  It is found that, by email dated February 8, 2007, the respondent furnished four pages to the complainant, which pages summarized the process that was being implemented to evaluate the use of class rank and set forth a statistical summary of the results of a survey of college admission representatives concerning the subject of class rank. The respondent also stated in separate emails dated February 8, 2007 that: “[t]hese are all of the documents that we have” and “[t]hese are the only documents we have.”

 

4.  It is found that, by a more detailed email dated February 8, 2007, the complainant reiterated her request for the requested records, with nine detailed questions based upon the four pages of records that she had received. The respondent replied with a letter dated February 9, 2007, stating for the third time: “I reiterate, you have received all of the documents we have related to class rank.”     

 

 

5.  By letter dated and filed with the Freedom of Information Commission (“Commission” or sometimes “FOIC”) on February 9, 2007, the complainant appealed to the Commission, alleging in detail that the respondent’s failure to provide the requested records violated the Freedom of Information Act (“FOIA”). The complainant also requested the imposition of civil penalties.

 

6.  Section 1-206(b)(2), G.S., states in relevant part: 

 

In addition, upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars. (emphasis added)

 

7.  Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:

 

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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

 

…

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. (emphasis added)

 

8.  Section 1-210, G.S., states in relevant parts:

 

(b) Nothing in the Freedom of Information Act shall be construed to require disclosure of:

 

(1) 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;

 

….

 

(e) Notwithstanding the provisions of subdivisions (1) and (16) of subsection (b) of this section, disclosure shall be required of:

 

(1) 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)

 

            9.  It is found that the Fairfield Public Schools at all times relevant hereto was engaged in a process of evaluating the use of class rank in its high schools. The process involved having college admission representatives complete a written survey in the fall of 2006. The results of these surveys were compiled in the first two weeks of January 2007. However, a power point presentation, based upon the compilation of the surveys, was still being verified until a day or so before February 28, 2007, when a focus group was held to discuss the use of class rank. The headmasters of the two high schools (Mr. Jim Coyne and Ms. Nancy Larsen) are charged to co-author a recommendation concerning class rank during the summer of 2007, which, with no specific deadline, will be presented to the respondent and then taken to the board of education.     

 

10.  It is found that the four pages that the respondent provided to the complainant on February 8, 2007 disclosed that additional records did exist within the scope of the complainant’s request, specifically the completed surveys by individual college representatives. These four pages did also disclose the aggregate survey results, stating that certain percentages of colleges followed certain practices and procedures.   

 

11.  It is found that, after seeking advice of counsel, the respondent disclosed four categories of additional records on June 13, 2007: a) the surveys completed by college admission representatives; b) the class rank responses of the NACAC (National Association of College Admission Counselors); c) a compilation of the class rank surveys; and d) the class rank focus group notes. These records comprised all records maintained by the respondent within the scope of the complainant’s request, except for a single record concerning which the respondent claimed the preliminary drafts and notes exemption. At the hearing, the complainant waived her request for this single record, following a general description of the document by the respondent’s counsel.

 

12.  It is found that that the respondent’s three statements set forth at paragraphs 3 and 4, above, to the effect that the complainant had received all of the requested records by February 9, 2007 were inaccurate. Because the respondent knew that the completed surveys existed, she knew that her own written statements were not accurate. At the same time, because the respondent made the disclosures detailed at paragraph 10, above, the respondent apparently did not intend to deceive. The respondent seemed to believe that she did not have to disclose the existence of records that she concluded were exempt from mandatory disclosure as preliminary drafts and notes. She formed this last belief by consulting some FOIA materials that she kept on file, but without seeking advice from any other professionals. At the hearing, the respondent stated that her three statements set forth at paragraphs 3 and 4, above, were not what she would do in hindsight or in the future.

 

13.  It is concluded that the requested records are public records within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S.   

 

14.  It is concluded that the substantial period of time between the creation of the requested records, especially the surveys completed by the college admission representatives, and the formulation of a recommendation concerning class rank, which was still forthcoming as of the hearing date, renders the requested records to be free- standing and not preliminary to any report. Moreover, the respondent did not indicate the reasons for her determination to withhold disclosure, which is a requirement set forth in §1-210(b)(1), G.S., to qualify as a preliminary draft and note. Shew v. Freedom of Information Commission, 245 Conn. 149, 167-8, fn. 22 (1998) (“Shew”).     

 

15.  It is also concluded that the requested records were in the nature of “report[s] comprising part of the process by which governmental decisions and policies are formulated”, but were not “preliminary draft[s] of a memorandum, prepared by a member of the staff of a public agency, which [are] subject to revision prior to submission to or discussion among the members of such agency.” §1-210(e)(1), G.S.   

 

16.  It is therefore concluded that the requested records not disclosed on February 8, 2007 and in existence at the time of the requests (items a, b, and c set forth at paragraph 11, above) were not preliminary drafts and notes exempt from mandatory disclosure pursuant to §1-210(b)(1) and (e)(1), G.S.

 

17.  It is concluded that the respondent violated §§1-210(a) and 1-212(a), G.S., because she failed to provide promptly the requested records not disclosed on February 8, 2007 and in existence at the time of the requests (items a, b, and c set forth at paragraph 11, above). 

 

            18.  It is concluded that the respondent had “reasonable grounds” to deny the complainant access to the requested records not disclosed on February 8, 2007 and in existence at the time of the requests (again, items a, b, and c set forth at paragraph 11, above). These records included surveys and were part of a process that was intended to precede a recommendation, in a manner that was somewhat analogous to both VanNorstrand v. Freedom of Information Commission, 211 Conn. 339 (1989) and Shew.

 

19.  It is also concluded, in the Commission’s discretion, that a civil penalty should not be imposed, based on the facts of this case, solely on the grounds that the respondent knew that her statements concerning the existence of more requested records were not accurate. The complainant’s frustration in this matter is understandable, because the respondent insisted that no more requested records existed, in the face of her own disclosure of records that clearly indicated otherwise. However, the respondent’s statements did not relate directly to the denial of an FOIA right. (As discussed at paragraph 12, above, the denial of an FOIA right resulted from an incorrect application of the exemption for preliminary drafts and notes, and the respondent’s statements were apparently not intended to deceive.)      

 

            20.  It is therefore concluded that there was no denial of an FOIA right without “reasonable grounds” that would justify the assessment of a civil penalty pursuant to §1-206(b)(2), G.S.

 

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

 

1.  Prior to December 1, 2007, the respondent shall, with the assistance of the Commission’s staff, conduct a workshop concerning FOIA requirements for herself and her staff.

 

2.  Henceforth, the respondent shall comply with all requirements of the FOIA promptly.   

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 8, 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:

 

Elise Epner

36 Pequot Road

Fairfield, CT 06825

 

Ann Clark, Superintendent of Schools,

Fairfield Public Schools

c/o Stephen P. Fogerty, Esq.

Halloran & Sage LLP

315 Post Road West

Westport, CT 06880

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-093FD/paj/8/20/2007