FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as contested case on August 2, 2007, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint. A first report of hearing officer was transmitted to the parties on August 29, 2007, but was withdrawn from the agenda of the September 26, 2007 Commission meeting.

 

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 letter dated February 14, 2007, the complainant made a request to the respondent to “review all the score sheets, notes, etc. used to arrive at a final grade” by “the assessment center for Deputy Chief.” In the complaint and more clearly at the hearing, the complainant clarified that he was requesting these records    with reference to only his own examination (the “requested records.”)

 

3.  It is found that, by letter dated February 28, 2007, addressed to the complainant, the respondent denied the complainant’s request, stating that the records were “proprietary” to Jacques Personnel and that disclosure of the requested records “would compromise the integrity of the testing process.” 

 

4.  By letter dated and postmarked March 30, 2007, the complainant appealed to the Commission, alleging that the respondent’s failure to provide the requested records violated the Freedom of Information Act (“FOIA”). 

 

 

5.  Section 1-200(5), G.S., states:

 

“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, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

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

 

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.  For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken.  

 

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. 

 

8.      Section 1-210(b), G.S., states in relevant part:

 

Nothing in the Freedom of Information Act shall be construed to require disclosure of…(6) Test questions, scoring keys and other examination data used to administer …[an] examination for employment….

 

9.  It is concluded that the complaint to the Commission was postmarked within thirty days of the denial of the complainant’s request. Accordingly, the Commission has jurisdiction over the complaint pursuant to §1-206(b)(1), G.S.    

 

10.  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.

 

11.  It is found that Jacques Personnel performed an examination for two positions in February 2006: Deputy Chief of the Fire Department and Fire Lieutenant. The complainant has been given access to review the entire written portion of his examination. The requested records relate only to the oral portion of his examination, which consisted of four different exercises.

 

12.  In response to an order from the Commission dated October 11, 2007 for production of the requested records for an in camera inspection, the respondent on October 29, 2007 submitted twenty-four records.  On the index to the in camera records, the respondent claimed the exemption at §1-210(b)(6), G.S., for each record. Such records are hereby identified as IC-2007-200-1 through IC-2007-200-24.

 

13.  In Patricia Washington, Personnel Director of the City of Hartford v. Freedom of Information Commission, CV 98 0492644S, Superior Court, Judicial District of New Britain, August 31, 1999, p. 4, the Court stated:

 

Here, the FOIC ordered disclosed the oral board panelists’ scoring sheets containing the individual scores of the candidates made during the oral interview. Based upon the testimony at the FOIC hearing, a strong argument could be made that that these scoring sheets are the equivalent of a scoring key…. This court finds that the written answers, the taped oral answers and the panelists’ scoring sheets are examination data within the meaning of [§1-210(b)(6), G.S.] (emphasis added) 

 

14.  However, in Donna Porstner and the Stamford Advocate v. Fire Commission, City of Stamford, Docket #FIC 2006-291, it was “found that the respondent failed to prove that the requested oral interview scoring sheets were the equivalent of a scoring key, within the meaning of §1-210(b)(6), G.S.”, and the “oral interview scoring sheets” were ordered disclosed.

  

15.  Based upon the in camera review, it is concluded that IC-2007-200-1 and IC-2007-200-2 are not “the equivalent of a scoring key” or “other examination data used to administer” (emphasis added) an examination for employment. Rather, these records disclose scores themselves, both for the oral exam as a whole and for the four different exercises. These records therefore contain data “resulting from the administration of an examination.” Porstner at paragraph 15 (italics in original).

 

16.  Based upon the in camera review, it is also concluded that IC-2007-200-3 through IC-2007-200-24 are “the equivalent of a scoring key” or “other examination data used to administer” (emphasis added) an examination for employment. These records indicate concepts or qualities that are given credit and therefore are the equivalent of a scoring key. Porstner at paragraph 14.

 

17.  Accordingly, it is concluded that IC-2007-200-1 and IC-2007-200-2 are subject to mandatory disclosure. The respondent violated §§1-210(a) and 1-212(a), G.S., when she declined to arrange for the complainant to inspect these records.

 

18.  However, it is also concluded that IC-2007-200-3 through IC-2007-200-24 are exempt from mandatory disclosure pursuant to §1-210(b)(6), G.S. The respondent did not violate §§1-210(a) and 1-212(a), G.S., when she declined to arrange for the complainant to review these records.

 

            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 arrange for the complainant to inspect IC-2007-200-1 and IC-2007-200-2. 

 

           

Approved by Order of the Freedom of Information Commission at its regular meeting of December 12, 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:

 

Shawn J. McDonnell

47 Meyer Place

Riverside, CT 06878

           

Assistant Director,

Human Resources Department,

City of Greenwich

c/o Abby Wadler, Esq.

Assistant Town Attorney

101 Field Point Road

PO Box 2540

Greenwich, CT 06836-2540

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-200FD/paj/12/18/2007