FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on July 19, 2007, at which time the complainant and respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  At the March 4, 2008 meeting of the Commission, the Connecticut State University-American Association of University Professors, requested and was granted intervenor status for the purpose of offering oral argument.

 

After consideration of the entire record, the following facts are found and conclusions of law are reached:

1.      By letter dated March 6, 2007, and filed on March 8, 2007, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with his records request for the “raw data on all individual votes generated and any other information that may reflect each individual’s decision as per [his] promotion scores.”

 

2.      At the hearing on this matter, the respondent contended that neither he nor the Promotion and Tenure Committee are public agencies and therefore are not required to comply with the disclosure provisions of the FOI Act. 

 

3.      At the hearing on this matter, the respondent relied on this Commission’s decision in Docket #FIC 1991-163, Barry S. Zitser v. University-Wide Promotion and Tenure Committee, Central Connecticut State University (hereinafter “Zitser”). 

 

4.      It is found that in Zitser, the word “committee” as found in §1-200(1), G.S., was more narrowly construed pursuant to the language in the statute at that time – consistent with Elections Review Committee v. FOIC, 219 Conn. 685(1991).  It is found, however, that in 1993, P.A. 93-195 broadened the meaning of a “public agency” or “agency” to include not only committees “of,” that is, that were subunits of the public agency that established them, but also committees “created by” a “public agency” or “agency.”  It is concluded, therefore, that Zitser is not controlling in this case.

 

5.      Section 1-200(1), G.S., provides in relevant part that:

 

“Public agency” or “agency” means: (A) Any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official . . . .  (emphasis added)

 

6.      It is found that the Promotion and Tenure Committee was created by Southern Connecticut State University (hereinafter “SCSU”) pursuant to the collective bargaining agreement between the Connecticut State University System, which includes SCSU, and Connecticut State University American Association of University Professors (the collective bargaining unit) at section 4.11.13 of that agreement.

 

7.      It is found that the purpose of the Promotion and Tenure Committee is to receive and review recommendations and accompanying materials for tenure and promotion at SCSU.

 

8.      It is found that the Promotion and Tenure Committee meets on a series of Fridays to discuss and vote on the tenure and promotion candidates, at the conclusion of which it makes its recommendation to the president of SCSU.

 

9.      It is found that while the recommendation of the Promotion and Tenure Committee is not binding on the president of SCSU, its participation in the promotion and tenure process is not only central to that process, but also required by SCSU, pursuant to the agreement described in paragraph 6, above. 

 

10.   It is found that while the Promotion and Tenure Committee is a committee “of” the faculty, as found in Zitser above, in that it is composed of faculty members and is therefore a subunit of the faculty within the restrictive meaning of Elections Review Committee v. FOIC, supra, the Promotion and Tenure Committee is also a committee “created by” SCSU in compliance with the terms of the collective bargaining agreement between SCSU and the faculty’s bargaining unit.

 

11.   It is concluded, therefore, that the Promotion and Tenure Committee and its chairman, the respondent, are public agencies within the meaning of §1-200(1), G.S.

 

12.   With respect to the complainant’s records request, §1-200(5), G.S., provides in relevant part that:

 

“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.

 

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

 

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 . . . receive a copy of such records in accordance with section 1-212. 

 

14.   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 . . . .”

 

15.   It is found that for each tenure candidate, the Promotion and Tenure Committee generates three records that would be responsive to the complainant’s records request: scoring sheets, a computer spread-sheet, and ballot sheets.  It is found that the scores from the scoring sheets are entered into a computer to generate the spread-sheet and after review of the data on the spread-sheet, the committee members cast anonymous ballots.  It is found that it has been the long-standing practice of the respondent chairman to discard the scoring sheets after the information has been entered into the computer.

 

16.   It is found, therefore, that, at the time of the complainant’s request, the only records responsive to that request, maintained by the respondent, were the spread-sheet and the ballot sheets. 

 

17.   It is found that the spread-sheet and the ballot sheets described in paragraph 16, above, are public records within the meaning of §1-200(5), G.S.

 

18.   It is found that the respondent failed to prove that the spread-sheet and ballot sheets, described in paragraph 16, above, are exempt from mandatory disclosure.

 

19.   It is found therefore that the respondent violated the disclosure provisions of §§1-210(a) and 1-212(a), G.S., by failing to provide the complainant with a copy of the spread-sheet and the ballot sheets.

 

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

 

1.      Forthwith, the respondent shall provide the complainant with a copy of the spread-sheet and the ballot sheets, free of charge.

 

Approved by Order of the Freedom of Information Commission at its special meeting of March 4, 2008.

 

________________________________

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:

 

David S. Kemler

c/o Southern Connecticut State University

501 Crescent Street

New Haven, CT 06515

           

Chairman, Promotion and Tenure

Committee, State of Connecticut,

Southern Connecticut State University

c/o Holly Jean Bray, Esq.

Assistant Attorney General

Connecticut State University System

39 Woodland Street

Hartford, CT 06105

 

Connecticut State University-American

Association of University Professors

c/o Henry F. Murray, Esq.

Livingston, Adler, Pulda,

Meiklejohn & Kelly, P.C.

557 Prospect Avenue

Hartford, CT 06105-2922

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-148FD/paj/3/5/2008