FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on January 11, 2008, at which time the complainant and the respondent appeared, stipulated to certain facts 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 by e-mail dated August 27, 2007, the complainant made a request to the respondent for a copy of all investigation materials that were used in determining the outcome of the nepotism grievance she filed against Julian Ford.

 

3.      It is found that, by an undated e-mail, the respondent denied the complainant’s request contending that the requested records were exempt from disclosure.

 

4.      By e-mail dated September 19, 2007 and filed on September 20, 2007, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with her records request.

 

5.      Section 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.

 

6.      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. 

 

7.      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 . . . .”

 

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

 

9.      By letter dated February 11, 2008, the hearing officer in this matter issued an order for the production of the following records for in-camera inspection:

 

The records reviewed during the respondent’s 2007 investigation of certain allegations made by the complainant, Karen Mahoney, regarding the hiring of Judy Ford.  Such records include, but are not limited to, faculty performance evaluations and investigatory notes.

 

10.   On February 27, 2008, the respondent submitted the records described in paragraph 9, above, to the Commission for in-camera inspection, which records have been identified as in-camera record #s 2007-506-001 through 2007-506-38.  The cover letter attached to such records indicated that the respondent provided copies of the following records to the complainant, which records had not been provided to the complainant prior to the hearing in this matter:

 

a.       a town of Farmington land record search regarding a house located at 7 Jordon Lane and owned by Julian D. Ford;

 

b.      a town of Farmington report regarding property located at 15 Northington Drive; and

 

c.       a copy of the Chair’s Merit Recommendation For Merit Increase for Karen Mahoney for the Academic Year 2004-2005.

 

11.   At the hearing on this matter, the respondent contended that in-camera records #2007-506-001 through 18 and in-camera records  #2007-506-031 through 2007-506-038, are exempt from mandatory disclosure because the records are preliminary drafts and notes within the meaning of §1-210(b)(1), G.S.  The respondent also contended that in-camera records #s 2007-506-001 through 18 are communications privileged by the attorney-client relationship within the meaning of §1-210(b)(10), G.S.

 

12.   It is found that in-camera records #s 2007-506-001 through 18 and in-camera record # 2007-506-038 were generated by Attorney Karen Duffy Wallace, the Director of Labor Relation and Employment Services for the University of Connecticut’s Health Center, during her investigation of the complainant’s allegations of nepotism.  

 

13.   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.…”

 

14.   In Shew v. Freedom of Information Commission, the Supreme Court ruled that “the concept of preliminary, as opposed to final, 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) citing Wilson v. Freedom of Information Commission, 181 Conn. 324, 332 (1989).

 

15.   Upon careful review of in-camera records #s 2007-506-001 through 18 and in-camera record # 2007-506-038, it is concluded that such documents are preliminary drafts or notes within the meaning of §1-210(b)(1), G.S.

 

16.   It is found that the respondent has determined that the public interest in withholding in-camera records #s 2007-506-001 through 18 and in-camera record # 2007-506-038 clearly outweighs the public interest in their disclosure, within the meaning of §1-210(b)(1), G.S. 

 

17.   Section 1-210(e)(1), G.S., provides in relevant part that, notwithstanding the provisions of §1-210(b)(1), G.S., disclosure shall be required of:

 

[i]nteragency 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.

 

18.   Upon review of in-camera records #s 2007-506-001 through 18 and in-camera record # 2007-506-038, it is concluded that such documents are not 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, within the meaning of §1-210(e)(1), G.S.  Accordingly, it is concluded that in-camera records #s 2007-506-001 through 18 and in-camera record # 2007-506-038 are exempt from mandatory disclosure pursuant to §§1-210(b)(1) and 1-210(e)(1), G.S., and that the respondents did not violate the FOI Act by denying the complainant access to such records.

 

19.   Having concluded that in-camera records #s 2007-506-001 through 18, are exempt from mandatory disclosure pursuant to §§1-210(b)(1) and 1-210(e)(1), G.S., it is unnecessary to address the respondent’s other claim of exemption with respect to those records.

 

20.   It is found, however, that in-camera records #s 2007-506-031 through 37 on their face, do not appear to be preliminary drafts but rather final drafts submitted to the executive vice president of the University of Connecticut’s Health Center who is also the Dean of the School of Medicine.

 

21.   It is also found that the respondent failed to present any evidence at the hearing on this matter with respect to in-camera records #s 2007-506-031 through 37.

 

22.   It is found, therefore, that the respondent failed to prove that in-camera records #s 2007-506-031 through 37, described as the June 25, 2007 and the July 12, 2007 investigation reports are preliminary drafts or notes within the meaning of §1-210(b)(1), G.S.

 

23.   Based upon the findings in paragraphs 21 and 22, above, it is concluded that in-camera records #s 2007-506-031 through 37, are not exempt from mandatory disclosure pursuant to §1-210(b)(1), G.S., and, therefore, the respondent violated the disclosure provisions of §§1-210(a) and 1-212(a), G.S.

 

24.   With respect to in-camera records #s 2007-506-019 through 30, the respondent reviewed two performance evaluations, the complainant’s and Judy Ford’s.  It is found that the complainant has a copy of her own performance evaluation and that the disclosure of Ms. Ford’s performance evaluation is the only record at issue in this regard.

 

25.   Section 10a-154a, G.S., provides in relevant part that:

 

Any record maintained or kept on file by a board of trustees of a constituent unit of the state system of higher education which is a record of the performance and evaluation of a faculty or professional staff member of such constituent unit shall not be deemed to be a public record and shall not be subject to disclosure under the provisions of section 1-210, unless such faculty or professional staff member consents in writing to the release of his records by the board of trustees of the constituent unit. Such consent shall be required for each request for a release of such records.

 

26.   It is found that in-camera records #s 2007-506-019 through 30, are the performance evaluation of Judy Ford, a faculty member of the University of Connecticut Health Center, School of Medicine.  It is also found that Ms. Ford objected to the disclosure of her performance evaluation when asked by the respondent if she would consent to its disclosure.

 

27.   It is concluded therefore that in-camera records #s 2007-506-019 through 30 are excluded from the disclosure provisions of §§1-210(a) and 1-212(a), G.S., and it is concluded that the respondent did not violate the FOI Act by not disclosing them to the complainant.

 

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 a copy of in-camera records #s 2007-506-031 through 37, free of charge.

 

2.       Henceforth, the respondent shall strictly comply with the disclosure provisions of §§1-210(a) and 1-212(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 14, 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:

 

Karen Mahoney

916 Hopmeadow Street

Simsbury, CT 06070

           

Associate Dean, State of Connecticut,

University of Connecticut Health

Center, Department of Faculty Affairs

c/o William N. Kleinman, Esq.

Assistant Attorney General

University of Connecticut Health Center

263 Farmington Avenue

Farmington, CT 06030-3803

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-506FD/paj/5/21/2008