FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on May 15, 2008, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.  It is found that, by letter dated December 13, 2007, the complainant requested from the respondents, “the following materials relating to the accusations made against my son, Steven Bryn, by [another] Greenwich High School student [ ]:

 

a.       [c]omplete copies of any and all reports, records, memoranda, notes and e-mails in your possession and/or the possession of Greenwich High School (hereinafter GHS) and/or the possession of Greenwich Board of Education concerning the alleged incident or incidents, including but not limited to:  All reports submitted to GHS by [the student]; All e-mails submitted to GHS by [the student]; All statements submitted to GHS by any GHS students concerning the alleged incident or incidents; and all reports, records, memoranda, notes and emails created by staff of GHS and/or Greenwich Board of Education concerning the alleged incident or incidents; and

 

b.      [c]opies of any Greenwich High School policies and/or any Greenwich Board of Education policies which it is claimed that Steven Bryn violated.”

 

3.  It is found that, by letter dated December 14, 2007, the respondents informed the complainant that her request for records had been received, and that she would be contacted “by December 21, 2007” regarding when copies of the requested materials would be provided.  

 

4.  It is found that the complainant’s son was suspended from school for three days beginning December 17, 2007.

 

5.  It is found that, on December 18, 2007, the complainant filed with the respondents a Request for Appeal of the respondents’ decision to suspend her son.

 

6.  It is found that on December 18, 2007, the complainant filed an action in superior court against the respondents, seeking to enjoin the respondents from imposing disciplinary action against her son.

 

7.  It is found that the complainant believed that the records described in paragraph 2, above, contained information she needed to be able to meaningfully represent her son at any appeal hearings to be held by the respondents concerning their decision to suspend her son.

 

8.  By letter dated December 19, 2007, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying her a copy of the records described in paragraph 2, above. 

 

9.  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.

 

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

 

11.  It is found that, by letter dated January 28, 2008, the respondents provided the complainant with certain records, responsive to the request described in paragraph 2, above.  It is found that such records consist of:  a two-page Report of Investigation, signed by David A. Ross; a one-page Student Referral Form; two emails; a handwritten telephone message; and several pages of school policies regarding sexual harassment and suspension and expulsion/due process.  It is found that such records existed, but were not provided to, the complainant before the appeal hearings took place. 

 

12.  It is found that the records described in paragraph 11, above, were redacted, pursuant to the Family Educational Rights and Privacy Act (“FERPA”).[1]

 

13.  It is also found that certain other responsive records were withheld from the complainant on January 28, 2008 in their entirety, pursuant to FERPA.  The respondents argued, at the hearing in this matter, that some records that were withheld from the complainant on January 28, 2008, were withheld because such records are “preliminary drafts or notes,” within the meaning of §1-210(b)(1), G.S. 

 

14.  It is found that on February 11, 2008, in response to a subpoena issued by the superior court in connection with the civil action referenced in paragraph 6, above, the respondents provided to the complainant the additional records responsive to the request described in paragraph 2, above, that were withheld from her on January 28, 2008.  It is found that such additional records, with student information, and other personally identifying information redacted, were offered as evidence in the hearing in this matter, and consist of the following:  notes taken by school administrators during interviews of witnesses; and statements of student witnesses. [2]

 

15.  It is found that the records requested by the complainant, described in paragraph 2, above, are public records, within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S.

 

16.  The complainant contends that the FOI Act required the respondents to provide all of the records described in paragraphs 11 and 14, above, to her “promptly” in response to her December 13, 2007 request, and that the respondents could have provided such records while complying with the confidentiality requirements of FERPA, by simply redacting the students’ names and other personally identifying information from such records.  In addition, at the hearing in this matter, the complainant argued that additional records exist that were not provided to her.[3]

 

17.  The respondents first argue that the interview notes and student witness statements, described in paragraph 14, above, are “preliminary drafts or notes,” and therefore, exempt from disclosure under §1-210(b)(1), G.S.  Such provision states, 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…”

 

18.  In Shew v. Freedom of Information Commission, the Supreme Court stated 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).

 

19.  It is found that, with respect to the interview notes, such notes were used by Mr. Ross during the predecisional process leading up to his preparation of the final Report of Investigation, described in paragraph 11, above.  As such, it is further found that such notes are “preliminary drafts or notes” within the meaning of §1-210(b)(1), G.S. 

 

20.  It is found that the respondents determined that the public interest in withholding such interview notes clearly outweighed the public interest in their disclosure, within the meaning of §1-210(b)(1), G.S.

 

21.  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 government 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.

 

22.  It is concluded that such interview notes 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 such interview notes are exempt from mandatory disclosure pursuant to §1-210(b)(1), G.S., and thus, that the respondents did not violate the FOI Act by denying access to such records “promptly,” as alleged.

 

23.  It is found that, with respect to the witness statements, such statements are not “drafts” or “notes” within the meaning of §1-210(b)(1), G.S., and therefore, it is found that the respondents failed to prove that such records are exempt from mandatory disclosure under such provision.

 

24.  Next, the respondents argue that the witness statements are exempt from disclosure under FERPA.  Section 1-210(b)(17), G.S., provides that disclosure is not required of “[e]ducational records which are not subject to disclosure under the Family Educational Rights and Privacy Act [“FERPA”], 20 USC 1232g.”

 

25.  Section 1232g(b)(1) of Title 20 provides that, with certain exceptions:  

 

No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a) of this section) of students without the written consent of their parents to any individual, agency, or organization….

 

26.  “Education records” is defined at 20 USC §1232g(a)(4)(a) as “those records, files, documents and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.”

 

27.  This Commission has concluded, on numerous occasions, that §1-210(b)(17), G.S., in conjunction with 20 USC §1232g, prohibits public schools that receive federal funding from disclosing information concerning a student that would personally identify that student, without the appropriate consent.  See, e.g. Eugene M. Soja v. Commissioner, State of Connecticut, Department of Education, et al., Docket #FIC 2002-227 (January 8, 2003); Brenda Ivory v. Vice-Principal, Griswold High School, Griswold Public Schools; and Griswold Public Schools, Docket #FIC 1999-306 (January 26, 2000).

 

28.  It is found that the witness statements are “education records” within the meaning of 20 USC §1232g(a)(4)(a), because they contain information directly related to a student and are maintained by the respondent Greenwich High School.   

 

29.  With respect to the witness statements, described in paragraph 14, above, the respondents argue that withholding such records in their entirety was appropriate because they contain information related to a specific incident, out of which arose a disciplinary matter in which the “complainant was deeply involved,” such that the students’ identities “would not be protected by mere redaction of such students’ names.”  According to the respondents, “redaction of personally-identifiable student information from the student witness statements…was not possible relative to [the] [c]omplainant’s request.”  Post-Hearing Brief of Respondents at 10-11.

 

30.  As evidenced by the court’s simple solution for protection of personally identifiable information contained in the witness statements, i.e., requiring counsel to type the witness statements so that the students could not be identified through their handwriting, then requiring redaction of all other personally identifiable information, the respondent’s argument is found to be without merit.  

 

31.  Accordingly, based upon the facts and circumstances of this case, it is found that the witness statements, excepting personally identifiable information, are not exempt from mandatory disclosure under FERPA. 

 

32.  With respect to the complainant’s claim that the records described in paragraph 11, above, and the witness statements, described in paragraph 14, above, were not provided to her “promptly,” the Commission has held that the meaning of the word “promptly” is a particularly fact-based question.  In Advisory Opinion #51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982), the Commission advised that the word “promptly,” as used in §1-210(a), G.S., means quickly and without undue delay, taking into consideration all of the factors presented by a particular request.  The Commission also gave the following guidance:

 

The Commission believes that timely access to public records by persons seeking them is a fundamental right conferred by the Freedom of Information Act.  Providing such access is therefore as much a part of their mission as their other major functions.  Although each agency must determine its own set of priorities in dealing with its responsibilities within its limited resources, providing access to public records should be considered as one such priority.  Thus, it should take precedence over routine work that has no immediate or pressing deadline.

 

33.  The advisory opinion goes on to describe some of the factors that should be considered in weighing a request for records against other priorities:  the volume of records requested; the time and personnel required to comply with a request; the time by which the person requesting records needs them; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the importance to the public of completing the other agency business without the loss of the personnel time involved in complying with the request.

 

                34.  It is found that the respondents offered no explanation at the hearing as to why it took them almost a month and a half to provide the complainant with copies of the school’s policies the complainant’s son was alleged to have violated.  Although the respondents’ assert in their post-hearing brief that their response was “prompt,” given their “simultaneous involvement in a disciplinary matter, an injunction hearing, a Commission Complaint, and the operation of the Greenwich Public Schools,” it is found that they offered no evidence at the hearing in this matter, for example: (1) that the request took an inordinate amount of time to fulfill; (2) that staffing levels were insufficient at the time of the request; (3) that there were other projects at the time of the complainant’s request that staff was working on that had time constraints that conflicted with fulfilling the complainant’s request.    

 

35.  On the other hand, it is found that the importance to the complainant of not only the records themselves, but also timely access to such records, was very high and such should have been obvious to the respondents, in view of the findings of fact in paragraphs 4 through 7 and 11.  It is found that, under the facts and circumstances of this case, the respondents did not provide the records described in paragraph 11, above, or the witness statements, described in paragraph 14, above, to the complainant “promptly.”

 

36.  It is therefore concluded that the respondents violated §1-212(a), G.S., as alleged, by failing to provide copies of the records described in paragraph 11, above, and the witness statements, described in paragraph 14, above, to the complainant “promptly.”

 

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

            1.  Henceforth, the respondents shall strictly comply with the promptness provisions of the FOI Act.                                         

           

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 9, 2008.

 

____________________________

S. Wilson

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:

 

Christine Maze

6A Lockwood Drive

Old Greenwich, CT 06870

 

Superintendent, Greenwich Public

Schools; David A. Ross, Cantor

Housemaster, Greenwich High School,

Greenwich Public Schools; Alan

Capasso, Headmaster, Greenwich

High School, Greenwich Public

Schools; and Greenwich Public Schools

c/o Abby R. Wadler, Esq.

Assistant Town Attorney

Town of Greenwich

Law Department

101 Field Point Road

P.O. Box 2540

Greenwich, CT 06836

 

and

 

c/o Thomas B. Mooney, Esq.

Shipman & Goodwin

One Constitution Plaza

Hartford, CT 06107

 

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2007-694FD/sw/7/14/2008