FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on March 17, 2009, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, the above-captioned matter was consolidated with Docket #FIC 2008-736, Dawn McKay and the Connecticut State Employees Association Service Employees International Union, Local 2001 v. Human Resources Director, State of Connecticut, Department of Environmental Protection; and State of Connecticut, Department of Environmental Protection. 

 

1.  The respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.  By letter dated August 4, 2008, and filed with the Commission on August 11, 2008, the complainants alleged that the respondents violated the Freedom of Information (hereinafter “FOI”) Act by failing to provide information requested in their May 23, 2008 letter described in paragraph 3, below.

 

3.  It is found that, by letter dated May 23, 2008, the complainants requested that the respondents provide them with copies of “any and all documents, notes (handwritten or otherwise), memorandums, correspondence, e-mails or other electronic files created or compiled by the Department of Environmental Protection related to the process of interviewing and selecting candidates for Position No. 63306 (Air Pollution Control Engineer 3 recently filled in the Air Bureau’s Engineering Section) and Position No. 64040 (Environmental Protection Supervising Environmental Analyst recently filled in the Bureau of Water Protection and Land Re-use, Planning and Standards Division).”  The complainants specifically requested the following related information:

a. “The process of selecting potential candidates for interview including, but not limited to, copies of the job applications, (PLD-1) that were reviewed for those selected for interview”;

 

b. “Any correspondence regarding the specific interview questions used by the interview teams”;

 

c. “A list of the actual interview questions used by the interview teams”; and

 

d. “The interview process (including, but not limited to, the DEP’s interviewer’s Report for each position, interviewer’s notes, rankings and other reports or documents related to the interviews).”

 

4.  It is found that, by letter dated May 23, 2008, the Department of Environmental Protection’s (hereinafter “DEP”) Personnel Administrator, acknowledged receipt of the complainants’ request.  DEP’s administrator also advised the complainants that DEP would promptly “search its files to locate the requested records and to determine which, if any, contain privileged information.”

 

5.  At the hearing on this matter the complainants withdrew their requests for the records described in paragraphs 3a. and 3b., above.  In their post-hearing brief, the complainants further narrowed their request to “exclude any draft documents” among the records described in paragraphs 3c. and 3d., above.  Therefore, the remaining records at issue that will be addressed herein are the following records as outlined in the complainants’ post-hearing brief:

 

a.       “For the Position Number 64040”

                                                                    i.            “Interview Questions (Complainant Exhibit G, p. 5)”;

                                                                  ii.            “DEP Interviewer’s Report & Recommendations for Hiring/Promotions (Complainant Exhibit G, p. 5)”;

                                                                iii.            “Dunbar Interviewer Notes (Complainant Exhibit G, p. 5)”;

                                                                iv.            “Stacey Interviewer Notes (Complainant Exhibit G, p. 5)”; and

                                                                  v.            “Thompson Interviewer Notes (Complainant Exhibit G, p. 5).”

 

b.      “For Position Number 63306”

                                                                    i.            “Attachment: 07 Questions for APC3 (Complainant Exhibit G, p. 8)”;

                                                                  ii.            “Interview Questions (Final) (Complainant Exhibit G, p. 8)”;

                                                                iii.            “Attachment: Interview Questions correlation table for applicable criteria matrix (Complainant Exhibit G, p. 8)”;

                                                                iv.            “Attachment: Interviewer’s Report (10:24) (Complainant Exhibit G, p. 9)”; and

                                                                  v.            “Interviewer’s Comment Form (Complainant Exhibit G, p. 10).”

 

(hereinafter the “requested records”).

 

6.  Section 1-200(5), G.S., provides:

 

“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.

 

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

 

[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 the provisions of section 1-212.

 

8.  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 . . . .”

 

9.  It is found that, to the extent the requested records exist and are maintained by the respondents, such records are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

10.  After the hearing on this matter, the Commission ordered the respondents to submit portions of the requested records, consisting of interviewer notes and interviewers’ reports and recommendations for hiring/promotions, for in camera inspection.  Such records consist of 311 pages, which have been marked for identification purposes as IC# 2008-525-1 through IC# 2008-525-311.  The respondents also provided the complainants with a record identified by the respondents as a blank copy of the Interviewer Comment Form for Position No. 63306 (Air Pollution Control Engineer 3), described in paragraph 5(b)(v.), above.

 

11.  At the hearing on this matter and on the index to records submitted for in camera inspection, the respondents maintained their claim that the requested records are exempt from disclosure pursuant to §1-210(b)(6), G. S.  The respondents also maintained that portions of the requested records were specifically exempt from disclosure pursuant to §1-210(b)(1), G.S.

 

12.  Section 1-210(b)(6), G.S., provides in relevant part that nothing in the FOI Act shall require the disclosure of “test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examinations . . . .”

 

13.  In Washington v. FOIC, 25 Conn. L. Rptr. 334 (1999), the Superior Court concluded that, “[b]ased on the testimony at the FOIC hearing,” oral board panelists’ scoring sheets were “the equivalent of a scoring key” which is specifically exempted from disclosure under §1-210(b)(6), G.S.

 

14.  The Commission has previously interpreted Washington to mean that certain oral interview scoring sheets were exempt from disclosure pursuant to §1-210(b)(6), G.S.  See Docket #FIC 2000-501, Randal Edgar et al. v. Waterbury Superintendent of Schools (scores assigned by interviewers to each candidate for the position of superintendent of schools constitute examination data used to administer an examination for employment within the meaning of §1-210(b)(6), G.S., and Washington v. FOIC);  Docket #FIC 2003-377, Casey v. Department of Correction (forms containing questions asked by the interview panel, candidates’ responses, ratings given by the interview panel members and any comments made by such members constituted test questions, scoring keys and other examination data used to administer an examination for employment within the meaning of §1-210(b)(6), G.S., and Washington v. FOIC); Docket #FIC 2001-006, Murray v. Hartford Personnel Director (scoring sheets of each of oral board panelist for each candidate constitute examination data within the meaning of §1-210(b)(6), G.S., and Washington v. FOIC); Docket #FIC 2000-649, Scharf v. Ridgefield Police Commission (the numerical score given to each candidate by each panelist for every question asked constitute examination data used to administer an examination for employment within the meaning of §1-210(b)(6), G.S.).

 

15.  At the hearing on this matter and in their post-hearing brief, the complainants contended that requested records are not exempt from disclosure under §1-210(b)(6), G.S.  The complainants cite §§5-215a, 5-216(a), and 5-219, G.S., in support of their contention that the respondents’ selection process to fill the two vacant positions at issue in this matter, is two-part.  The complainants contended that during the first part of developing a “qualified candidate list,” files created and compiled while evaluating the experience and training of candidates by comparing candidate applications and resumes with the minimum qualifications required for state positions, are part of the examination process and are exempt under §1-210(b)(6), G.S.  The complainants also contended that “files created and compiled” during the second part of the selection process consisting of interviews and the selection of a candidate from among the qualified candidate list, do not constitute examination data within the meaning of §1-210(b)(6), G.S.  The complainants further contended that the second part of the selection process “is not an examination nor is it an extension of the examination” process.

 

16.  Sections 5-215a, 5-216(a), and 5-219, G.S., provide, in relevant part, respectively:

 

When a vacancy in any permanent position in the classified service is to be filled, the appointing authority shall request the Commissioner of Administrative Services to provide a candidate list.  The candidate list certified by the commissioner shall contain the final earned rating of each candidate. The appointing authority shall fill the vacant position by selecting any candidate on the candidate list. . .

 

The Commissioner of Administrative Services shall hold examinations for the purpose of establishing candidate lists for the various classes of positions in the classified service….In establishing any candidate list following examinations, the commissioner shall place on the list, in the order of their ratings, the names of persons who show they possess the qualifications which entitle them to be considered eligible for appointment when a vacancy occurs in any position allocated to the class for which such examination is held or for which such candidate list is held to be appropriate. Such ratings may take such form as the commissioner deems appropriate to describe the performance of any candidate on any examination. . . .

 

Examinations shall be in such form and of such character and shall relate to such matters as will fairly test and determine the qualifications, fitness and ability of the persons tested to perform the duties of the class or position to which they seek appointment . . . . Formal education requirements may be considered as a condition for the taking of such examinations. Possession of a professional license or degree, or satisfactory completion of an accreditation, certificate or licensure program may serve as the sole basis for appointment, provided such credentials are a mandatory requirement for employment in a position. Examinations may take the form of written or oral tests, demonstration of skill or physical ability, experience and training evaluation, or in the case of promotional examinations, evaluation of prior performance, or any other assessment device or technique deemed appropriate to measure the knowledge, skills or abilities required to successfully perform the duties of the job . . . .

 

17.  It is concluded however that §§5-215a, 5-216(a), and 5-219, G.S., do not require public disclosure of the requested records described in paragraph 5, above.

 

18.  It is found that in camera records IC# 2008-525-1 through IC# 2008-525-311 are comprised of interviewer notes, interview questions, and interview reports and recommendations for hiring/promotions.  It is also found that such in camera records constitute all of the requested records described in paragraph 5, above.

 

19.  The Commission takes administrative notice of the record and decision in Docket #FIC 2006-291, which ordered the disclosure of oral interview scoring sheets for firefighter applicants in that matter.  However, upon review of in camera records IC# 2008-525-1 through IC# 2008-525-311, it is found that they are distinguishable from the scoring sheets involved in Docket #FIC 2006-291.

 

20.  Consequently, it is concluded that in camera records IC# 2008-525-1 through IC# 2008-525-311, contain test questions, scoring keys and other examination data within the meaning of §1-210(b)(6), G.S.  It is therefore concluded that such in camera records are permissibly exempt from disclosure pursuant to the provisions of §1-210(b)(6), G.S.

 

21.  It is therefore concluded that the respondents did not violate the FOI Act by withholding the records described in paragraph 5, above.

22.  In light of the foregoing conclusions, the Commission declines to address the respondents’ “preliminary drafts or notes” claim under §1-210(b)(1), G.S., herein.

 

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

1.  The case is hereby dismissed.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 22, 2009.

 

 

________________________________

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 Glidden and the Connecticut

State Employees Association

760 Capitol Avenue

Hartford, CT 06106

 

Commissioner, State of Connecticut,

Department of Environmental Protection,

Human Resources Division; and

State of Connecticut, Department of

Environmental Protection, Human

Resources Division

c/o Melinda M. Decker, Esq. and

Melisa Chan, Esq.

Department of Environmental Protection

79 Elm Street

Hartford, CT 06106-5127

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2008-525FD/paj/7/27/2009