FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on June 15, 2009, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  At the conclusion of the hearing on June 15, 2009, the complainant requested the imposition of a civil penalty against the respondents.  The Hearing Officer ordered that the matter be continued for hearing on whether to recommend the imposition of a civil penalty.  Such hearing was held on October 8, 2009, at which time the respondents were present but the complainant did not appear.  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 on March 4, 2009, the complainant made a written request for copies of records, including:

 

a.       copies of his academic student file;

 

b.      criteria used for awarding scholarships and work study programs;

 

c.       records relating to the admissions/selection process for the physical therapy assistant program, including the mathematical formula used for calculating academic values awarded for math and science courses;

 

d.      records relating to the academic ranking for each student that applied to the physical therapy assistant program, including overall grade point average and final letter grades for scores in math and science;

 

e.       records relating to the ethnic ratio of the number of students of African-American descent who applied to the physical therapy assistant program.  

 

3.      It is found that on March 6, 2009, the respondent Director of Human Resources sent a letter to the complainant, acknowledging receipt of the complainant’s request and promising that the respondents would provide all available records as promptly as possible.

 

4.      On March 25, 2009, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with any of the records he requested, described in paragraph 2, above.

 

5.      Section 1-200(5), G.S., in relevant part, defines “public records” as follows:

 

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, …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:

 

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 inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212.

 

7.      Section 1-212(a), G.S., provides:  “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

8.      It is concluded that the records requested by the complainant, to the extent that they exist, are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

9.      It is found that the respondent Director of Human Resources, as the FOI liaison at Naugatuck Valley Community College, was responsible for coordinating the agency’s response to the complainant.  It is found that when the Director of Human Resources received the complainant’s request, he asked the directors of various departments to provide him with copies of records they maintained that would be responsive to the complainant’s request. 

 

10.  It is found that, by the time of the hearing in this matter on June 15, 2009, the respondent Director of Human Resources had received many copies of records that were responsive to the complainant’s request, some of which had been redacted to remove personally identifying information, pursuant to the Family and Education Records Privacy Act (“FERPA”).

 

11.    It is found, however, that the respondent Director of Human Resources had not provided any copies of records to the complainant.  It is found that the Director intended to provide all the copies of records that were responsive to the request to the complainant at once, instead of in a piecemeal fashion.

 

12.    It is found that, following the hearing in this matter of June 15, 2009, the respondents provided all the copies of records they maintained that were responsive to the complainant’s request, described in paragraph 2, above.  It is found that some of the records were redacted to remove personally identifying information.  It is found that the respondents provided the records serially, on three occasions:  June 18, 2009; July 8, 2009; and July 18, 2009.

 

13.   The meaning of the word “promptly” is a particularly fact-based question that has been previously addressed by the FOI Commission.  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.

 

14.      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.

 

15.      It is found that, while some of the records requested required a significant amount of time and personnel to gather and redact, others – such as the complainant’s own student file and various handbooks, policy statements, and summaries – did not.  It is found that the respondents’ decision not to provide copies of records as they became available delayed the promptness of their response.

 

16.     It is further found that the respondent Director of Human Resources was unfamiliar with FERPA and with the types of records requested by the complainant.  It is further found that the directors of the various departments that maintained the records requested by the complainant did not know their responsibilities under the FOI Act.

 

17.     It is found, however, that unfamiliarity with the FOI Act is not a factor in determining whether an agency’s response was prompt.

 

18.     Based on the facts and circumstances of this case, it is concluded that the respondents violated the promptness requirements of §§1-210(a), and 1-212(a), G.S., in this matter.

 

19.     With respect to the complainant’s request for the imposition of a civil penalty, §1-206(b)(2), G.S., provides, in relevant part:

 

…upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.

 

20.     It is found that the respondent Director of Human Resources was the official directly responsible for the College’s failure to comply promptly with the complainant’s request for copies of records.  It is further found that the failure was without reasonable grounds.

 

21.     Nevertheless, the Commission in its discretion declines to impose a civil penalty in this matter.  The Commission notes that the respondents have provided the complainant with the records he requested.  The Commission further notes that the complainant did not appear at the October 9, 2009 hearing on whether to impose a civil penalty against the respondents.  Finally, the Commission notes that the respondents have agreed to attend an FOI training workshop.

 

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 comply with the promptness requirements of §§1-210(a) and 1-212(a), G.S.

 

2.          The respondent Director of Human Resources shall attend a FOI workshop to be conducted by a member of the Commission’s staff.  The Director shall encourage directors of other departments of the Naugatuck Valley Community College to attend.  The respondent Director or his designee should contact the Commission’s office to arrange the workshop.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 2, 2009.

 

 

____________________________

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:

 

Kacey Lewis

122 Parkview Street

Meriden, CT 06451

 

Director of Human Resources,

State of Connecticut,

Naugatuck Valley Community College;

and State of Connecticut,

Naugatuck Valley Community College

C/o Emily V. Melendez, Esq.

Assistant Attorney General

55 Elm Street

P.O. Box 120

Hartford, CT 06141

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-170FD/sw/12/8/2009