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FREEDOM OF INFORMATION COMMISSION |
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In
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Advisory Opinion #36 |
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Commissioner of Education, Applicant |
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June 18, 1979 |
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On February 14, 1979, the Commission considered and agreed to respond to the request for an advisory opinion filed by the State Commissioner of Education.
In his request, the applicant states that the Connecticut Board of Education (hereinafter referred to as the "Board") is mandated by Conn. Gen. Stats. §10-76b (d) to monitor and evaluate all special education programs for exceptional children in the State. Enactment and implementation of this statute helps confer eligibility,
for the receipt of federal funds directed to the education of the handicapped. See 20 U.S.C. §1401 et seq., as amended by P.L. 94-142, and the regulations promulgated thereunder.
In fulfilling its responsibilities under these laws, the Board has developed a technically sophisticated and comprehensive "Compliance Review System" (hereinafter referred to as the "CRS"). The procedures and materials for the CRS are contained in a manual enclosed with the applicant's letter of request. All Connecticut towns and agencies charged with the education of handicapped children will be reviewed under the CRS over a three-year cycle. As of January 30, 1979, 73 school districts already have been reviewed.
The manual itself sets forth an elaborate methodology that measures 22 compliance issues or standards. Essentially, under CRS, the State Department of Education (hereinafter referred to as the "Department") reviews each educational agency's written procedures and randomly selected children's school records. It also conducts interviews with program administrators and provides a questionnaire to be filled out by the special education and pupil services staff.
This questionnaire (which is reproduced in exemplar form on page 62 of the Manual) addresses only four of the 22 compliance issues. The person responding is asked to state his name, position, agency and the date. It then presents essentially the following questions and answer categories:
1. Is each handicapped student in your
agency programmed in the least restrictive environment?
Always _____ Not Always _____ Don't Know _____
2. Has the agency made all academic and
nonacademic programs available to handicapped students?
Always _____ Not Always _____ Don't Know _____
3. Is each handicapped student and each student suspected of being handicapped provided evaluation and services without undue delay? Yes _____ No _____ Don't Know _____
4. Does the agency provide sufficient school time to consult with other staff members and parents? Always _____ Not Always _____ Don't Know _____
When completed, the questionnaire is sealed in an envelope and placed in the Department's mailbox located in each district superintendent's office.
In order to ensure honest and valid responses to the questionnaire, the Board believes that individual answers ought to be confidential. Consequently, it provides such assurance, and discloses only aggregate responses in its final report which is made public.
In light of the above, the applicant seeks the Commission's opinion to the following question:
"May the State Department of Education continue to guarantee the confidentiality of personally identifiable responses to the questionnaire?"
The Commission is unaware of any state statute or applicable federal law that either requires or permits the confidentiality of completed individual questionnaires. In this regard, there is also no explicit exemption to public disclosure under the Freedom of Information Act. Thus, once this questionnaire is returned to the Department, it is a public record under Conn. Gen. Stats. §§1-18a (d) and 1-19 (a), and subject to disclosure upon request in accordance with Conn. Gen. Stats. §§1-15 and 1-19 (a).
The Commission recognizes the Board's concern that responses to the questionnaire must be honest to be valid. On the other hand, the fundamental policy in Connecticut, as embodied in the Freedom of Information Act, is that the records of all public agencies be open, except in those instances where a superior public interest requires confidentiality. Senate Proceedings, 1975 General Assembly, p. 2324.
From the material submitted, it is far from clear that disclosure of a completed questionnaire, personally identified, would require confidentiality in the public interest. In fact, it seems rather speculative that such a disclosure would have a "chilling effect" on the truthfulness of any response. The persons filling out the questionnaire are professional educators, in all likelihood dedicated to their calling and having a proper sense of integrity. Also, any answer indicating less than satisfactory compliance presumably would be verified by the Department. Likewise, a perusal of the CRS reveals that the questionnaire merely aids the Department in identifying problem areas. The random check of records, personnel interviews and a comparison among completed questionnaires submitted by other staff members also help identify and verify non-compliance. Indeed, the sample final report (reproduced starting on page 24 of the manual) makes clear that the entire CRS is designed only to identify defects in compliance and to recommend measures that would remedy the situation. The report does not assign culpability or suggest disciplinary action.
In any event, it is the Commission's opinion that any superior public interest requiring or permitting the non-disclosure of the subject questionnaire would be for the legislature to determine; and thereupon to create a specific grant of confidentiality. This is the statutory scheme established under Conn. Gen. Stats. §51-19 (a) and (b) for those record deemed privileged in the public interest. In the absence of such a provision, the overriding policy in favor of public disclosure must prevail. Therefore, it is the Commission's opinion that the question quoted on page 2, supra, must be answered in the negative.
If open government in Connecticut is to be realized, the Commission believes that it is incumbent upon all public officials to seek valid alternatives to non-disclosure. For instance, it might be more appropriate in the case of the questionnaire to assure those responding that they will be protected from unjustified retribution or censure for their honest assessment than to assure blanket confidentiality, even when it is unnecessary. In this regard, the Commission commends the applicant for requesting this advisory opinion. In doing so, he has shown a sensitivity to the requirements of the Freedom of Information Act while treating his concerns openly and with candor.
By Order of the Freedom of
Information Commission
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Judith A. Lahey, Chairman of
of the Freedom of Information
Commission
Date _June 27, 1979_
Ordered_________________
Leslie Ann McGuire, Clerk of the Commission