FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION

 

James D. Contino, Sr. And Diane M. Contino,

 

Complainants

 

against Docket #FIC 87-130 and Docket #FIC 87-132

 

Groton Superintendent of Schools and Groton Board of Education,

 

Respondents August 26, 1987

 

The above-captioned matters were heard as contested cases on June 11, 1987, at which time the complainants and the respondents 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:

 

1. The respondents are public agencies within the meaning of 1-18a(a), G.S.

 

2. By letter dated March 23, 1987 the complainant Diane Contino made a request of the respondent superintendent for copies of the following documents concerning Jack Kelley, a teacher at West Side Junior High School in Groton:

 

a) Any and all letters of reprimand or caution contained in Mr. Kelley's personnel file, including a letter of reprimand issued by the principal of West Side Junior High School, Robert Strouse, regarding incidents involving one of the complainants' children; and

 

b) A "schedule" prepared by Mr. Strouse concerning Mr. Kelley's future conduct.

 

3. By letter dated March 25, 1987 the respondent superintendent, without admitting the existence of the requested documents, denied Mrs. Contino's request, citing "a statute . . . dealing with the privacy of evaluation files" and 1-19(b)(2), G.S.

 

4. By letter dated March 27, 1987 the complainant James D. Contino, Sr. requested a specific reference to the statute dealing with evaluation files. Mr. Contino further requested the following documents:

 

Docket #FIC 87-130 and 87-132 Page Two

 

a) Mr. Kelley's application for employment in the Groton school system;

 

b) All resumes of Mr. Kelley on file with the respondent board;

 

c) All evaluations of Mr. Kelley as a teacher for the respondent board;

 

d) A blank employment application substantially representing the form utilized when Mr. Kelley was employed by the respondent board; and

 

e) A blank evaluation form of the type utilized to evaluate Mr. Kelley, together with any instructions as to its completion.

 

5. By letter dated April 3, 1987 the respondent superintendent provided Mr. Contino with blank copies of a professional employment application and a teacher evaluation data form.

 

6. By letter dated April 15, 1987 Mr. Contino made a request of the respondent superintendent for copies of the following documents:

 

a) Mr. Strouse's application for employment with the respondent board;

 

b) All resumes in Mr. Strouse's personnel file;

 

c) All evaluations in Mr. Strouse's personnel file;

 

d) Any letters of censure or reprimand issued to Mr. Strouse or Mr. Kelley; and

 

e) The agenda and minutes of the respondent board's April 13, 1987 regular meeting.

 

7. By letter dated April 20, 1987 the respondent superintendent supplied Mr. Contino with the agenda for the respondent board's April 13, 1987 meeting and stated that the minutes would be sent as soon as they were officially approved. The respondent superintendent, without admitting the existence of the records, denied Mr. Contino's request for copies of letters of censure or reprimand and also denied his request for Mr. Strouse's employment application, resume and evaluations.

 

Docket #FIC 87-130 and 87-132 Page Three

 

8. By letter of complaint filed with the Commission on April 27, 1987 and docketed as #FIC 87-130 the complainants appealed the respondents' denial of their requests for records, including the minutes of the respondent board's April 13, 1987 meeting. The complainants further alleged that the agenda for the April 13, 1987 meeting, listing "personnel matter" as an item, was insufficiently specific and that the individual discussed in the executive session may not have been afforded the rights provided by 1-18a(e)(1), G.S.

 

9. By letter to the Commission dated April 29, 1987 and filed on May 4, 1987 the complainants stated that they had received a copy of the minutes of the April 13, 1987 meeting from the Groton Town Clerk, with whom they had been placed on file April 28, 1987. Such letter, docketed as FIC #87-132, did not add any allegations to those already raised in FIC #87-130 and the two matters were therefore consolidated at hearing.

 

10. At hearing Mr. Kelley, Mr. Strouse and the Association of Groton Administrators moved to be named as parties to the above matter. Such motions were denied and, instead, each was granted intervenor status to participate at the hearing level only, with the opportunity to renew their requests for party status at a later date.

 

11. Also at hearing Mr. Kelley, Mr. Strouse and the Association of Groton Administrators requested that Henry Buermeyer, designated by the complainants as a representative, be prohibited from speaking on the complainants' behalf, on the ground that he is not an attorney. Such request was denied.

 

12. Following presentation of evidence by the complainants, which did not include oral testimony, the respondents and the intervenors moved to dismiss the matter on the ground that the complainants failed to prove the allegations of their complaint, which motion was denied.

 

13. It is found that the respondent superintendent failed to provide the complainants with a copy of the minutes of the April 13, 1987 meeting promptly upon request, in violation of 1-15 and 1-19(a), G.S.

 

14. It is further found that the respondent board failed to make available for public inspection, within 7 business days, the minutes of its April 13, 1987 meeting, in violation of 1-21(a), G.S.

 

15. It is found, and was admitted by the respondent board, that the agenda item "personnel matter" violated the notice

 

Docket #FIC 87-130 and 87-132 Page Four

 

requirements of 1-21(a), G.S. in that it was not sufficiently specific. The respondent board stated at hearing that it has taken steps to ensure that its agendas will be more specific in the future.

 

16. The respondent board also stated that the subject of the executive session was Mr. Kelley and that Mr. Kelley was notified of the proposed executive session, as required by 1-18a(e)(1), G.S., through his attorney.

 

17. At hearing the respondent board agreed to provide the complainants with copies of the employment applications of both Mr. Kelley and Mr. Strouse, referred to at paragraphs 4(a) and 6(a), above.

 

18. It is found that the records referred to at paragraphs 4(a) and 6(a), above, are public records within the meaning of 1-18a(d), G.S., subject to public disclosure, and that failure to promptly provide the complainants with copies of such records violated 1-15 and 1-19(a), G.S.

 

19. It is found that the respondents do not have on file any resumes for either Mr. Kelley or Mr. Strouse, referred to at paragraphs 4(b) and 6(b), above.

 

20. It is found that the record referred to at paragraph 2(b), above, does not exist.

 

21. Section 10-151c, G.S. provides that "[a]ny records maintained or kept on file by any local or regional board of education which are records of teacher performance and evaluation shall not be deemed to be public records and shall not be subject to the provisions of section 1-19 . . . For the purposes of this section the term 'teacher' shall include each certified professional employee below the rank of superintendent employed by a board of education in a position requiring a certificate issued by the state board of education."

 

22. It is concluded that the records referred to at paragraphs 4(c) and 6(c) are exempt from disclosure pursuant to 10-151c, G.S.

 

23. The respondents also claim that the records referred to at paragraphs 2(a) and 6(d), above, are records of performance and evaluation, exempted from disclosure by 10-151c, G.S.

 

24. It is found that letters of reprimand are issued, as necessary, by the respondent superintendent to indicate

 

Docket #FIC 87-130 and 87-132 Page Five

 

dissatisfaction with a teacher's performance. Such letters are generally based upon incidents or observations which occur outside of the context of the evaluation process mandated by 10-151b, G.S.

 

25. It is further found that letters of reprimand record negative aspects of teachers' performance and are used to establish professional goals and to make decisions regarding employment contracts.

 

26. It is concluded that the records referred to at paragraphs 2(a) and 6(d), above, to the extent that any exist, are records of teacher performance and evaluation within the meaning of 10-151c, and are therefore exempted from disclosure pursuant to such statute.

 

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

 

1. The respondent superintendent henceforth shall act in strict compliance with the requirements of 1-15 and 1-19(a), G.S. regarding prompt access to public records, including minutes of meetings.

 

2. The respondent superintendent forthwith shall provide the complainants with copies of the documents referred to at paragraphs 4(a) and 6(a) of the findings, above.

 

3. The respondent board henceforth shall make available for public inspection the minutes of its meetings within 7 business days of such meetings, as required by 1-21(a), G.S.

 

4. The respondent board henceforth shall ensure that its agendas provide adequate notice to the public of the business to be conducted at its meetings, as required by 1-21(a), G.S.

 

Approved by order of the Freedom of Information Commission at its regular meeting of August 26, 1987.

 

 

Catherine I. Hostetter

Acting Clerk of the Commission