FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Claudia Van Nes and the Pictorial Gazette,
against Docket #FIC 91-262
Regional School District 18, Board of Education,
Respondent August 12, 1992
The above-captioned matter was heard as a contested case on January 3, 1992, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. Docket #FIC 91-259, Christine Woodside and The Day vs. Regional School District 18, Board of Education was consolidated for hearing with the above-captioned matter.
At the hearing on these matters, motions for party status were filed on behalf of the Connecticut Association of Boards of Education ("CABE"), and on behalf of the Connecticut Association of Public School Superintendents ("CAPSS"). Pursuant to 4-177a(b) and 1-21j-28(a) of the Regulations of Connecticut State Agencies, the hearing officer granted each of the organizations intervenor status for purposes of full participation during the hearing. The motions for party status filed by CABE and CAPSS are hereby denied.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent is a public agency within the meaning of 1-18a(a), G.S.
2. By letter of request dated August 1, 1991, the complainants requested a copy of the respondent's most recent evaluation of school superintendent Julius D'Agostino (hereinafter "superintendent").
3. By letter dated August 7, 1991, the respondent acknowledged receipt of the complainants' document request, and informed the complainants that it had notified the superintendent of the request and would await his response to notification before "developing a definitive answer."
Docket #FIC 91-262 Page Two
4. It is found that by written "notice of objection" dated August 13, 1991, the superintendent objected to release of his evaluation.
5. It is found that relying upon the superintendent's written objection to disclosure of his evaluation, the respondent denied the complainants' request by letter dated August 15, 1991.
6. By letter of complaint dated August 22, 1991, the complainants alleged that the respondent unlawfully withheld disclosure of the evaluation.
7. Section 10-157(a), G.S., requires a board of education to conduct an annual review of a superintendent's performance.
8. It is found that the respondent and the superintendent agreed upon the format for the evaluation and the areas of performance that would be evaluated, in accordance with 10-157(a), G.S.
9. It is found that the members of the respondent board met in lawfully convened executive sessions on at least two occasions to discuss the superintendent's evaluation.
10. It is found that at the first executive session members of the respondent board made personal notes that became the basis for the draft evaluation.
11. It is found that the notes of members of the respondent board were subsequently destroyed after the initial draft of the evaluation was created.
12. It is found that copies of the final form of the evaluation was circulated to, and reviewed by all members of the respondent board before being returned to the chairman of the respondent board.
13. It is found that this typed summary of the respondent's evaluation of the superintendent is the record sought by the complainants.
14. It is found that the superintendent's evaluation is a public record within the meaning of 1-18a(d), G.S.
15. The subject record has been submitted to the Commission for in camera inspection.
Docket #FIC 91-262 Page Three
16. It is found that the requested record is an evaluation of specific areas of the superintendent's performance and contains some information that is critical of him.
17. The respondent argues that a superintendent does not surrender his right to have the most private parts of his personal performance evaluation kept private.
18. The intervenors argue that disclosure of a superintendent's evaluation will not further the public's interest, but will "inhibit the ability of boards of education to conduct superintendent evaluations and to support improved performance."
19. While the employment of a superintendent is by election of a board of education, 10-157(a), G.S., states in relevant part that "...[t]he superintendent shall have executive authority over the school system and the responsibility for its supervision....."
20. As the chief executive officer of a local or regional board of education, a superintendent of public schools serves an extremely important function administering and structuring the curriculum that provides for the education and well-being of children and young adults.
21. By virtue of the foregoing, and given the fact that public school education in Connecticut commands a significant portion of public funds, there is a reasonable and legitimate public interest in records that document the performance of public school superintendents.
22. It is found that access to information that may be evaluative of the superintendent's performance is a necessary means by which the public can determine whether or not the individual chosen by the respondent to govern its public school system should remain in that position.
23. In addition, 10-157(a), G.S., neither provides that the performance evaluations of superintendents are not public records nor exempts such records from public disclosure.
24. The superintendent appeared at the hearing to argue that 1-19(b)(2), G.S., and Chairman, Criminal Justice Commission, Et Al. v. FOIC, Et Al., 217 Conn. 193 (1991), preclude disclosure of his evaluation.
Docket #FIC 91-262 Page Four
25. The Commission takes administrative notice of its final decisions in contested case docket #s FIC 85-61, Ann Dematteo, Ben Engel and Jackson Newspapers v. Board of Education of the City and Town of New Haven, and FIC 88-461, Lance Johnson, Lynn Bonner & The Day v. Chairman, East Lyme Board of Education, as affirmed by the Superior Court in East Lyme Board of Education v. FOIC, Et Al., No. CV 90-700617, Super. Ct., J.D. of Hartford-New Britain at Hartford (Memo. of Dec. dated January 23, 1991, Clifford, J), which required disclosure of the superintendent evaluations at issue.
26. In Chairman, there was no dispute that the merit and performance evaluation of then state's attorney, John Connelly, was maintained solely in a personnel file within the meaning of 1-19(b)(2), G.S.
27. It is found that with the exception of two copies of the evaluation, all existing copies of the evaluation were destroyed.
28. It is found that although the members of the respondent board destroyed their copies of the evaluation, the chairman of the respondent board maintains one copy of the evaluation and the other copy of the record is kept in the superintendent's personnel file.
29. It is found that the respondent failed to prove that the copy of the superintendent's evaluation kept by the chairman of the respondent board is exempt from disclosure pursuant to any provision of Connecticut's Freedom of Information Act.
30. It is found that the requested evaluation is not a personnel file within the meaning of 1-19(b)(2), G.S.
31. It is concluded that neither 1-19(b)(2), G.S., nor the guidance provided by the Court in Chairman is applicable under the facts of this case.
32. It is concluded that under the facts of this case, the respondent violated 1-15 and 1-19(a), G.S., when it failed to provide the complainants with the requested record promptly upon request.
Docket #FIC 91-262 Page Five
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Forthwith the respondent shall comply with the complainants request for a copy of the evaluation.
Approved by Order of the Freedom of Information Commission at its regular meeting of August 12, 1992.
Debra L. Rembowski
Acting Clerk of the Commission
Docket #FIC 91-262 Page Six
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:
Claudia Van Nes and the Pictorial Gazette
c/o Michelle Moran
162 Main Street
P.O. Drawer O
Old Saybrook, CT 06475
Regional School District 18 Board of Education
c/o Attorney Donald W. Strickland
Siegel, O'Conner, Schiff
370 Asylum Street
Hartford, CT 06103
Debra L. Rembowski
Acting Clerk of the Commission