FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Dick Conrad and New Haven Register,
against Docket #FIC 93-229
Superintendent, Ansonia Public Schools,
Respondent December 22, 1993
The above-captioned matter was heard as a contested case on November 17, 1993, at which time the complainants and the respondent appeared, stipulated to certain facts and an exhibit, and presented argument on the complaint.
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 complaint filed August 31, 1993, the complainants appealed to the Commission, alleging that their request for the respondent superintendent's evaluation had been denied by her.
3. It is found that the complainants requested from the respondent superintendent on August 17, 1993 a copy of the last completed evaluation of her.
4. It is found that the respondent superintendent denied the request on August 20, 1993.
5. It is concluded that the requested evaluation is a public record within the meaning of 1-18a(d) and 1-19(b)(2), G.S.
6. The respondent maintains that the requested evaluation is exempt from disclosure pursuant to 1-19(b)(2), G.S.
7. Section 1-19(b)(2), G.S., provides that nothing in the Freedom of Information ("FOI") Act requires disclosure of "personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy."
8. The complainant maintains that the applicable disclosure statute is 10-151c, G.S., not 1-19(b), G.S.
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9. Section 10-151c, G.S. provides:
Any 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, provided that any teacher may consent in writing to the release of his records by a board of education. Such consent shall be required for each request for a release of such records. 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.
10. It is concluded that 10-151c, G.S., is part of the statutory scheme that regulates the circumstances under which a public agency must make its records available to the public for inspection or copying.
11. It is also concluded that specific terms covering a given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling. Gifford v. Freedom of Information Commission, 227 Conn. 641, 652 (1993).
12. It is concluded that the language of 10-151c, G.S., covers the subject matter of records of performance and evaluation of employees of boards of education, and that the specific terms of the statute explicitly delineate among certified and noncertified employees, professional and nonprofessional employees, and employees of or below the rank of superintendent.
13. It is therefore concluded that 10-151c, G.S., unlike 1-19(b)(2), G.S., is a statute of specific application with respect to records of the evaluation of a superintendent of schools.
14. It is also concluded that 10-151c, G.S., does not exempt records of the evaluation of a superintendent of schools from disclosure.
15. The respondent nonetheless maintains that the general statute, 1-19(b)(2), G.S., and not the specific statute, 10-151c, should apply to records of the evaluation of a superintendent.
16. It is found that the respondent failed to prove that the requested evaluation is part of a personnel or similar file within the meaning of 1-19(b)(2), G.S.
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17. However, the respondent still maintains that disclosure of the requested evaluation is not required if she has a reasonable expectation of privacy in the evaluation, pursuant to Chairman v. Freedom of Information Commission, 217 Conn. 193 (1991).
18. In sole support of her claim, the respondent presented as evidence a clause of the contract of employment between her and the Ansonia board of education, which provides:
The Board and the Superintendent mutually recognize and agree that the written evaluations of the Superintendent will be treated as confidential documents which will not be subject to disclosure to any party other than Board members and the Superintendent, unless authorized in writing by the Superintendent, or as required by law. It is only through the frank and candid exchange between evaluating Board members and the Superintendent that improvements in the Superintendent's performance may be expected to result from the evaluation process. The evaluating Board members and the Superintendent, therefore, agree to honor the private nature of the Superintendent's written evaluation in order to allow for a free exchange of comment and critique. The Superintendent's privacy rights with respect to her written evaluations will be respected at all times, subject only to those disclosure that may be required by legal process.
19. It is concluded Chairman affirms the application of two criteria for determining whether an invasion of privacy within the meaning of 1-19(b)(2), G.S., may result from disclosure of a personnel record: (1) whether "disclosure of the [record] would carry significant potential for embarrassment;" and (2) whether the subject of the record "entertained a reasonable expectation of privacy in the information contained in the evaluation."
20. It is found that the contractual provision indicates that the respondent had a subjective expectation of privacy in her evaluation.
21. However, it is also found that the respondent offered no evidence to prove that disclosure of the requested evaluation would actually create a significant potential for embarrassment her.
22. It is also concluded that whether a subjectively held expectation of privacy is reasonable or not depends upon an objective standard of reasonableness, and not upon whether the public agencies that enter into a contract bilaterally agree to keep a record confidential based upon their mutual expectations.
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23. Section 10-157(a), G.S., provides in relevant part that a superintendent of schools "shall serve as chief executive officer of the board [of education]" and "shall have executive authority over the school system and the responsibility for its supervision."
24. The Commission takes administrative notice of the fact that a superintendent of schools serves an extremely important function administering and structuring the curriculum that provides for the education and well-being of children and young adults, and managing the personnel and other resources of the school system.
25. The Commission also takes adminstrative notice of the fact that public school education in Connecticut commands a significant portion of public funds.
26. It is therefore concluded that a reasonable person would not expect the evaluation of a superintendent of schools to be withheld from the public, especially in light of the provisions of 10-151c, G.S..
27. It is also found that the respondent failed to prove that a reasonable person would be embarrassed by the disclosure of the requested evaluation.
28. It is therefore concluded that the requested evaluation is not exempt from disclosure pursuant to 1-19(b)(2), G.S.
29. It is therefore concluded that the respondent violated 1-15 and 1-19(a), G.S., by failing to provide to the complainants a copy of the requested evaluation.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Within one week after the mailing of the final decision in this matter, the respondent shall provide to the complainants a copy of the requested evaluation.
2. Henceforth the respondent shall strictly comply with the requirements of 1-15, 1-19, and 10-151c, G.S.
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Approved by Order of the Freedom of Information Commission at its regular meeting of December 22, 1993.
Elizabeth A. Leifert
Acting Clerk of the Commission
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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:
Mr. Dick Conrad and
New Haven Register
40 Sargent Drive
New Haven, CT 06511-5918
Superintendent, Ansonia Public Schools
c/o Thomas N. Sullivan, Esq.
646 Prospect Avenue
Hartford, CT 06105
Elizabeth A. Leifert
Acting Clerk of the Commission