In the Matter of a Complaint by                        Final Decision


Kenneth Lerman and Laura E. Lerman,




                against                   Docket #FIC 94-374


Newtown Board of Education,


                                Respondent                          October 11, 1995


                The above-captioned matter was heard as a contested case on May 23, 1995, at which time the complainants and the respondent 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 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 October 21, 1994, the complainants appealed to the Commission, alleging that the respondent had failed to comply with their October 2, 1994 request for documents, and requesting the imposition of civil penalties against the respondent.


                3.             It is found that the complainants by letter dated October 2, 1994 registered a series of complaints, concerns and questions with the respondent, interspersed with requests for records.


                4.             It is found that the complainants' ten-page letter included requests for copies of minutes, portions of teacher observation reports, teacher recommendations, schedules, status reports, forms, announcements, job descriptions, evaluations, audit reports, administrative procedures, and other records.


                5.             It is found that the chairman of the respondent replied by a letter dated October 3, 1994, asking for the complainants' patience.


                6.             It is found that by letter dated October 26, 1994 the complainants reiterated their request for the copies requested in their October 2, 1994 letter.


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                7.             It is found that the complainants met with staff of the respondent on November 11, 1994, at which time the complainants were provided with copies of certain records responsive to their October 2, 1994 request.


                8.             It is found that the records provided to the complainants comprised more than 100 pages; that the superintendent of schools, who assumed primary responsibility for meeting the complainants' request, was unusually busy with other activities; that the superintendent and other employees of the respondent spent over 60 hours compiling the records and meeting with the complainants; and that the complainants did not communicate to the respondent an urgent need for the requested records.


                9.             It is therefore concluded under the facts of this case that the records provided on November 1, 1994 were provided promptly, within the meaning of 1-15(a) and 1-19(a), G.S.


                10.           The complainants maintain that they still have not received the following documents:


                                a.             For the past two years, the portion of the written observation of each teacher in Newtown High School limited to the the date, time, identification of the observer, and the signatures of the observer and teacher if contained in the form;


                                b.             For the past five years, the annual recommendation report for each teacher recommended for dismissal or for rehiring with no salary increment or increase;


                                c.             For the previous year, any status reports showing what had been done in the area of curriculum development;


                                d.             The most recent evaluation of the superintendent, including the superintendent's self-evaluation instrument, each board member's appraisal instrument, and the board's annual written performance report;


                                e.             The minutes of any meeting at which the respondent changed its policy requiring an annual written building inspection;


                                f.              The most recent documents from the Newtown school principals recommending changes in fees, the minutes of the most recent meetings at which the respondent reviewed such changes; and the most recent schedule of fees.


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                11.           With respect to the document identified in paragraph 10a, above, the respondent maintains that such observation reports are exempt from dislosure as teacher evaluations.


                12.           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....  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.


                13.           It is found that no teachers consented to the release of the observation reports.


                14.           It is found, however, that the portions of the teacher observation reports requested by the complainants, which are limited to documenting the occurrence of the observation, and which do not document the substance of the observation, do not contain evaluative information.


                15.           It is therefore concluded that the portions of the observation reports requested by the complainants are subject to the provisions of 1-19, G.S., notwithstanding 10-151c, G.S.  Ottochian v. FOIC, 221 Conn. 393 (1992).


                16.           It is concluded that the portions of the observation reports requested by the complainants are public records within the meaning of 1-18a(d) and 1-19(a), G.S.


                17.           Although the respondent made no express claim of exemption pursuant to 1-19(b)(2), G.S., it is found that disclosure of information that would document the occurrence of teacher evaluations is of legitimate public interest, would not be highly offensive to a reasonable person, and would therefore not constitute an invasion of personal privacy pursuant to 1-19(b)(2), G.S.


                18.           It is concluded that the respondent violated 1-15(a) and 1-19(a), G.S., by failing to provide copies of the limited portions of the observation reports requested by the complainants.


                19.           With respect to the documents described in paragraph 10b, above, it is found that the respondents failed to present any evidence demonstrating that such records contained


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evaluative information in whole or part, or to prove that the contents of such documents are otherwise exempt from disclosure.


                20.           It is therefore concluded that the respondent violated 1-15(a) and 1-19(a), G.S., by failing to disclose the requested annual recommendation reports.


                21.           With respect to the record described in paragraph 10c, above, it is found that the respondent provided an annotated copy of a curriculum development plan, indicating which curriculum development goals were completed in 1993-94 and which were moved to the following year.


                22.           It is found that the record provided to the complainants is the only such status report maintained by the respondent.


                23.           With respect to the documents identified in paragraph 10d, above, the complainants maintain that although they received the most recent evaluation of the superintendent, they did not receive the other documents, consisting of the superintendent's self-evaluation, and the board members' individual evaluations of him.


                24.           It is found that the respondent by letter dated November 18, 1994 indicated that the superintendent's self-evaluation was available to the complainants at the respondent's office.


                25.           With respect to the issue of the board members' individual evaluations, the respondent maintains that the only relevant records are the individual board members' notes concerning the superintendent's self-evaluation, which they brought to the appropriate meeting to discuss.


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                26.           It is found that the respondent failed to prove that the individual board members' notes, which appear to be required by the board's own policy, are exempt from disclosure.


                27.           It is therefore concluded that the respondent violated 1-15(a) and 1-19(a), G.S., by failing to provide copies of the relevant notes.


                28.           With respect to the document described in paragraph 10e, above, it is concluded that to find such minutes would require research not required by the FOI Act.


                29.           With respect to the various documents described in paragraph 10f, above, the complainants maintain that the records provided to them were not responsive to their request, because the documents postdate the complainants' request.


                30.           Specifically, the complainants argue that, at the time of their request, they wanted any responsive documents that already existed.


                31.           It is found that some of what the complainants were requesting were minutes which would require research to find.


                32.           It is also found that the records actually provided to the complainants had not been completed at the time of the request, but were provided when completed.


                33.           It is found that the records provided to the complainants were reasonably responsive to their request.


                34.           The Commission notes that the complainants are free to seek additional documents if they need more information.


                35.           The Commission in its discretion declines to impose a civil penalty against the respondent.


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


                1.             The respondents shall forthwith conduct a diligent search for the the records described in paragraphs 10a, 10b, and 25 of the findings, above, and provide to the complainants copies of any such records located.  If the respondents are unable to locate any such records, they shall provide to the complainants and to the Commission an affidavit that describes in detail the steps taken to search for the records, including the locations searched, the time spent searching, and the personnel who undertook the search.


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Approved by Order of the Freedom of Information Commission at its regular meeting of October 11, 1995.



                                                                Elizabeth A. Leifert

                                                                Acting Clerk of the Commission


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Mr. Kenneth Lerman

Ms. Laura E. Lerman

55 Main Street

Newtown, CT 06470


Newtown Board of Education

c/o Frederick L. Dorsey, Esq.

Siegel, O'Connor, Schiff & Zangari, P.C.

171 Orange Street

New Haven, CT 06510



                                                                Elizabeth A. Leifert

                                                                Acting Clerk of the Commission