FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
R. W. Russell,
against Docket #FIC 95-261
Hartford Personnel Department,
Respondent April 24, 1996
The above-captioned matter was heard as a contested case on January 31, 1996, at which time the complainant and the respondent appeared, 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. It is found that the complainant took the March 30, 1995 police sergeant's examination for the Hartford Police Department ("exam"), but is not on the eligibility list for successful candidates.
3. It is found that by letter dated July 3, 1995, the complainant requested that the respondent provide him with copies of the following information pertaining to the exam ("July request"):
a) the names and organizations represented by each member of the oral examination panel ("panel");
b) the make-up of each panel;
c) documents or correspondence concerning the testing process sent to panel members prior to the exam;
d) the scores of each applicant participating in the oral examination and the panel he or she attended; and
e) the scores of each applicant for the oral and written portions of the exam categorized by race and gender ("sex and race data").
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4. It is found that by reply letter dated July 14, 1995, the respondent enclosed copies of all documents not subject to a claim of exemption, and informed the complainant that because the documents had to be "generated by special means" he would be expected to pay labor costs or a "research fee" in addition to copying costs.
5. In its July 14, 1995 letter the respondent also advised the complainant that documents related to the method of scoring the oral exam were not being provided to him because they are exempt from disclosure pursuant to 1-19(b)(6), G.S.
6. It is found that by letter of request dated July 19, 1995, the complainant requested that the respondent provide him with copies of the following information concerning the exam:
a) the sex and race data of all oral exam candidates along with the scores of each such candidate and the date the score was given; and
b) any instruction given panel members concerning the method of scoring the oral exam.
7. It is found that by reply letter dated July 27, 1995, the respondent: restated the applicability of the exemption contained in 1-19(b)(6), G.S., to all scoring documents; indicated that the complainant had been provided with copies of the candidates oral scores; and enclosed copies of the non-exempt documents responsive to his request. Again the respondent advised the complainant that in addition to copying charges he had been assessed a "research fee".
8. It is found that by letter dated August 1, 1995 the complainant requested that the respondent provide him with copies of the following information pertaining to the exam ("August request"):
a) the minimum rating established by the respondent for the written and oral parts of the exam;
b) the list of eligibles with each individual's written and oral rating;
c) information pertaining to whether any applicant was permitted to participate in the exam process after failing to submit a timely application ("late applicants");
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d) the passing grade for the written part of the exam;
e) the formula used, if any, to round or curve testing scores; and
f) the following information for each eligible: sex and race data, panel attended, date of panel, and oral rating.
9. By reply letter dated August 4, 1995, the respondent enclosed the non-exempt documents and cited 1-19(b)(6), G.S., as the applicable exemption for any information not provided.
10. By letter of complaint dated and hand-delivered to this Commission on August 7, 1995, the complainant appealed the respondent's failure to fully comply with his records requests ("complaint"). In his complaint the complainant also stated that he had been charged "exorbitant amounts of money" for the copies of the records that the respondent provided.
11. It is found that the information provided to the complainant in response to his records requests was extracted and compiled from existing data by a single employee who also performed the programming and formatting functions necessary to provide the very specific information requested.
12. Nevertheless, at the hearing on this matter ("hearing"), the respondent agreed to reimburse the complainant for any monies charged and paid for labor costs or "research fees".
13. At the hearing the complainant conceded that each succeeding records request sought either different information or additional information from the one before it, thereby causing some confusion and delay on the part of the respondent.
14. At the hearing the complainant also acknowledged that the respondent had provided copies of all requested records with the exception of the following documentation for eligibles only:
a) the formula for grading the exam ("test key");
b) applications submitted after the closing date for the exam ("eligible applications");
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c) the panel number, and sex and race data; and
d) the list of eligibles with their written and oral rating.
15. With respect to the complainant's records requests as they relate to late applicants and eligible applications, it is found that in his August request the complainant specifically asked "[w]hether any applicants were allowed to participate in the testing process after failing to submit an application prior to the closing date for applications."
16. It is found that the respondent reasonably construed the August request concerning late applicants as a request for an answer to the question about whether or not there were any late applicants for the exam.
17. Connecticut's Freedom of Information ("FOI") Act imposes no statutory duty on a public agency to answer questions from members of the public. Nevertheless, at the hearing the respondent informed the complainant that there were late applicants.
18. At the hearing the respondent further informed the complainant that steps would be taken to ascertain the exact number of late applicants.
19. However, at the hearing the complainant indicated for the first time that he was seeking copies of the eligible applications, rather than the total number of late applicants for the exam.
20. It is found that the request for the eligible applications is not properly before the Commission at this time, since copies of those records were not requested as part of the complainant's July or August letters of request to the respondent.
21. It is concluded that the respondent's failure to disclose the eligible applications in response to the complainant's August request did not violate 1-15 or 1-19(a), G.S.
22. The respondent claims that 1-19(b)(6), G.S. permits it to withhold disclosure of the requested test key documentation.
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23. Section 1-19(b)(6), G.S., states in pertinent part that disclosure shall not be required of "test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examination."
24. It is concluded that the test key that the complainant is seeking is a scoring key used to administer an employment examination within the meaning of 1-19(b)(6), G.S., and is permissibly exempt from public disclosure.
25. The respondent claims that there is no document that presently exists which contains sex and race data for eligibles in the form requested by the complainant, and even if such a document could be created, disclosure of the requested sex and race data would constitute an invasion of the eligibles' privacy.
26. It is found that in response to the complainant's July and August requests for sex and race data, the respondent created and provided to the complainant a document containing the Equal Employment Opportunity Commission ("EEOC") codes for each exam applicant taking the written and oral portions of the exam. The EEOC code is a gender and/or racial classification code for each exam applicant.
27. It is found that after the document containing the EEOC codes was created and a copy provided to the complainant the document was not maintained as a permanent record by the respondent.
28. It is found that although the EEOC codes without any information of what each number means fail to provide the complainant with explicit sex and race data for either the applicants or eligibles, no other document exists which contains such information.
29. The FOI Act does not require the respondent to create a record that does not presently exist, therefore, it is concluded that the respondent did not violate 1-15 or 1-19(a), G.S., by failing to create a document in response to the complainant's request for more explicit sex and race data.
30. The Commission does not need to address the alternate grounds raised by the respondent for not providing the complainant with more explicit sex and race data for the eligibles.
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31. With respect to the complainant's request for the list of eligibles with their written and oral rating, it is found that that information exists as part of the respondent's eligible register for the exam.
32. It is found that the eligible register is a public record within the meaning of 1-18a(d) and 1-19(a), G.S.
33. It is concluded that the respondent violated 1-15 and 1-19(a), G.S., by failing to provide the complainant with the oral and written scores by name of each eligible as listed on the eligible register.
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 provide the complainant with a copy of its eligible register containing the names and oral and written score of each eligible, free of charge. The social security number, address and telephone number and EEOC code of each eligible may be redacted.
2. The complaint is hereby dismissed with respect to the remaining records requested.
Approved by Order of the Freedom of Information Commission at its regular meeting of April 24, 1996.
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:
R. W. Russell
355 Prospect Avenue
West Hartford, CT 06105
Hartford Personnel Department
c/o Ivan A. Ramos, Esq.
550 Main Street
Hartford, CT 06106
Elizabeth A. Leifert
Acting Clerk of the Commission