FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF
In the Matter of a Complaint by Final Decision
Vicky R. Francis and Don I. Francis,
against Docket #FIC1995-314
John Luciano, Principal, Robert E.
Fitch Senior High School and George
Reilly, Superintendent, Groton Public Schools,
Respondent(s) September 11, 1996
The above-captioned matter was heard as a contested case on March 28, 1996, at which time the complainant(s) and respondent(s) 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 respondents are public agencies within the meaning of §1-18a(a), G.S.
is found that by letter to respondent Luciano dated August 16, 1995 (“first
request”), the complainants requested the following information and/or records
relating to the health curriculum taught at Robert E. Fitch Senior High School
(“Fitch”), for each of the following
curriculum units: human wellness,
socialization, violence, substance abuse and sexuality:
a. papers and photocopied materials given to students;
b. list of discussion topics;
c. questionnaires, quizzes and other sources used for self-evaluation;
d. quizzes and tests used to evaluate students;
e. list of course requirements to pass the unit;
f. list of referral agencies, medical or other
personnel used to supplement written
g. measures employed to protect the students and/or their family members.
3. It is found that in addition to the information specified in paragraph 2 of the findings, above, the complainants also requested copies of the following information for the sexuality unit:
a. all sources for statistics pertaining to Fitch students;
b. the permission form for divulging any statistics about Fitch students;
c. access to all films, audiotapes, videotapes, and teaching and
d. full details of the health curriculum taught in Fitch’s required
e. measures employed to protect the students
and/or their family members
and/or “relationship partners”.
4. It is found that by letter to respondent Luciano dated August 24, 1995 (“amended request”), the complainants amended their first request to include a copy of the list of all courses “utilized to fulfill the state mandates for drug, alcohol, and sexuality [including] HIV/STD [requirements].”
5. It is found that on or about August 31, 1995, the complainants were provided with copies of some of the materials sought in their first and amended requests.
6. It is found that by letter to respondent Luciano dated August 31, 1995, the complainants advised the respondent that their first and amended requests had not been fully complied with; they restated their earlier requests, and also requested a legible copy of a quiz already provided.
7. It is found that by letter dated September 5, 1995, the complainants further requested that respondent Luciano provide them with copies of, or access to additional specified curriculum materials for Fitch’s mandatory health course.
8. It is found that by letter dated August 31, 1995, the complainants requested that respondent Reilly provide them with information relating to funding sources and disbursement of school funds for four academic years, 1991 through 1995.
9. It is found that by letter dated September 5, 1995, the complainants requested that respondent Reilly provide them with a copy of all information “submitted to the state to prove compliance with state mandates,” and access to the tapes used to transcribe the school board meetings from August 1992 to the present.
10. It is found that by reply letter dated September 12, 1995, the respondents advised the complainants that of the thirty-three pieces of information requested, the following had been determined:
a. all totalled, the items requested required approximately 563
pages to be
copied, and prepayment of the $138.25 copying fee was required before the
documents would be provided.
b. The items requested in the August 31st letter to
Reilly total more than 420
pages and would be provided upon the prepayment of the copying costs
described in paragraph 10a., of the findings, above.
c. Regarding the items requested in the August 16th and
August 31st letters to
Luciano: 1) if the items identified in paragraphs 2e, 2f, and 3a of the findings,
above, exist in the records or files of Fitch staff, then the documents would be
made available; 2) the items identified in paragraphs 2g., and 3e of the
findings, above, are addressed in the Town of Groton’s Board of
Education’s (“board”) policy, and copies would be provided upon receipt of
the prepaid copying fees described in paragraph 10a., of the findings, above;
3) the items identified in paragraphs 2d of the findings, above, are “data and
test questions used on academic examinations” and therefore exempt from
public disclosure in accordance with §1-19(b)(6), G.S.; and 4) access to the
items identified in paragraphs 3c and 3d of the findings, above, would be
provided after the complainants made an appointment with respondent
Luciano to view the documents.
d. Regarding the items requested in the September 5th
letter to Reilly, and
outlined in paragraph 9 of the findings, above: 1) a copy of the state
compliance report would be provided after prepayment of the copying costs
described in paragraph 10a., of the findings, above, and 2) arrangements had
been made to allow the complainants to listen to the requested audiotapes
at the assistant superintendent’s office on September 13, 1995 at 9:00 a.m.
11. By letter of complaint dated September 13, 1995, and filed with the Commission on September 14, 1995, the complainants alleged that the respondents violated the Freedom of Information (“FOI”) Act by “willfully and knowingly” denying access to, or copies of requested materials relating to Fitch’s health curriculum, and by establishing and implementing a policy whereby a fee is charged for providing copies of specified records.
12. The complainants requested the imposition of civil penalties against the respondents.
13. It is found that the requested records are public records within the meaning of §§1-18a(d) and 1-19(a), G. S.
1-19(a), G.S., provides in relevant part that:
…all records maintained or kept on
file by any public agency…
shall be public records and every person shall have the right to inspect such
records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of 1-15.
1-15, G.S., provides in relevant part that:
(a) [a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. The fee for any [plain] copy provided …. (2) by … [a municipal] public agenc[y] … shall not exceed fifty cents per page… [and] (c) A public agency may require the prepayment of any fee … if such fee is estimated to be ten dollars or more. (Emphasis added.)
16. It is found that at the time of the complainants’ records requests Fitch students, faculty and staff were still on summer vacation.
17. It is found that with the exception of a small number of curriculum materials that respondent Luciano had in his files, all other documents responsive to the complainants requests were either unavailable because the records did not exist, or unavailable because they existed in the individual files of Fitch teachers and other professional staff who had not yet returned to school from summer vacation.
18. It is found that despite the fact that school had not yet resumed, in an effort to promptly comply with the complainants’ records requests, the respondents enlisted the aid of one of Fitch’s health teachers to identify and compile the voluminous documentation requested.
19. It is found that the respondents also contacted other department heads and professional staff to obtain copies of responsive documents that those persons may have had in their curriculum and teaching files.
20. It is found that §1-19(b)(6), G.S., permits the respondents to withhold from public disclosure “test questions, scoring keys and other examination data used to administer … academic examinations” such as those requested by the complainants as described in paragraph 2d., of the findings, above.
21. Upon the facts of this case, it is found that all existing non-exempt records were assembled and made available to the complainants by the respondents as quickly as possible.
is found, however, that it would have been prudent and responsible for the
respondents to have promptly informed the complainants of their intention to
provide them with
copies of, or access to all non-exempt records, and to have explained that because of the timing of the requests during school vacation, some delay in identifying and compiling the requested records was unavoidable.
23. It is found that the respondents promulgated and implemented—but did not publish or post-- an “Administrative Regulation” concerning FOI Act requests and created an “Application for Access to Public Records” (“FOI Act policy”), that went into effect after August 31, 1995, in an effort to consolidate and centralize FOI Act requests, and keep small records requests—ten pages or less—free of charge.
24. It is found that on or about September 5, 1995 the respondents advised the complainants that all future FOI Act requests should be directed to the school district’s business manager since he would be the person responsible for the implementation of the school district’s new FOI Act policy. It is not clear from the evidence in this case that the respondents also apprised the complainants of their new FOI ACT policy of charging a copying fee for FOI Act requests, prior to their September 12, 1995 reply letter.
25. It is found that following the receipt of the respondents’ September 12th letter, the complainants chose not to prepay the copying costs for documents that the respondents had made available because it had not been the respondents’ policy or practice to charge them for providing such records, and they also failed to inspect certain information that the respondents had made available.
26. Upon these facts it is concluded that the respondents did not technically violate §1-15(a) or (c), G.S., by charging the complainants for copies of records, or for requiring prepayment of the copying costs described in paragraph 10, of the findings, above.
27. Upon these facts it is concluded that with respect to the allegations as described in paragraph 11., of the findings, above, the complainants have failed to prove a violation of the letter of the FOI Act.
order by the Commission is hereby recommended on the basis of the record
concerning the above-captioned complaint:
1. The complaint is hereby dismissed with respect to the allegation that the respondents denied the complainants access to, or copies of requested materials relating to Fitch’s health curriculum.
2. In light of the Commission’s findings in paragraphs 22, 23 and 24, of the findings, above, the Commission urges the respondents to provide the complainants with copies of those records described in paragraph 10a. through 10d., of the findings, above, free of charge, if they have not already received payment for providing copies of the aforementioned records.
Approved by Order of the Freedom of Information Commission at its regular meeting of September 11, 1996.
Elizabeth A. Leifert
Acting Clerk of the Commission
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:
Vicky R. Francis
Don I. Francis
13 Constitution Place
Groton, CT 06340
John Luciano, Principal, Robert E. Fitch Senior High School and George Reilly, Superintendent, Groton Public Schools,
c/o Loren Lettick, Esq.
1062 Barnes Road
Wallingford, CT 06492-2576
Elizabeth A. Leifert
Acting Clerk of the Commission