FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

FINAL DECISION
Docket #FIC 1996-149
January 22, 1997
In the Matter of a Complaint by Sandra Postell, Complainant
against
Director of Pupil Personnel and Special Education Services, Middletown Public Schools, Respondent

The above-captioned matter was heard as a contested case on October 10, 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. By letter dated April 18, 1996, the complainant requested that the respondent provide her with access to the following:

a) the complete file of Sheena Postell, and

b) a copy of the most recent progress letter, a document prepared by Mrs. Kantrowitz and Mrs. Riley on April 8, 1996.

3. It is found that the requested records are public records within the meaning of 1-18a(d), G.S., and 1-19(a), G.S.

4. It is found that on April 22, 1996, the respondent invited the complainant to view the complete file identified in paragraph 2a), above, at her convenience.

5. It is also found that on April 29, 1996, the complainant arrived at the respondent’s offices and examined the file identified in paragraph 2a), above, but that the record identified in paragraph 2b), above, was not contained in that file.

6. Thereafter by letter dated April 30, 1996 and filed with the Commission on May 6, 1996, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information (hereinafter "FOI") Act by denying her a copy of the April 8, 1996 letter identified in paragraph 2b), above.

7. It is found that a draft of the letter identified in paragraph 2b), above, ("letter"), was written by the staff of the Keigwin school and forwarded to the respondent for her review prior to its being sent to the complainant, its addressee.

8. It is also found that upon review of the letter, the respondent changed its content and instead issued correspondence on her own letterhead which was then sent to the complainant and placed in the file identified in paragraph 2a), above.

9. It is found that the letter identified in paragraph 2b), above, was destroyed by the respondent after her review and was not retained by her in any form. However, a copy of the letter was retrieved from the Keigwin school and provided to the complainant sometime after the appeal in this matter was filed.

10. It is concluded that because the requested letter was not maintained by the respondent at the time of the complainant’s request, the respondent did not violate the access or promptness provisions of the FOI Act under the facts of this case.

11. The complainant contends that the respondent improperly destroyed the letter.

12. The respondent contends that:

The Commission lacks jurisdiction over the complainant’s contention because the alleged improper destruction of a public record is for the public records administrator to determine; and,

The record at issue is exempt from disclosure pursuant to 1232g, G.S., et seq., and 1-19(b)(1), G.S.

13. It is concluded that the Commission lacks jurisdiction over the issue of the retention and destruction of public records. Further, in view of the conclusion in paragraph 10, above, it is unnecessary for this Commission to consider the respondent’s claims of exemption outlined in paragraph 12b, above.

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

1. The complaint is hereby dismissed.

2. The respondent is advised to consult with the state public records administrator concerning the retention and destruction of public records.

Approved by Order of the Freedom of Information Commission at its regular meeting of January 22, 1997.

__________________________
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:

Sandra Postell
c/o Winona W. Zimberlin, Esq.
2 Congress Street
Hartford, CT 06114-1024

Director of Pupil Personnel and Special Education Services, Middletown Public Schools
c/o Christine L. Chinni, Esq.
Shipman & Goodwin, LLP
One American Row
Hartford, CT 06103

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC1996-149/FD/eal/01291997