FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

FINAL DECISION
Docket #FIC 1997-076
September 24, 1997

In the Matter of a Complaint by Denise Lavoie and Associated Press, Complainants
against
Board of Education, Town of Fairfield, Respondent

The above-captioned matter was heard as a contested case on August 1, 1997, at which time the complainants and the respondent appeared, and presented testimony, exhibits and argument on the complaint. Mr. John Schwing, who was granted intervenor status at the hearing, also presented testimony 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 February 25, 1997, the complainants requested that the respondent provide them with "a copy of the investigative portion of the report on the Stratfield School test-tampering allegations" (the "investigative records").

3. By letter dated February 28, 1997, the respondent denied the complainants’ request for the investigative records, claiming that the investigative records were "directly related to pending litigation."

4. By letter dated and filed on March 11, 1997, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information Act by denying their request for a copy of the investigative records.

5. It is found that on March 14, 1997, the respondent entered into settlement agreements with Mr. Roger Previs, who had been the Principal of Stratfield School. On March 17, 1997, the complainants renewed their request for the investigative records and on March 24, 1997, Mr. Previs objected to the disclosure of all his personnel files.

6. At the hearing, the respondent claimed that it had not disclosed the investigative records after March 31, 1997, because it had received a modified objection on the grounds of invasion of privacy from Mr. Previs, a former employee acting pursuant to 1-20a(c), G.S.

7. More specifically, the respondent contended at the hearing that Mr. Previs, in his modified objection, agreed to the release of "all reports and all documents related to the investigation" into allegations of test tampering at the Stratfield School provided that all of the records are released "at the same time". Mr. Previs did not, however, agree to a piecemeal release of only the investigative records, which at that time was all that was being sought by the complainants. Moreover, at the hearing, the respondent on its own behalf claimed the attorney-client privilege with reference to another report, which was prepared by Shipman & Goodwin for the respondent. Accordingly, the respondent was unwilling to disclose all of the reports and other records related to the test-tampering investigation which are in the personnel files of Mr. Previs.

8. Following the hearing in this matter, the respondent submitted all of the reports and other records related to the test-tampering investigation which had not yet been released for an in camera inspection.

9. It is found that on September 11, 1997, following transmittal of the report of hearing officer dated September 5, 1997, the complainant sent a letter to the respondent which expanded the scope of the complainants’ request to include various other reports, analyses, comments and correspondence ("the expanded request for investigation records").

10. It is found that on September 22, 1997, the respondent filed a letter and affidavit with the Commission waiving the attorney-client privilege with respect to all of the reports and other records related to the test-tampering investigation. It is therefore found that, because there is no pending claim of exemption to the release of some investigation records, the modified March 31, 1997 objection of Mr. Previs, as affirmed by an affidavit dated July 31, 1997, no longer constitutes an operative objection to disclosure.

11. It is found that the names of students are exempt from disclosure pursuant to 1-19(b)(11), G.S., as suggested by the respondent in its September 16, 1997 letter to the Commission.

12. It is therefore concluded that, except for the names described at paragraph 11, above, all of the reports and other records related to the test-tampering investigation, including the investigative records and the expanded request for investigation records, are subject to mandatory disclosure pursuant to 1-19, G.S.

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

1. The respondent shall provide to the complainants forthwith a copy of all of the reports and other records related to the test-tampering investigation, except that the names described at paragraph 11, above, shall be redacted.

Approved by Order of the Freedom of Information Commission at its regular meeting of September 24, 1997.

_________________________
Doris V. Luetjen
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:
Denise Lavoie and Associated Press
P. O. Box 6728
Stamford, CT. 06904

Board of Education, Town of Fairfield
c/o Donald F. Houston, Esq. and Christine M. Cieplinski, Esq.
1057 Broad Street
P. O. Box 351
Bridgeport, CT. 06601-0351

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-076/FD/mes/10031997