FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

FINAL DECISION
Docket #FIC 1997-068
October 22, 1997

In the Matter of a Complaint by Walter J. Casey, Complainant
against
Chairman, Board of Education, Town of Darien and Board of Education, Town of Darien, Respondents

The above-captioned matter was heard as a contested case on July 23, 1997, at which time the complainant and the respondents 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.

2. By letter dated January 1, 1997, the complainant requested a copy of all records related to the Board of Education’s evaluation of the Superintendent of the Darien Public Schools, including records related to interim steps in the evaluation process (all of which together are herein referred to as the "evaluation records").

3. Following preliminary responses on January 7 and January 17, 1997, the respondents by letter dated February 10, 1997 declined to provide the evaluation records.

4. By letter dated February 23, 1997, and filed with the Commission on February 26, 1997, the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information ("FOI") Act by failing to provide him with a copy of the evaluation records.

5. At the hearing and again in a post-hearing letter dated July 27, 1997, the complainant narrowed his request so as not to include medical records, the names of all teachers identified in the evaluation records, and the names as well as other identifying information concerning special education students.

6. The respondents contend that the evaluation records are exempt from disclosure pursuant to 1-19(b)(2), G.S., which provides that a public agency need not disclose "personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy".

7. The respondents also contend that the 1-19(b)(2), G.S., disclosure standards concerning the evaluation records should be determined in light of 1-18a(e)(1), G.S., which allows the respondent board to discuss the evaluation of the superintendent in an executive session, unless the superintendent exercises his right to request an open meeting.

8. It is concluded that the structure of the FOI Act indicates that the General Assembly intended standards for records and meetings which are in some respects the same and in some respects different, but which are above all, separate. See 1-18a(e) and 1-19(b), G.S. This separate treatment coincides with the common sense knowledge that matters are always different and more formal when "you put it in writing".

9. It is therefore concluded that the 1-18a(e)(1) provision for executive sessions concerning personnel evaluations does not reflect in any controlling manner on the separate issue of the disclosure of the evaluation records pursuant to 1-19(b)(2), G.S.

10. Section 10-151c, G.S., provides that "records of teacher performance and evaluation shall not be deemed to be public records" subject to the FOI Act, and further states that "‘teacher’ shall include each certified professional employee below the rank of superintendent…."

11. Based upon 10-151c, G.S., it is concluded that the General Assembly considered the question of disclosing evaluations of educators and drew an express line against disclosure for lower level educators up to the level immediately below the rank of superintendent. By excluding the evaluations of superintendents themselves from the statutory protection against disclosure, the statute strongly suggests that the legislature intended that the evaluations of superintendents should be public records subject to disclosure.

12. Section 1-19(a), G.S., states in pertinent part:

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….[emphasis added]

13. Section 1-20a(b), G.S., states in pertinent part:

Whenever a public agency receives a request to inspect or copy records contained in any of its employees' personnel or medical and similar files and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency shall immediately notify in writing (1) each employee concerned and (2) the collective bargaining representative, if any, of each employee concerned. Nothing herein shall require an agency to withhold from disclosure the contents of personnel or medical files and similar files when it does not reasonably believe that such disclosure would legally constitute an invasion of personal privacy. [emphasis added]

14. And finally, 1-20a(c), G.S., provides that:

A public agency which has provided notice under subsection (b) of this section shall disclose the records requested unless it receives a written objection from the employee concerned....Each objection filed under this subsection shall [contain]..a statement...that...there is good ground to support it and that the objection is not interposed for delay. Upon the filing of an objection as provided in this subsection, the agency shall not disclose the requested records unless ordered to do so by the freedom of information commission….[emphasis added]

15. It is found that no evidence was introduced at the hearing to show that notice was given to the superintendent pursuant to 1-20a(b), G.S., despite the mandatory language of said subsection, and also that no evidence was introduced at the hearing to show that the superintendent did, in fact, object to disclosure of the evaluation records.

16. It is therefore concluded that 1-20a(c) and 1-20a(b), G.S., contemplated that the right to assert the invasion of personal privacy exemption was placed in the employee whose privacy is at issue, and that the respondents who failed to give the statutorily required notice to the employee do not have standing to assert the exemption. For this reason alone, the respondents’ claim to the invasion of personal privacy exemption fails, and in the absence of meeting the burden of proving an exemption, the evaluation records should be disclosed.

17. Moreover, it is also concluded that, in determining whether "the agency reasonably believes that disclosure of such records would legally constitute an invasion of privacy" pursuant to 1-20a(b), G.S., the appropriate test was set forth by the Supreme Court in Perkins v. Freedom of Information Commission, 228 Conn. 158, (1993). The claimant must first establish that the files in question are personnel, medical or similar files. Second, the claimant must show that disclosure of the records would constitute an invasion of personal privacy. In determining whether disclosure would constitute an invasion of personal privacy, the claimant must establish both of two elements: first, that the information sought does not pertain to legitimate matters of public concern, and second, that such information is highly offensive to a reasonable person.

18. It is found that the evaluation records constitute personnel or similar files within the meaning of 1-19(b)(2), G.S.

19. It is also found that the information contained in the evaluation records does pertain to legitimate matters of public concern, including the public’s ability to evaluate the public education being provided to their own and other persons’ children. If information pertaining directly to the evaluation of the quality of public education is not a legitimate matter of public concern, one would be hard pressed to find such a matter in the operations of state and municipal government.

20. It is found, based in part upon the testimony of the respondent Chairman and notwithstanding footnote 3 of the respondents’ August 1, 1997 brief, that the evaluation records do not contain information that is highly offensive to a reasonable person.

21. Consequently, it is concluded that the respondents could not reasonably have believed that disclosure of the evaluation records would legally constitute an invasion of personal privacy for purposes of 1-20a(b), G.S.

22. Section 1-19(b)(11), G.S., provides that "the names and addresses of students enrolled in any public school" shall not be subject to mandatory disclosure without the consent of the student or parent, as provided. Thus, the names and addresses of all students (not just special education students as discussed at paragraph 5, above) are exempt from disclosure.

23. Consequently, it is concluded that the evaluation records, except for the names and addresses of students, are public records subject to mandatory disclosure pursuant to 1-19(a), G.S.

24. Therefore, it is concluded that the respondents failure to promptly provide to the complainant copies of the evaluation records, with the names and addresses of all students redacted, violated 1-19(a) and 1-15(a), G.S.

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 provide to the complainant a copy of the evaluation records, with the names and addresses of all students redacted, and with the additional exclusions and redactions suggested by the complainant at paragraph 5, above.

Approved by Order of the Freedom of Information Commission at its regular meeting of October 22, 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:
Walter J. Casey
8 Webster Valley Road
Darien, CT 06820

Chairman, Board of Education, Town of Darien; and Board of Education, Town of Darien
c/o Thomas Mooney
Shipman and Goodwin
One American Row
Hartford, CT 06103

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-068/FD/tcg/10221997