FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Matthew Brown, Ken Byron and The Hartford Courant,

 

 

Complainants

 

 

against

 

Docket #FIC 1997-175

Superintendent of Schools, Plymouth Public Schools; and Board of Education, Town of Plymouth,

 

 

Respondents

February 18, 1998

        The above-captioned matter was heard as a contested case on October 3, 1997, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. Frank Carpenter requested and was granted party status at the hearing on this matter.

        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(1), G.S. (prior to October 1, 1997, 1-18a(a), G.S.).

        2. By letter dated June 2, 1997, the complainants requested that the respondents provide them with access to all records, documents and other written or electronically stored material relating to incidents in which school employees were alleged to have allowed students to have access to pornography or sexually explicit material.

        3. By letter dated June 3, 1997, the respondents provided notice to the subject employee that a request had been made for information related to his employment.

        4. On June 4, 1997, the subject employee objected in writing to disclosure of the requested records pursuant to 1-20a, G.S.

        5. By letter dated June 5, 1997, the respondents denied the complainants’ request, citing 1-20a and 1-19b(2)(11)[sic], G.S.

        6. By letter dated and filed June 9, 1997, the complainants appealed to the Commission alleging that the respondents violated the Freedom of Information ("FOI") Act by denying them access to the requested records.

        7. It is found that the requested records are public records within the meaning of 1-18a(5), G.S. (prior to October 1, 1997, 1-18a(d), G.S.) and 1-19(a), G.S.

        8. Section 1-19(a), G.S., provides in relevant part that "[e]xcept as otherwise provided by any federal law or state statute, 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…."

        9. The respondents submitted to the Commission for in-camera inspection all existing records responsive to the complainants’ request, which records have been designated by the Commission as in-camera document #s 1997-175-A1-A6; 1997-175-B1-B8; and 1997-175-C1-C3, inclusive.

        10. With respect to the allegation contained in paragraph 6, above, the respondents contend that various provisions of the FOI Act provide bases to withhold the requested records.

        11. Specifically, the respondents contend that in-camera document #s 1997-175-B1-B8; and 1997-175-C1-C3, inclusive, which the respondents describe as preliminary notes of the respondent superintendent’s investigation, are exempt from mandatory disclosure by virtue of 1-19(b)(1), G.S.

        12. Section 1-19(b)(1), G.S., in relevant part states:

[n]othing in the [FOI] Act shall be construed to require disclosure of…preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure….

        13. Section 1-19(c), G.S., in relevant part states:

[n]otwithstanding the provisions of [ 1-19(b)(1), G.S.] …disclosure shall be required of…interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated….

        14. Upon inspection of in-camera document #s 1997-175-B1-B8; and 1997-175-C1-C3, inclusive, it is found that such documents are preliminary notes within the meaning of 1-19(b)(1), G.S., and that they are not memoranda, letters, advisory opinions, recommendations or reports within the meaning of 1-19(c), G.S. It is further found that the respondents determined that the public interest in withholding such records outweighs the public interest in disclosure.

        15. It is therefore concluded that in-camera document #s 1997-175-B1-B8; and 1997-175-C1-C3, inclusive, are exempt from disclosure under the provisions of 1-19(b)(1), G.S.

        16. The respondents contend that they are precluded from disclosing in-camera document #s 1997-175-A1-A6 by virtue of 1-20a, G.S.

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

[w]henever a public agency receives a request to inspect or copy records contained in any of its employees' personnel or medical files 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…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.

        18. Section 1-20a(c), G.S., in relevant part states:

[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…within seven business days from the receipt by the employee…. 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 pursuant to section 1-21i….

        19. Section 1-19(b)(2), G.S., provides for the nondisclosure of "personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy."

        20. In Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993), the Supreme Court set forth the test for the exemption contained in 1-19(b)(2), G.S. 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.

        21. It is found that in-camera document #s 1997-175-A1-A6 are contained in an employee personnel file within the meaning of 1-19(b)(2), G.S.

        22. However, it is further found that such records pertain to legitimate matters of public concern in that they relate to the conduct of a public school employee during class hours. Accordingly, such documents are not exempt from disclosure under 1-19(b)(2), G.S., and are subject to mandatory disclosure pursuant to 1-19(a), G.S.

        23. Mr. Carpenter contends that 10-151c, G.S., provides a basis to withhold the requested records.

        24. Section 10-151c, G.S., in relevant part provides that:

[a]ny records maintained or kept on file by any local or regional board of education which are records of teacher performance and evaluation shall not be deemed to be public records and shall not be subject to the provisions of 1-19, provided that any teacher may consent in writing to the release of his records by a board of education….

        25. It is found that in-camera document #s 1997-175-A1-A6 do not constitute records of employee performance and evaluation within the meaning of 10-151c, G.S. It is further found that such documents relate to a specific incident of alleged misconduct.

        26. It is therefore concluded that in-camera document #s 1997-175-A1-A6, inclusive, are not exempt from disclosure by virtue of 10-151c, G.S.

        27. As a result of the foregoing, it is concluded that the respondents violated the provisions of 1-19(a), G.S., by failing to provide the complainants with prompt access to inspect in-camera document #s 1997-175-A1-A6, inclusive.

        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 the complainants with access to inspect in-camera document #s 1997-175-A1-A6, inclusive.

        2. Henceforth the respondents shall strictly comply with the disclosure provisions of 1-19(a), G.S.

        Approved by Order of the Freedom of Information Commission at its regular meeting of February 18, 1998.

_________________________
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:
Matthew Brown, Ken Byron and The Hartford Courant
40 South Street
New Britain, CT 06051

Superintendent of Schools, Plymouth Public Schools; and Board of Education, Town of Plymouth
c/o Anne H. Littlefield
Shipman & Goodwin
One American Row
Hartford, CT 06103-2819

Frank Carpenter
c/o William J. Dolan
21 Oak Street, Suite 500
Hartford, CT 06106-8001

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-175/FD/tcg/02181998