FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Natalie Missakian and the New Haven Register,

 

 

Complainants

 

 

against

 

Docket #FIC 1997-226

Chairman, Impartial Hearing Panel, Board of Education, New Haven Public Schools; and Board of Education, New Haven Public Schools,

 

 

Respondents

April 8, 1998

        The above-captioned matter was heard as a contested case on December 16, 1997, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. Gloria Rogers requested to intervene as a party at the hearing on this matter, which request was granted.

        After consideration of the entire record, the following facts are found and conclusions of law are reached:

        1. The respondent board is a public agency within the meaning of 1-18a(1), G.S. (prior to October 1, 1997, 1-18a(a), G.S.).

        2. By letter dated July 10, 1997, the complainants requested that the respondent chairman provide them with a copy of the transcript of testimony taken at the July 1, 1997 termination hearing of Gloria Rogers, Assistant Principal of the Jackie Robinson Middle School and intervening party in this matter.

        3. By letter dated July 15, 1997, the respondent chairman responded to the complainants’ request, offering to provide a portion of the requested record upon payment of a fee, but denying to the complainants a copy of so much of the transcript as would reveal the testimony of a minor child who had testified at such hearing under a ruling that such testimony would remain private.

        4. By letter dated July 18, 1997, and filed with the Commission on July 23, 1997, the complainants alleged that the respondents violated the Freedom of Information ("FOI") Act by improperly conducting a closed-door meeting on July 1, 1997, to hear certain testimony and by denying access to the transcript of such testimony.

        5. It is found that, pursuant to 10-151(d), G.S., the respondent board initiated a termination process with respect to Ms. Rogers. It is further found that such process was initiated because of an allegation that school children were strip-searched in an attempt to recover missing money.

        6. Section 10-151(d), G.S., in relevant part provides:

…Prior to terminating a contract, the superintendent shall give the teacher concerned a written notice that termination of such teacher’s contract is under consideration….Within [20] days after receipt of written notice by the superintendent that contract termination is under consideration, such teacher may file with the local or regional board of education a written request for a hearing….Such hearing shall commence…(B) if indicated in such request or if designated by the board before an impartial hearing panel….The impartial hearing panel shall consist of three members appointed as follows: The superintendent shall appoint one panel member, the teacher shall appoint one panel member, and those two panel members shall choose a third, who shall serve as chairperson….[T]he impartial hearing panel…shall submit written findings and a recommendation to the board of education as to the disposition of the charges against the teacher, and shall send a copy of such findings and recommendation to the teacher….The hearing shall be public if the teacher so requests or…panel so designates. The teacher concerned shall have the right to appear with counsel at the hearing, whether public or private…. [Emphasis added.]

        7. It is found that, pursuant to 10-151(d), G.S., an impartial hearing panel ("IHP"), which the respondent chairman chaired, convened and conducted several hearings, all of which were held in open session with the exception of the July 1, 1997 testimony of a minor child, as described in paragraph 3, above.

        8. It is found that, in an effort to foster the integrity of the minor child’s testimony, the IHP closed such session so that such child could testify about an allegedly traumatic event in an atmosphere free from pressure or exposure to publicity. It is further found that those in attendance during such testimony were the minor child, who was approximately ten years old, such child’s parents and attorney, Ms. Rogers and her attorney, attorneys for the respondent board, the members of the IHP, and a stenographer.

        9. It is found that the IHP ordered the sealing of the testimony described in paragraph 3, above, for the reasons set forth in paragraph 8, above.

        10. The respondent chairman first contends that the complainants’ request described in paragraph 2, above, is deficient in that it cites federal law as a basis for such request. However, the FOI Act does not require proper citation of law within a written request. It is therefore concluded that the complainants’ drafting error does not deprive the Commission of jurisdiction over this matter.

        11. The respondent chairman also contends that the IHP is not a public agency subject to the FOI Act.

        12. Section 1-18a(1), G.S. (prior to October 1, 1997, 1-18a(a), G.S.), in relevant part defines "public agency" or "agency" to mean:

…any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official or body or committee thereof but only in respect to its or their administrative functions.

        13. The respondent chairman contends that the IHP is neither an executive, administrative, or legislative office of a political subdivision of the state, nor a department, institution, bureau, board, commission, authority thereof, nor a committee of the respondent board.

        14. It is concluded, however, that the IHP is a public agency within the meaning of 1-18a(1), G.S., in that it is a statutory authority of the New Haven School District, reporting to the respondent board under 10-151(d), G.S., and that the respondent chairman, as an official of that authority, is likewise a public agency within the meaning of 1-18a(1), G.S.

        15. The respondent chairman further contends that the IHP is a judicial body, over which the Commission maintains jurisdiction only with respect to its administrative functions.

        16. It is found that the IHP is not a judicial agency, but rather an administrative body reporting to the respondent board, the legislative body of the New Haven School District, and the respondent chairman’s claim that, based upon the nature of its activities, the IHP is not a public agency within the meaning of 1-18a(1), G.S., is without merit.

        17. Section 1-18a(2), G.S. (prior to October 1, 1997, 1-18a(b), G.S.), in relevant part defines "meeting" to include "…any hearing or other proceeding of a public agency…."

        18. Section 1-21(a), G.S., in relevant part provides that "[t]he meetings of all public agencies, except executive sessions…shall be open to the public…A public agency may hold an executive session…upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session…." Section 10-151(d), G.S., however, provides for a private hearing in certain circumstances, without reference to the provisions of 1-21(a), G.S.

        19. There is a presumption that legislation is enacted in view of existing relevant statutes and with the intention to create one harmonious body of law. Budkofsky v. Commissioner of Motor Vehicles, 177 Conn. 588, 592 (1979). With this tenet in mind, it is found that 10-151(d), G.S., provides the IHP with discretion to convene in executive session in accordance with the procedural requirements set forth in 1-21(a), G.S. Thus, it is further found that 1-21(a), G.S., requires that the IHP enter any such session only upon an affirmative vote of two-thirds of its members taken at such session, and that the respondents failed to prove that such vote was taken prior to the IHP’s receipt of the testimony described in paragraph 3, above.

        20. Section 1-19(a), G.S., provides in relevant part:

[e]xcept as otherwise provided by any federal law or state statute, all records maintained…by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office…hours or to receive a copy of such records… in accordance with the provisions of section 1-15….

        21. Section 1-15(a), G.S., provides in relevant part that:

[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. The fee for any copy provided in accordance with the [FOI] act…by [municipal] public agencies, as defined in section 1-18a, shall not exceed fifty cents per page….

        22. The respondent chairman contends that a number of exemptions and statutes provide bases to withhold the transcript described in paragraph 2, above. It is concluded that such contentions are without merit.

        23. Ms. Rogers contends that 1-19(b)(11), G.S., exempts from disclosure the transcript described in paragraph 2, above.

        24. Section 1-19(b)(11), G.S., in relevant part provides that:

[n]othing in the [FOI] Act…shall be construed to require disclosure of [the] names or addresses of students enrolled in any public school or college without the consent of each student whose name or address is to be disclosed who is [18] years of age or older and a parent or guardian of each such student who is younger than [18] years of age…

        25. It is found that the complainants consent to the redaction of the identity of the minor student who testified at the July 1, 1997 hearing. However, it is further found that mere redaction of such child’s name would not ensure that her identity would be protected.

        26. Based upon the findings set forth in paragraph 25, above, it is concluded that in this case 1-19(b)(11), G.S., exempts from disclosure the transcript described in paragraph 2, above, and that, therefore, the respondent chairman did not violate 1-19(a) and 1-15(a), G.S., by denying the complainants a copy of such record.

        27. It is also found that since the IHP no longer exists, an order issued with respect to it or its chairman would be inappropriate under the circumstances of this case.

        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 with respect to the respondent board.

        Approved by Order of the Freedom of Information Commission at its regular meeting of April 8, 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:
Natalie Missakian and the New Haven Register
c/o Chris Hoffman
40 Sargent Drive
New Haven, CT 06511-5918

Chairman, Impartial Hearing Panel, Board of Education, New Haven Public Schools
c/o Atty. William S. Rogers
Tyler Cooper & Alcorn, LLP
CityPlace / 35th Floor
Hartford, CT 06103-3488

Board of Education, New Haven Public Schools
c/o Atty. Jay E. Bovilsky
700 State Street
P.O. Box 1960
New Haven, CT 06509

Gloria Rogers
c/o Atty. Stephen Courtney
Gesmonde, Pietrosimone, Sgrignari & Pinkus, L.L.C.
3127-3129 Whitney Avenue
Hamden, CT 06518

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-226/FD/tcg/04171998