FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Christian Miller and the New Haven Register,
Complainants
against Docket #FIC 1998-288
Superintendent, Branford Public Schools; and
Board of Education, Branford Public Schools,
Respondents February 24, 1999

        The above-captioned matter was heard as a contested case on November 16, 1998 at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. The case caption was modified to remove "Board of Education" immediately following the word "Superintendent".

        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.

        2. It is found that at the respondent board’s regular meeting of September 16, 1998 such board voted to approve the evaluation of the respondent superintendent’s performance for the contract year 1997-1998.

        3. It is found that by letter dated September 17, 1998, complainant Miller requested that the respondent board provide him with a copy of the respondent superintendent’s evaluation.

        4. It is found that the respondents denied complainant’s Miller request on or about September 21, 1998.

        5. Having failed to receive a copy of the evaluation, the complainants, by letter dated September 22, 1998 and filed with the Commission on September 24, 1998, appealed to the Commission alleging that the respondents violated the Freedom of Information ("FOI") Act by denying them a copy of the respondent superintendent’s evaluation.

        6. It is found that the respondent board consists of nine members, each of whom completed a CABE Superintendent Evaluation form ("CABE evaluation form"), rating the superintendent’s performance by completing a numerical and a narrative section.

        7. It is found that the records at issue in this case are the nine CABE evaluation forms, described in paragraph 6, above, which contain the individual comments and numerical ratings of each member of the respondent board.

        8. Section 1-18a(5), G.S., provides: "[‘P]ublic records or files’ mean any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method."

        9. Section 1-19(a), G.S., further provides:

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file 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 or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. [Emphasis added.]

        10. It is concluded that the nine CABE evaluation forms at issue are public records within the meaning of 1-18a(5) and 1-19(a), G.S.

        11. The respondents contend that the comments on the CABE evaluation forms are exempt from disclosure pursuant to 1-19(b)(2), G.S.

        12. Section 1-19(b)(2), G.S., permits nondisclosure of "[p]ersonnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy."

        13. Pursuant to Perkins v. Freedom of Information Commission, 228 Conn. 158 (1993) , the appropriate test when examining a claim of exemption under 1-19(b)(2), G.S., is as follows, first the information sought must constitute "personnel or medical files and similar files" and second, two elements must be met: the information sought does not pertain to legitimate matters of public concern, and such information is highly offensive to a reasonable person.

        14. It is found that the CABE evaluation forms are personnel file records within the meaning of 1-19(b)(2), G.S.

        15. However, it is also found that the comments on the CABE evaluation forms pertain to legitimate matters of public concern.

        16. Further, the respondents failed to prove that the information contained on the CABE evaluation forms if disclosed would be highly offensive to the reasonable person within the meaning of Perkins.

        17. It is therefore, concluded that the CABE evaluation forms are not exempt from public disclosure pursuant to 1-19(b)(2), G.S.

        18. It is further found that 10-151c, G.S., which exempts from public disclosure records of teacher evaluations specifically provides for the disclosure of superintendent evaluation records.

        19. In light of the foregoing, it is concluded that the respondents violated 1-15(a) and 1-19(a), G.S., when they failed to promptly provide the complainants with a copy of the CABE evaluation forms, with the individual comments and numerical ratings given the superintendent by each board member.

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

        1. Forthwith, the respondents shall provide the complainant with a copy of the CABE evaluation forms.

        2. Henceforth, the respondents shall strictly comply with the requirements of 1-15(a) and 1-19(a), G.S.

 

         Approved by Order of the Freedom of Information Commission at its regular meeting of February 24, 1999.

 

 

_________________________

Melanie R. Balfour

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:

 

Christian Miller and the New Haven Register
40 Sargent Drive
New Haven, CT 06511-5918
Superintendent, Branford Public Schools; and Board
of Education, Branford Public Schools
c/o Atty. Lisa M. Grasso
Pepe & Hazard Goodwin Square
Hartford, CT 06103-4302

 

 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

 

FIC1998-288FD/mrb02261999