FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
John Willnauer,
Complainants
against Docket #FIC 1999-234
Town Manager, Town of Coventry and
Town of Coventry,
Respondent September 8, 1999

        The above-captioned matter was heard as a contested case on July 12, 1999, at which time the complainant and the respondents appeared, stipulated to certain facts 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 1-200(1), G.S. [formerly 1-18a(1), G.S.].

        2. By letter to the respondent town manager dated April 20, 1999, the complainant, an unsuccessful candidate for the position of building official for the Town of Coventry (hereinafter "position"), requested:

a) copies of all other applications for the position;

b) to review notes of the interview panel; and
    any other related documents.

 

        3. By reply letter dated April 27, 1999, the respondent town manager indicated that he would provide the complainant with copies of the requested applications described in paragraph 2a), above, after the removal of certain personal information. The respondent town manager inquired whether the complainant wanted copies of all applications, the oral review panel applicants or the finalists. With respect to the complainant’s request described in paragraphs 2b) and 2c), above, the respondent town manager denied access to such records, claiming they were not disclosable, as they constituted a test.

        4. By letter of complaint dated May 14, 1999 and filed May 18, 1999, the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information Act by failing to comply with his April 20, 1999 letter of request.

        5. It is found that the requested records are public records within the meaning of 1-200(5) and 1-210(a) [formerly 1-18a(5) and 1-19(a), G.S.].

        6. Section 1-210(a), G.S., [formerly 1-19(a), G.S.] provides in relevant part that:

Except 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 or to receive a copy of such records in accordance with the provisions of section 1-212.

        7. Section 1-212(a), G.S. [formerly 1-15(a), G.S.], in turn, provides in relevant part, that "any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record."

        8. At the hearing on this matter the respondents indicated that the records responsive to the complainant’s request consist of:

a) the applications for the position;

b) an informational booklet provided to each of the panel members who interviewed a group of eight applicants for the position;

c) the respondent town manager’s notes taken after contacting references of certain finalists for the position;

d) two sets of prepared questions prepared by two members of the interview panel, one of which was hand-written, the other of which was in typed form;

e) copies of the rating sheets that were completed by the interview panel for each of the eight applicants interviewed by the panel; and

two summaries of scores compiled by the respondent town manager’s secretary from the rating sheets, one of which was hand-written, the other of which was revised and in typed form.

        9. With respect to the records described in paragraph 8a), above, the respondents indicated at the hearing on this matter and in the respondent town manager’s letter dated April 27, 1999, described in paragraph 3, above, that they would provide the complainant with such applications, with only the social security numbers redacted. At the hearing on this matter, the complainant indicated that he wished to inspect, and the respondents agreed to provide access to, all applications for the position, with social security numbers redacted, and the opportunity to obtain copies, after his inspection.

        10. It is concluded with respect to the requested applications described in paragraph 8a), above, that the respondents did not violate the provisions of 1-210(a), G.S. or 1-212(a), G.S., [formerly 1-19(a), G.S. and 1-15(a), G.S., respectively], since the respondents indicated their willingness from the time of the complainant’s request to provide such records to the complainant and the complainant chose not to obtain access to such records until the hearing in this matter.

        11. With respect to the records described in paragraphs 8b) and 8c), above, the respondents indicated at the hearing on this matter, that they would provide the complainant with access to such records, with the exception of one page contained in the information booklet, that consists of a blank rating sheet, which they claim is exempt from disclosure, for the reason set forth in paragraph 14, below.

        12. After the hearing in this matter, the respondents submitted copies of the records described in paragraphs 8d) and 8f), and copies of the rating sheets pertaining to the complainant, as an example of the subject records described in paragraph 8e), above, for in camera inspection.

        13. With respect to the records described in paragraphs 8d) through 8f), above, the respondents maintain that such records, along with the blank rating sheet described in paragraph 11, above, are exempt from disclosure pursuant to 1-210(b)(6), G.S.; and that disclosure of the information on the rating sheets, consisting of the rater’s impressions of each candidate, would constitute an invasion of privacy. In addition, the respondents claimed on the index to the records submitted for in camera inspection, that the handwritten compilation of scores described in paragraph 8f), above, is exempt from disclosure pursuant to 1-210(b)(1), G.S., [formerly 1-19(b)(1), G.S.].

        14. Section 1-210(b)(6), G.S.[formerly 1-19(b)(6), G.S.], provides that "nothing in the Freedom of Information Act shall be construed to require disclosure of . . . [t]est questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examinations."

        15. The respondents contend that all of the records described in paragraphs 8d) through 8f), above, and the blank rating sheet contained in the record described in paragraph 8b), above, constitute test questions, scoring keys and other examination data used to administer an examination for employment within the meaning of 1-210(b)(6), G.S. [formerly 1-19(b)(6), G.S.].

        16. The complainant maintains that the procedures implemented by the respondents to fill the position did not constitute an "examination for employment" within the meaning of 1-210(b)(6), G.S. [formerly 1-19(b)(6), G.S.].

        17. It is found however that the process employed by the respondents, and undergone by the applicants for the position, reasonably constitutes an "examination for employment" within the meaning of 1-210(b)(6), G.S. [formerly 1-19(b)(6), G.S.].

        18. It is further found that the following records constitute test questions, scoring keys or other examination data used to administer the subject examination for employment, within the meaning of 1-210(b)(6), G.S. [formerly 1-19(b)(6), G.S.]:

a) the records described in paragraph 8d), above, with the exception of the last three lines on the handwritten page consisting of names and numerical scores;

b) the rating sheets described in paragraph 8e), above, with the exception of the date, the names of the applicant and the reviewer, the total numerical score and the individual numerical scores given to each candidate for each category rated; and

the blank rating sheet contained in the information booklet, described in paragraph 8b), above.

        19. It is therefore concluded that those records and portions thereof, described in paragraph 18, above, are exempt from disclosure pursuant to 1-210(b)(6), G.S. [formerly 1-19(b)(6), G.S.] and that the respondents did not violate the provisions of 1-210(a), G.S., [formerly 1-19(a), G.S.], by failing to provide the complainant with access to such records and portions thereof.

        20. In view of the conclusion in paragraph 19, above, it is unnecessary to consider the respondents claim of invasion of privacy with respect to the rater’s impressions contained on the rating sheets, described in paragraph 8e), above.

        21. It is found however that the other portions of the records, noted as exceptions in paragraph 18, above, and the records described in paragraph 8f), above, do not constitute test questions, scoring keys or other examination data used to administer the subject examination for employment; and therefore such records are not exempt from disclosure pursuant to 1-210(b)(6), G.S., [formerly 1-19(b)(6), G.S.].

        22. Section 1-210(b)(1), G.S., [formerly 1-19(b)(1), G.S.] in relevant part, provides for the nondisclosure of: "[p]reliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure."

        23. It is found that the handwritten compilation of scores described in paragraph 8f), above, constitutes a preliminary draft or note, within the meaning of 1-210(b)(1), G.S. [formerly 1-210(b)(1), G.S.]. It is further found however, that the respondents failed to prove that they made a determination that the public interest in withholding such record clearly outweighs the public interest in its disclosure, as required under 1-210(b)(1), G.S. [formerly 1-19(b)(1), G.S.].

        24. It is therefore concluded that the respondents failed to prove that the handwritten compilation of scores, described in paragraph 8f), above, is exempt from disclosure pursuant to 1-210(b)(1), G.S. [formerly 1-19(b)(1), G.S.]

        25. It is found that those portions of the records, noted as exceptions in paragraph 18, above, and the records described in paragraph 8f) above, are not exempt and are therefore subject to mandatory disclosure pursuant to 1-210(a), G.S. [formerly 1-19(a), G.S.]; and it is therefore concluded that the respondents violated the terms of such provision by failing to provide the complainant with prompt access to such records and portions thereof.

        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 complainant with access to: those portions of the records described in paragraphs 8d) and 8e), of the findings above, that were found not to be exempt, as set forth in paragraph 18 of the findings, above; and the records described in paragraph 8f) of the findings, above.

        2. In addition, if they have not already done so, the respondents shall forthwith provide the complainant with access to the applications described in paragraph 8a), of the findings above, with the exception of the social security numbers; the information booklet described in paragraph 8b), of the findings above, with the exception of the blank rating sheet; and the respondent town manager’s notes, as described in paragraph 8c), of the findings above.

        3. If the complainant wishes to obtain copies of any of the records described in paragraphs 1 and 2 of this order, above, following an inspection, the respondents shall provide the complainant with such copies, and may charge the complainant the fees permitted pursuant to 1-212(a)(2), G.S. [formerly 1-15(a)(2), G.S.]

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of
September 8, 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:

 

John Willnauer
280 Bread and Milk Street
Coventry, CT 06238
Town Manager, Town of Coventry and Town of Coventry
c/o Atty. Michael A. Zizka
Murtha, Cullina, Richter & Pinney
CityPlace I, 185 Asylum Street
Hartford, CT 06103-3469
 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

 

FIC1999-234FD/mrb/09151999