OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by
John R. Gulash,
Docket #FIC 2000-158
Board of Education,
November 29, 2000
The above-captioned matter was heard as a contested case on May 19, 2000, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. For purposes of hearing the following eight (8) contested cases were consolidated with the above-captioned matter: docket #s FIC 2000-128 Thomas E. Lee v. Board of Education, Trumbull Public Schools, FIC 2000-129 Thomas E. Lee v. Board of Education, Trumbull Public Schools, FIC 2000-130 Thomas E. Lee v. Board of Education, Trumbull Public Schools, FIC 2000-131 Thomas E. Lee v. Board of Education, Trumbull Public Schools, FIC 2000-132 Thomas E. Lee v. Board of Education, Trumbull Public Schools, FIC 2000-133 Thomas E. Lee v. Board of Education, Trumbull Public Schools, FIC 2000-134 Thomas E. Lee v. Board of Education, Trumbull Public Schools, and FIC 2000-157 John R. Gulash v. Board of Education, Trumbull Public Schools. Records were reviewed in camera by the Commission.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent is a public agency within the meaning of §1-200(1), G.S.
2. By letter of complaint dated
March 27, 2000 and filed on March 28, 2000, the complainant appealed to the
commission alleging that the respondent violated the Freedom of Information (“FOI”)
failing to provide public notice of a Trumbull High School student
expulsion hearing, held on March 7, 2000; and
ordering him to leave the expulsion hearing.
3. The issue before the
Commission is whether the student expulsion hearing is subject to the open
meeting provisions set forth at §1-225(a), G.S., of the FOI Act.
4. Section 10-233d, G.S.,
provides in relevant part:
(a) (1) Any local or regional board of education, at a meeting at
which three or more members of such board are present, or the impartial hearing board established pursuant to subsection (b) of this section, may expel, subject to the provisions of this subsection, any pupil….
(b) For purposes of conducting expulsion hearings as required
by subsection (a) of this section, any local or regional board of education or any two or more of such boards in cooperation may establish an impartial hearing board of one or more persons. No member of any such board or boards shall be a member of the hearing board. The hearing board shall have the authority to conduct the expulsion hearing and render a final decision in accordance with the provisions of sections 4-176e to 4-180a, inclusive, and section 4-181a.
5. It is found that pursuant to §§10-233d(a) and 10-233d(b), G.S., the respondent established an impartial hearing board consisting of one person (hereinafter “board”), which board held a student expulsion hearing on March 7, 2000 (hereinafter “hearing”). It is found that the board exercised complete authority and control over the conduct of the hearing and the issue of expulsion, matters that would ordinarily be decided by the respondent pursuant to §10-233d, G.S. Following the hearing, the board rendered a final decision regarding expulsion.
6. It is also found that the hearing was not open to the public and the board denied the complainant’s request to be permitted to attend the hearing.
7. Section 1-200(2), G.S., defines "meeting" to include “any hearing or other proceeding of a public agency”.
8. Section 1-200(1), G.S., defines “public agency” as:
any executive, administrative or legislative office of the state or any political subdivision of the state and 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.
9. It is concluded that the
hearing held by the board constituted a “hearing or other proceeding”
of the respondent, within the meaning
of §1-200(2), G.S., and therefore, was a “meeting” within
the meaning of such provision.
10. It is also concluded that there is nothing in §10-233d, G.S. that exempts student expulsion hearings from the meeting provisions of the FOI Act.
11. Section 1-225(a), G.S.,
provides, in relevant part: “[T]he meetings of all public agencies, except
executive sessions as defined in subdivision (6) of section 1-200, shall be
open to the public.”
12. Section 1-225(a), G.S., also
requires that a public agency provide the public with at least twenty-four
hours notice prior to the convening of a regular or a special meeting.
13. It is found that neither the respondent, nor the board, provided notice to the public that the hearing would be held. However, individual notice was provided to the student and parents concerned.
14. It is concluded that the
respondent violated §1-225(a), G.S., when it failed to provide at least
twenty-four hours notice to the public that the hearing would be held on March
1-200(6)(E), provides in relevant part that: “Executive session"
means a meeting of a public agency at which the public is excluded for “discussion
of any matter which would result in the disclosure of public records or the
information contained therein described in subsection (b) of section 1-210.”
16. Section 1-210(b)(11), G.S., permits the nondisclosure of: “[N]ames 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 eighteen years of age or older and a parent or guardian of each such student who is younger than eighteen years of age….”
17. Section 1-210(b)(17), G.S., further permits the nondisclosure of “[E]ducational records which are not subject to disclosure under the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g.”
18. “Educational records” are defined at 20 U.S.C. §1232g(a)(4)(A) as those records, files, documents, and other materials which (i) contain information directly related to a student and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.
19. This Commission has concluded that 20 U.S.C. §1232g prohibits public schools that receive federal funding from disclosing information concerning a student that would personally identify that student, without the appropriate consent. See contested case docket #FIC 1999-306, Brenda Ivory v. Vice-Principal, Griswold High School, Griswold Public Schools; and Griswold Public Schools (Final Decision dated January 26, 2000).
20. The respondent submitted records to the Commission for in camera review, which records, it contends, contain information about students that was discussed during the hearing. The respondent further contends that the information contained in the in camera records is exempt from disclosure pursuant to §§1-210(b)(11) and 1-210(b)(17), G.S., because it contains personally identifiable information about students. For identification purposes, the in camera records have been designated IC2000-158-1 through IC2000-158-38.
21. It is found that the in camera records consist of the notice of expulsion hearing sent to the student and the student’s parents, cover letters accompanying decision of the hearing board, decision of the hearing board, list of hearing exhibits, notice of suspension, principal’s incident report, principal’s summary of investigation, student complaint/statement filed with police department, student handbook acknowledgement, student report cards, discipline referral and attendance report.
22. It is found that the in camera records constitute “educational records” within the meaning of 20 U.S.C. §1232g(a)(4)(A) because they (i) contain information directly related to a student and (ii) are maintained by an educational agency or institution.
23. It is also found that the in camera records contain information discussed during the hearing.
24. It is concluded that disclosure of some of the information contained in the in camera records would disclose personally identifiable information about students.
25. It is therefore concluded that the personally identifiable information about students, contained in the in camera records, is permissively exempt from public disclosure pursuant to 20 U.S.C. §1232g(a)(4)(A) and §1-210(b)(11) and §1-210(b)(17), G.S.
26. It is also found that some of the information about students, contained in the in camera records and discussed at the hearing, is unique and very specific to only a few students. In addition, such information is inextricably tied to a particular event. It is found that it would not have been feasible to conduct the hearing in public, or to divide it into public and private portions, and at the same time ensure that personally identifiable information about the few students involved would be protected.
it is concluded that the respondent did not violate §1-225(a), G.S., by
closing the hearing to the public to avoid the disclosure of personally
identifiable information contained in student education records.
28. However, it is concluded that the respondent technically violated the FOI Act by failing to state that the purpose for closing the hearing was to convene in “executive session”, pursuant to §§1-200(6)(E), 1-210(b)(11), 1-210(b)(17), G.S., and 20 U.S.C. §1232g.
29. It is also concluded that because §1-131(a), G.S., provides that attendance at an executive session may be limited to “persons invited by said body to present testimony or opinion pertinent to matters before said body”, the respondent did not violate the FOI Act by denying the complainant’s request that counsel representing other students in separate expulsion hearings be permitted to attend the hearing.
30. In light of the foregoing conclusions, it is not necessary to address the respondent’s further claims that the in camera records, and the matters discussed at the hearing, are exempt from disclosure pursuant to §1-210(b)(2) and §1-210(b)(10), G.S.
31. The Commission does not find that a null and void remedy and civil penalties against the respondent are appropriate in this matter.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Forthwith, the respondent shall prepare and file minutes of the March 7, 2000 hearing in accordance with §§1-225(a) and 1-131a, G.S., such minutes to disclose all persons who attended the hearing. The respondent may redact from such minutes the names of students and their parents, if the appropriate consent to disclose such information is not received.
2. Henceforth, the respondent shall strictly comply with the notice of meeting and executive session provisions of §§1-200(6)(E) and 1-225(a) G.S.
Approved by Order of the Freedom of Information Commission at its special meeting of November 29, 2000.
Ann B. Gimmartino
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 R. Gulash, Esq.
Gulash & Riccio
350 Fairfield Avenue
Bridgeport, CT 06604
Board of Education
Trumbull Public Schools
c/o Dean R. Singewald II, Esq.
Berchem, Moses & Devlin, PC
75 Broad Street
Milford, CT 06460
Ann B. Gimmartino
Acting Clerk of the Commission