FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Karen Osbrey and

WINY Radio,

 
  Complainants  
  against  

Docket #FIC 2008-536

Board of Education,

Putnam Public Schools,

 
  Respondent February 11, 2009
       

 

The above-captioned matter was heard as a contested case on November 7, 2008, at which time the complainants and the respondent appeared 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 respondent is a public agency, within the meaning of 1-200(1), G.S.

 

2.  It is found that, on August 11, 2008, the complainant Osbrey (“Osbrey”) visited the town hall, and made a written request for access to “the Superintendent’s latest performance evaluation (“evaluation”).  

 

3.  It is found that, on August 13, 2008, the complainants “filed a written request with [the respondent] for a copy of the separation agreement between former Superintendent Margo Marvin and [the respondent]” (“separation agreement”).  

 

4.  By letter of complaint dated, received and filed August 14, 2008, the complainants appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to promptly comply with the requests described in paragraphs 2 and 3, above.

 

            5.  Section 1-200(5), G.S., provides:

 

“Public records or files” means any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

6.  Section 1-210(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, 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 (1) inspect such records promptly during regular office or business hours . . . (3) receive a copy of such records in accordance with section 1-212.

 

            7.   Section 1-212(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.”

 

8.  It is found that the records described in paragraphs 2, and 3, above, are public records and must be disclosed in accordance with 1-200(5), 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 

 

9.  With regard to the request described in paragraph 2, above, it is found that when Osbrey visited the town hall on August 11, 2008, she was told by a staff member that the evaluation “was not on file” at the respondent’s office, and that “there was a four-day waiting period” before she could view or obtain a copy of such record.  It is also found that, thereafter, Osbrey contacted the attorney for the respondent, who told her that a copy of the evaluation would be made available to her at 9:00 am the next morning. 

 

10.  It is found that the evaluation was not physically located at the respondent’s office on August 11, 2008, when Osbrey requested a copy of it.

 

11.  It is found that, on the morning of August 12, 2008, the respondent provided Osbrey with a copy of the evaluation, described in paragraph 2, above, despite the statement regarding a “four-day waiting period,” described in paragraph 9, above.

 

12.  At the hearing in this matter, Osbrey testified that she believed the respondent should have made the record described in paragraph 2, above, immediately available to her, upon demand, on August 11, 2008, and that its failure to do so violated the FOI Act.  She further stated her belief that the staff member’s citation of a so-called “four-day” rule to deny her prompt access to the evaluation also violated the FOI Act.

           

13.  With respect to the complainants’ claim that the respondent’s failure to provide immediate access to the records violated the FOI Act, it is concluded that the law does not require “immediate” access to records upon demand, but rather, permits a person the right to inspect public records “promptly.”  The Commission has held that the meaning of the word “promptly” is a particularly fact-based question.  In Advisory Opinion #51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982), the Commission advised that the word “promptly,” as used in 1-210(a), G.S., means quickly and without undue delay, taking into consideration all of the factors presented by a particular request. 

 

14.  It is found that, based upon the facts and circumstances of this case, the complainants promptly received a copy of the record described in paragraph 2, above.  The Commission notes, however, that the Act imposes no “four-day” waiting period upon a public agency with regard to compliance with a records request.

 

Rather, 1-206, G.S. … simply provides a requester with the ability to file an appeal in the event an agency fails to respond to the request.  After four business days have elapsed, if no response is received from an agency, then such non-response is deemed a denial for purposes of triggering the requester’s right to file an appeal without having to wait indefinitely for a response that may never be forthcoming.

 

Burton M. Weinstein v. Assistant Attorney General, State of Connecticut, Office of the Attorney General, et al., Docket #FIC 1999-494 (May 10, 2000).

 

15.  It is concluded that the respondent did not violate 1-210(a) and 1-212(a), G.S., as alleged in the complaint, with regard to the request described in paragraph 2, above.

 

16.  With regard to the request described in paragraph 3, above, it is found that Osbrey had a conversation with both the chairman of, and counsel for, the respondent, who each told her there was “a seven-day waiting period” for the separation agreement, so that either party to the agreement would have an opportunity to rescind such agreement.  It is further found that each told Osbrey she could have a copy of the separation agreement after the expiration of the seven-day waiting period.    

 

17.  It is found that, on August 20, 2008, the respondent provided the complainants with a copy of the separation agreement described in paragraph 3, above.

 

18.  At the hearing in this matter, the respondent contended that the record described in paragraph 3, above, was exempt from disclosure at the time it was requested, pursuant to 29 U.S.C. 626(f)(1)(G), 1-210(b)(1), and 1-210(b)(4), G.S.

 

 

19.  29 U.S.C. 626(f)(1)(G), concerning “waiver,” in an age discrimination in employment action,  provides:

 

An individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary.  Except as provided in paragraph (2), a waiver may not be considered knowing and voluntary unless at a minimum—

…(G) the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired.

 

20.  Section 1-210(b)(1), G.S., provides that “[n]othing in the Freedom of Information Act shall be construed to require disclosure 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.”

 

            21.   According to the respondent, the separation agreement, described in paragraph 3, above, was a preliminary draft within the meaning of 1-210(b)(1), G.S., because, under 29 U.S.C. 626(f)(1)(G), such agreement was not a “final document” until the expiration of the seven day revocation period.

 

22.  It is found that the separation agreement was fully executed on August 11, 2008.  It is concluded, as a matter of law, that the existence of a revocation clause in a fully executed agreement, does not render such document a “preliminary draft” within the meaning of the FOI Act. 

 

23.  Moreover, it is found that the respondent failed to produce any evidence at the hearing that the respondent made a determination, or even considered, whether the public interest in withholding such record clearly outweighed the public interest in disclosure, within the meaning of 1-210(b)(1), G.S.

 

24.  It is therefore concluded that the record described in paragraph 3, above, is not exempt from disclosure by virtue of 1-210(b)(1), G.S., or 29 U.S.C. 626(f)(1)(G).

           

            25.  The respondent also contended, at the hearing in this matter, that the separation agreement described in paragraph 3, above, was exempt from disclosure at the time it was requested, pursuant to 1-210(b)(4), G.S.  That provision states that: 

 

“[n]othing in the Freedom of Information Act shall be construed to require disclosure of … [r]ecords pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been fully adjudicated or otherwise settled….”

 

            26.  Section 1-200(8), G.S., defines “pending claim” as “a written notice to an agency which sets forth a demand for legal relief which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.”

 

  27.   Section 1-200(9), G.S., defines “pending litigation” as:

 

(A) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency; (B) the service of a complaint against an agency returnable to court which seeks to enforce or implement legal relief or a legal right; or (C) the agency’s consideration of an action to enforce or implement legal relief or a legal right.

 

            28.  According to the respondent, the separation agreement, described in paragraph 3, above, was, at the time it was requested, a record pertaining to strategy and negotiations with respect to a “termination hearing.”  

 

            29.  It is found that the respondent determined that the superintendent’s performance during 2007-2008 was unacceptable, and that the respondent intended to commence a hearing to consider termination of her contract prior to its expiration, unless the superintendent and the respondent could come to an agreement by which the superintendent would resign.

 

            30.  It is found that such “termination hearing” never occurred, because the superintendent elected to resign in accordance with the terms of the separation agreement, described in paragraph 3, above.

 

            31.  It is found that the respondent failed to prove that the possibility that it might hold a termination hearing to terminate the superintendent’s contract is a “pending claim” or “pending litigation” within the meaning of 1-200(8) or 1-200(9), G.S. 

 

            32.  Moreover, even if such “termination hearing” constitutes a “pending claim” or “pending litigation,” within the meaning of 1-200(8) or 1-200(9), G.S., it is found that, as of August 13, 2008, the date the complainant requested a copy of the record described in paragraph 3, above, such termination hearing was no longer pending, because the separation agreement was fully executed and final on August 11, 2008. 

 

            33.  It is therefore concluded that the respondent violated the FOI Act by failing to promptly provide the complainants with a copy of the record described in paragraph 3, above.

 

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

 

1.  Henceforth, the respondent shall strictly comply with the promptness provisions of the FOI Act.

           

Approved by Order of the Freedom of Information Commission at its regular meeting of February 11, 2009.

 

 

____________________________

Petrea A. Jones

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:

 

Karen Osbrey and

WINY Radio

45 Pomfret Street

Putnam, CT 06260

 

Board of Education,

Putnam Public Schools

c/o Frederick L. Dorsey, Esq. and

Daniel P. Murphy, Esq.

Siegel, O’Connor, O’Donnell & Beck, P.C.

150 Trumbull Street

Hartford, CT 06103

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

 

 

 

FIC/2008-536FD/paj/2/18/2009