FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Richard H. Kosinski,  
  Complainant  
  against   Docket #FIC 2009-176

Commissioner, State of Connecticut,

Department of Education; and State

of Connecticut, Department of Education,

 
  Respondents February 16, 2010
       

 

The above-captioned matter was heard as a contested case on August 14, 2009, 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.

 

2.         It is found that by letter dated January 26, 2009, to the respondents, the complainant made a request, in part, for a copy of the “complete files” related to the State Board of Education Impartial Hearing Officers employment solicitation.

 

3.         It is found that by letter dated February 3, 2009, the respondents provided the complainant with two records in response to his January 26, 2009 request, described in paragraph 2, above. 

 

4.         It is found that by letter dated February 23, 2009, to the respondents, the complainant clarified that his January 26, 2009 request was for any and all records related to the State Board of Education Impartial Hearing Officers employment solicitation which records include “each and every communication received or generated [by the respondents] related to or as a result of the solicitation, including but not limited to, letters of application, resumes, writing samples, professional references, and evaluation notes.” 

 

5.      It is found that the respondents compiled 348 pages of records after receiving the complainant’s February 23, 2009 request, and informed him, by letter dated March 4, 2009, that they were available and would be provided to him once he paid the copying fees.

 

6.      It is found that the records were provided to the complainant, with redactions, by cover letter dated March 19, 2009. 

 

7.         By letter dated March 26, 2009, and filed on March 30, 2009, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to fully comply with the provisions of 1-210(a) and 1-212(a), G.S.

 

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

 

“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. 

 

9.      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 receive a copy of such records in accordance with section 1-212. . . .

 

10.   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.”

 

11.   It is concluded that the requested records are public records within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

12.   At the hearing on this matter, the complainant contended that the redactions were not appropriate and that the respondents failed to promptly comply with his January 26, 2009 request.  The complainant also questioned whether he was provided with all responsive records since one of the letters of reference submitted by him, as part of his application, was not included in the records that he was provided. 

 

13.   It is found that the solicitation for the position stated the following:

 

Connecticut State Board of Education Impartial Hearing Officers

 

Qualified applicants who wish to serve as per diem Impartial Hearing Officers for the State Board of Education for due process hearings regarding transportation, residency, student expulsions, educator certificate revocations and denials of permits should submit a letter of application, resume, writing sample and two professional references by November 14, 2008.

 

Applicants must have (1) two years of successful experience as a due process hearing officer, (2) knowledge of the Uniform Administrative Procedures Act and (3) general knowledge of public education and the delivery of instruction in the public schools.  Please submit a letter of application, resume, writing sample and two professional references by November 14, 2008. . . .

 

14.   It is found that nineteen individuals applied for the position described in paragraph 13, above. 

 

15.  It is found that three individuals screened the nineteen applicants to determine who would be interviewed for the position by evaluating their resumes, references and writing samples, using five specified criteria.  It is found that each screener was given a scoring sheet for each applicant, with the five criteria printed on each sheet and a line for the screener to write a score ranging from one to five.  It is found that the process generated three scoring sheets for each applicant – a total of fifty-seven scoring sheets. 

 

16.   It is found that the respondents redacted the five criteria from each scoring sheet. 

 

17.   It is found that from the fifty-seven scoring sheets, the respondents generated a master scoring sheet for each of the three screeners - a total of three sheets.  It is found that each sheet listed the name of all nineteen applicants with the screener’s score for each criterion and the total score given to that applicant.  It is found that the respondents redacted the individual scores given for each criterion from the master scoring sheets. 

 

18.   It is found that the respondents also generated one document described as the “screener’s tally” which listed all nineteen applicants and included the total score given to each applicant by each screener and the sum of those three scores.  It is found that the respondents disclosed the sum of the three screeners’ scores but redacted the total score given by each screener to each applicant. 

 

19.   It is found that the respondents provided the Commission with certain un-redacted records for in camera inspection which records have been identified as in camera records #FIC 2009-176-001 through #FIC 2009-176-082 which were divided into five groups as follows: group #1 is the fact pattern for the interview; group #2 is a list of the “discussion issues” related to the fact pattern; group #3 are the interview questions; group #4 are the scoring sheets completed by the screeners to evaluate each application in order to decide whether to offer the applicant an interview; and group #5 are the candidate rating sheets completed by the interviewers to evaluate the applicants’ interviews. 

 

20.   It is found that the records in group #4, identified as in camera records #FIC 2009-176-004 through 2009-176-067 are the only records that existed at the time of the complainant’s January 26 and February 23, 2009 requests and that remain at issue in this matter.  It is found, therefore, that in camera records #FIC 2009-176-004 through 2009-176-067 are the only in camera records that were responsive to the complainant’s January 26 and February 23, 2009 requests.  Thus, they are the only records that will be addressed herein.

 

21.   At the hearing on this matter, and on the in camera index, the respondents claimed that the five criteria and the scores used to screen the applicants are exempt from mandatory disclosure pursuant to 1-210(b)(6), G.S., as other examination data used to administer an examination for employment.  The respondents contended that if the resume, writing sample, references, the five criteria, and the scores, are all disclosed, applicants would know what the respondents considered to be a successful applicant and would adjust their applications accordingly.  The respondents contend that this would be providing an unfair advantage akin to providing the test questions and the answers.  

 

22.   However, the complainant contended, at the hearing on this matter, that the screening process used by the respondents, as described in paragraph 15 through 18, above, is not an “examination for employment” within the meaning of 1-210(b)(6), G.S., and therefore, he should have been provided with an unredacted copy of the records described in paragraphs 15 through 18, above.

 

23.   Section 1-210(b)(6), G.S.,  provides in relevant part that nothing in the FOI Act shall be construed to require the disclosure of:

 

(6) Test questions, scoring keys and other examination data used to administer . . . [an] examination for employment ….

 

24.   It is concluded that the phrase “test questions” within the meaning of 1-210(b)(6), G.S., applies to standard test questions and materials related thereto.   See City of Stamford v. FOIC, No. CV 990497667S, Sup. Ct., Judicial District of New Britain at New Britain (Cohn, J.) (December 6, 1999).  (Stating that the exemption in 1-210(b)(6), G.S., applies to standard test questions and materials related thereto.)

 

25.   The Second College Edition of the American Heritage Dictionary defines application as “a request, as for . . . employment . . . the form or document upon which such a request is made.”

 

26.   It is found that, in this case, the letter of application along with the resume, writing sample and two professional references constitute the applicant’s request to be considered for employment by the respondent, and not their response, or answer, to test questions. 

 

27.   It is found that while the respondents, by the use of criteria and ratings, applied a systematic method for determining which candidates would be offered an interview, such criteria and scores do not 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., because the criteria was used as an aid to each screener in their decision to recommend that the applicant be interviewed, rather than a test administered to the applicant.  It is found that while the interview might ultimately contain test questions, the initial screening process did not.

 

28.   It is concluded, therefore, that the criteria and the scores are not permissibly exempt under 1-210(b)(6), G.S.

 

29.   It is also concluded that the respondents violated the disclosure provision of 1-210(a) and 1-212(a), G.S., by failing to provide the complainant with an unredacted copy of in camera records #FIC 2009-176-004 through 2009-176-067, described in paragraph 20, above. 

 

30.   With respect to the complainant’s contention that the respondents failed to promptly comply with his request, the meaning of the word “promptly” is a fact-based question that has been previously addressed by the FOI Commission.  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.  

 

31.   It is found that upon receipt of the complainant’s January 26, 2009 request, the attorney who responded had not received a records request under the FOI Act for over twenty years and that it did not occur to him that the complainant actually wanted the application materials from all nineteen applicants.  Thus, he sent only the two records that he believed were appropriately responsive, as described in paragraph 3, above.

 

32.   It is found, however, that all of the responsive records were readily available and that the respondents were able to compile the records, review, redact and copy them within a week of receiving the complainant’s February 23, 2009 letter.

 

33.   It is found that the complainant’s January 26, 2009 request was clear and that the application materials from all nineteen applicants, and the records generated by the screeners, fell within the scope of that request.  It is found, therefore, that the respondents’ initial provision of only two records was unreasonable.

 

34.   It is found that, although it was not willfully done, the respondents unduly delayed fully complying with the complainant’s January 26, 2009 records request.

 

35.   It is concluded, therefore, that the respondents failed to promptly comply with the complainant’s January 26, 2009 request within the meaning of 1-212(a), G.S.

 

36.   With respect to the complainant’s contention that the respondents may not have provided all responsive records, it is found that the attorney who managed the application process personally handled the complainant’s records request.

 

37.   It is also found that the aforementioned attorney conducted the search for, and retrieval of, the responsive records by compiling the application files which he personally maintained, by searching his computer for any documents or e-mails, and by directing his assistant to search her computer for any documents or e-mails related to the application process.

 

38.   It is found that the respondents did not intend to omit any responsive records nor are they aware of any records that may not have been provided. 

 

39.   It is found, therefore, that, based upon the credible testimony at the hearing on this matter, the respondents have provided the complainant with a copy of all records responsive to his January 26 and February 23, 2009 requests that they maintain, with the exception of the redacted records described, above.

 

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 an unredacted copy of the in camera records described in paragraph 20, above.

2.      Henceforth, the respondents shall strictly comply with the disclosure and promptness provisions of 1-210(a) and 1-212(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 16, 2010.

 

 

___________________________

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:

 

Richard H. Kosinski

106 Farmington Avenue, Suite 2B

New Britain, CT 06053-2982

 

Commissioner, State of Connecticut,

Department of Education; and State

of Connecticut, Department of Education

c/o Emily V. Melendez, Esq.

Assistant Attorney General

55 Elm Street

PO Box 120

Hartford, CT 06141-0120

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

 

FIC/2009-176FD/paj/2/17/2010