FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Richard Malley,  
  Complainant  
  against   Docket #FIC 2009-123

Commissioner, State of Connecticut,

Department of Environmental

Protection; and State of Connecticut,

Department of Environmental

Protection,

 
  Respondents February 24, 2010
       

 

The above-captioned matter was heard as a contested case on August 27, 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 the respondents posted a position for Storekeeper in the Bureau of Financial and Support Services of the Connecticut Department of Environmental Protection [hereinafter “the position”].  It is found that the respondents received applications and conducted interviews for the position.

 

3.      It is found that at the conclusion of the respondents’ interview process for the position, a report and recommendation for hiring/promotion was issued.

 

4.      It is found that by letter dated January 2, 2009, the complainant made a request to the respondents for “all documentation and correspondence, between and among all persons, in formal or informal capacity, involved in the recent filling of the vacant Storekeeper position in the Bureau of Financial and Support Services of the Connecticut Department of Environmental Protection” [hereinafter “DEP”].  The complainant’s request included, but was not limited to, “all correspondence . . . application packets, e-mails and other memoranda, including notes taken by all members of the interview panels, any documents used by any state personnel for all candidates interviewed during the hiring process for the vacant position of Storekeeper.”  The complainant also requested affirmative action applicant flowcharts, and all affirmative action goals, procedures and guidelines relating to the filling of the Storekeeper position.

 

5.      It is found that by letter dated January 6, 2009, the respondents acknowledged receipt of the complainant’s request and advised him that a search for responsive records would be conducted.

 

6.      It is found that by letter dated January 30, 2009, the respondents informed the complainant that all responsive records had been compiled and advised the complainant to make arrangements to have the records provided to him.  It is found that the respondents also informed the complainant that some of the responsive records were exempt from disclosure pursuant to 1-210(b)(6), G.S., including the interviewer’s reports and notes, and the application material submitted by other candidates.

 

7.      It is found that on February 6, 2009, the complainant received a packet of records totaling 85 pages (some of which were redacted) and a chart listing all responsive records and the exemptions that were being claimed for the records that were either redacted or withheld.

 

8.      By letter dated March 5, 2009, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by redacting and withholding records that were responsive to his January 2, 2009 records request.  The complainant specifically alleged that the respondents impermissibly redacted or withheld the following records:

 

a.       the PLD-1 application forms completed by all candidates;

b.      the draft list of candidates;

c.       notes and/reports written by Robert Brandon;

d.      DEP interviewer’s report and recommendations for hiring or promotion; and

e.       the affirmative action related documents.

 

The complainant also alleged that the respondents also impermissibly withheld the list of questions used during the interview process for the position of Storekeeper (hereinafter “interview questions”).

 

9.      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. 

 

10.   Section 1-210(a), G.S., provides in relevant part:

 

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. 

 

11.   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.”

 

12.   It is found that the records described in paragraph 4, above, are public records within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

13.   After the respondents testified at the hearing on this matter that the complainant had been provided with all the records responsive to his requests described in paragraphs 8a and 8e, above, that are maintained by the respondents and that they maintain no other records responsive to those requests, the complainant withdrew his complaint with respect to those two requests.

 

14.   Consequently, the only records that remain at issue are those described in paragraphs 8b, 8c, and 8d, above, and the interview questions.

 

15.   The respondents submitted an un-redacted copy of the records described in paragraph 14, above, for in camera inspection which records have been identified as in camera records #s 2009-123-001 through 2009-123-068.  The in camera records have been described on the in camera index as follows: the actual interview questions used for the storekeeper position; draft versions of the interview questions; handwritten interview notes; the interviewer’s report and recommendations for hiring/promotion; and draft versions of the interviewer’s report and recommendation for hiring/promotion.

 

16.   It is found that the respondents maintain no other records responsive to the complainant’s request than those that have already been provided to him and those described in paragraph 15, above.

 

17.   At the hearing on this matter, and on the index to records submitted for in camera inspection, the respondents contended that all of the in camera records are exempt from disclosure pursuant to 1-210(b)(6), G.S.  The respondents also contended that in camera records #s 2009-123-002 through 54, and #s 2009-123-063 through 68 are exempt from disclosure pursuant to 1-210(b)(1), G.S.

 

18.   Section 1-210(b)(6), G.S., provides in relevant part that nothing in the FOI Act shall require the disclosure of “test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examinations . . . .”

 

19.   In Washington v. FOIC, 25 Conn. L. Rptr. 334 (1999), the Superior Court concluded that, “[b]ased on the testimony at the FOIC hearing,” oral board panelists’ scoring sheets were “the equivalent of a scoring key” which is specifically exempted from disclosure under 1-210(b)(6), G.S.

 

20.   The Commission has previously interpreted Washington to mean that certain oral examination data were exempt from disclosure pursuant to 1-210(b)(6), G.S.  See Docket #FIC 2000-501, Randal Edgar et al. v. Waterbury Superintendent of Schools (scores assigned by interviewers to each candidate for the position of superintendent of schools constitute examination data used to administer an examination for employment within the meaning of 1-210(b)(6), G.S., and Washington v. FOIC);  Docket #FIC 2003-377, Casey v. Department of Correction (forms containing questions asked by the interview panel, candidates’ responses, ratings given by the interview panel members and any comments made by such members constituted 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., and Washington v. FOIC); Docket #FIC 2001-006, Murray v. Hartford Personnel Director (scoring sheets of each of the oral board panelists for each candidate constitute examination data within the meaning of 1-210(b)(6), G.S., and Washington v. FOIC); Docket #FIC 2000-649, Scharf v. Ridgefield Police Commission (the numerical score given to each candidate by each panelist for every question asked constitutes examination data used to administer an examination for employment within the meaning of 1-210(b)(6), G.S.).

 

21.   Based on careful review, it is concluded that the in camera records are permissibly exempt from disclosure pursuant to 1-210(b)(6), G.S.

 

22.  Having concluded that the records are exempt under 1-210(b)(6), G.S., it is unnecessary to address the respondents’ additional claims of exemption.

 

23.   It is concluded that the respondents did not violate the FOI Act as alleged in the complaint.

 

 

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

 

1.      The complaint is hereby dismissed.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 24, 2010.

 

____________________________

S. Wilson

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 Malley

C/o Marc P. Mercier, Esq.

Beck & Eldergill, PC

447 Center Street

Manchester, CT 06040

 

Commissioner, State of Connecticut,

Department of Environmental

Protection; and State of Connecticut,

Department of Environmental

Protection

C/o Melisa Chan, Esq. and

Melinda M. Decker, Esq.

79 Elm Street

Hartford, CT 06106

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-123FD/sw/2/26/2010