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 2009-519

Commissioner, State of Connecticut,

Department of Education; and State

of Connecticut, Department of Education,

 
  Respondents June 23, 2010
       

 

The above-captioned matter was heard as a contested case on January 12, 2010 and April 5, 2010, at which times the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. Following the January 12, 2010 hearing, this matter was intentionally held in abeyance until a companion case, Docket #FIC 2009-176, bearing the same heading as the present matter, could be finally adjudicated (see paragraph 12 below for full discussion). 

 

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 July 13, 2009, the complainant made a request to the respondents for copies of: a) “all public records received or created by you after February 23, 2009 related to the evaluation and appointment of Impartial Hearing Officers as a result of your October 2008 solicitation”; b) records related to each applicant or appointee which discloses “name, race, color, religious creed, date of birth, gender, marital status, national origin, ancestry and alienage”; and c) information previously requested in letters dated January 26, 2009 and February 23, 2009.

 

3.         It is found that, by letter dated August 7, 2009, the respondents provided the complainant with certain records in response to his July 13, 2009 request, but denied the request for the balance of the records the complainant requested (the “requested records”). 

 

4.         By letter dated and filed on September 8, 2009, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information Act (“FOIA”) by failing to fully comply with the provisions of 1-210(a) and 1-212(a), G.S.

 

5.      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. 

 

6.      Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:

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, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

 

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. 

 

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

 

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

 

8.       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.

 

9.      The Commission takes administrative notice of the finding in Docket #FIC 2009-176 and it is found that the solicitation for the relevant 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. . . .

 

10.   It is found that, as a result of the October 2008 solicitation, nineteen individuals applied for the position described in paragraph 9, above; nine were screened for interviews; and six were selected to serve four year terms as hearing officers. 

 

11.   It is found that the respondents provided the Commission with the requested records for in camera inspection. At the April 5, 2010 hearing, the respondents consented to having only the titles on the actual in camera records placed in the public record. (These titles on the actual records vary to a degree from the descriptions of the records on the in camera index). The records are in five groups as follows: a) “Statement of Facts for Interview” (Record 1 on the in camera index); b) “Interview Questions” (Record 2 on the in camera index); c) “Discussion Issues of Fact Statement” (Record 3 on the in camera index); d) “Candidate Rating Sheet” (Record 5 on the in camera index, which individual records have been lettered by the hearing officer as pages a) through u)); and e) “Candidate’s Qualifications As Demonstrated in Their Resume and Writing Sample” (Record 4 on the in camera index).

 

12.   The Commission takes administrative notice that the records described at 11.e), above, were addressed in the final decision of a companion case, Docket #FIC 2009-176. That final decision determined that scoring sheets used to decide whether to offer an applicant an interview were not within the exemption set forth at 1-210(b)(6), G.S., because they related only to an “initial screening process” (paragraph 27). At the April 5, 2010 hearing in the present case, the respondents stated that the records described at paragraph 11.e), above, have now been disclosed to the complainant. The final decision in Docket #FIC 2009-176 also stated, however, that: “the interview might ultimately contain test questions” (paragraph 27). But because the records described at paragraph 11.a) through d), above, did not exist at the time of the relevant records requests in Docket #FIC 2009-176, the final decision therein did not address these records (paragraph 20). The records described at paragraph 11.a) through d), above, are the records that remain at issue in the present case.       

 

13.   At the hearings in this matter, and on the in camera index, the respondents claimed that the records described at paragraph 11.a) through 11.d) are exempt from mandatory disclosure pursuant to 1-210(b)(6), G.S. (The respondents also claimed the exemption for preliminary drafts and notes, pursuant to 1-210(b)(1), G.S., for the records described at paragraph 11.d), above.) The complainant based his claim that 1-210(b)(6), G.S., was not applicable on his contention that the applicants herein were not taking an examination for “employment”, but rather for personal service agreements as independent contractors. The complainant introduced evidence that the respondents had claimed before the Commission on Human Rights and Opportunities (“CHRO”) that the impartial hearing officers were not in an “employment” relationship because they were paid on a per diem basis. The respondents countered that, in the CHRO proceeding, the complainant had argued that the impartial hearing officers were in an “employment” relationship. 

 

14.   It is concluded that, for the unique and separate statutory framework of the FOIA, it would not be logical to distinguish between examinations administered to persons serving under contract and those serving as state employees. The Commission takes administrative notice that whether a position is filled with a state employee or pursuant to a personal service agreement is often determined by administrative and budgetary considerations. It is concluded that the purpose of 1-210(b)(6), G.S., is to protect the integrity of future examinations, whether the examination be for a position as a state employee or as an independent contractor of the state. See Docket #FIC 1996-080, Veach v. Commissioner, State of Connecticut, Department of Administrative Services (examination for promotion held to be an examination for employment). The terms “employee” and “independent contractor” both fall within the term “employment”. Board of Education of the Town of Ridgefield v. FOIC, 217 Conn. 153, 160 (1991) (“even when construing statutory language narrowly, however, we cannot ignore the plain meaning of the words of the statute.”)

                                                                                                                

15.   It is concluded that the examination for impartial hearing officers at issue herein was an “examination for employment” as that term is utilized in 1-210(b)(6), G.S.

 

16.   Based upon the in camera review, it is found that: a) the “Statement of Facts for Interview” (paragraph 11.a, above) is similar in form to a traditional law school examination question and is a standardized test question that was used for all applicants interviewed; b) the “Interview Questions” (paragraph 11.b, above) are additional  standardized test questions that were used to assist the interviewers for all applicants interviewed; c) the “Discussion Issues of Fact Statement” (paragraph 11.c, above) listing the relevant issues to be used to evaluate the applicants’ interviews are other examination data similar to a scoring key; and d) the “Candidate Rating Sheet” (paragraph 11.d, above) are the rating sheets compiled by the interviewers to evaluate the applicants’ interviews; pages a) through n) contain on all pages the factors to be rated and the name of the rater; pages a) through n) also contain on most pages detailed notes of the individual interviewer that support assigned numerical ratings; pages o) through u) are summaries of the ratings for each applicant, without any listing of factors considered or verbal comments that support assigned numerical ratings; pages o) through u) are examination results, with only four numerical ratings followed by a “total rating” for each candidate.

 

17.   It is concluded, therefore, that the “Statement of Facts for Interview” (paragraph 11.a, above) and the “Interview Questions” (paragraph 11.b, above) are “test questions” that are permissibly exempt under 1-210(b)(6), G.S. City of Stamford v. FOIC, No. CV 990497667S, Sup. Ct., Judicial District of New Britain at New Britain (Cohn, J.) (December 6, 1999) (exemption at 1-210(b)(6), G.S., applies to standard test questions and materials related thereto).

 

18.   It is also concluded that the “Discussion Issues of Fact Statement” (paragraph 11.c, above) is “other examination data” that is permissibly exempt under 1-210(b)(6), G.S. City of Stamford v. FOIC, supra, p. 5 (discussion of ejusdem generis: “things of the same general kind or character as those specified in the particular enumeration”); Patricia Washington, Personnel Director of the City of Hartford v. FOIC, CV 98 0492644S, Superior Court, Judicial District of New Britain, August 31, 1999.

 

19.   It is also concluded that pages a) through n) of the “Candidate Rating Sheet” (paragraph 11.d, above) are “other examination data” that is permissibly exempt pursuant to 1-210(b)(6), G.S. As in Patricia Washington, Personnel Director of the City of Hartford v. FOIC, supra, pages a) through n) of the “Candidate Rating Sheet” (paragraph 11.d, above) “are the equivalent of a scoring key” (id. at 10), because they disclose the factors to be rated and the name of the rater, as well as on most pages detailed notes of the individual interviewer that support assigned numerical ratings.

  

20.   It is also concluded that pages o) through u) of the “Candidate Rating Sheet” (paragraph 11.d, above), as examinations results, were not “used to administer” the examination, and therefore are not permissibly exempt pursuant to 1-210(b)(6), G.S. The Commission has previously held that “final scores of applicants on an oral interview examination” are subject to mandatory disclosure. Docket #FIC 2006-291; Donna Porstner and the Stamford Advocate v. Fire Commission, City of Stamford.     

 

21.   It is further concluded that pages o) through u) of the “Candidate Rating Sheet” (paragraph 11.d, above), as examination results showing the final “total rating” for each candidate, are not “preliminary drafts and notes” pursuant to 1-210(b)(1), G.S.

 

22.   Finally, it is also concluded that the respondents did violate the disclosure provisions of 1-210(a) and 1-212(a), G.S., by declining to provide the complainant with pages o) through u) of the “Candidate Rating Sheet” (paragraph 11.d), 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 copies of pages o) through u) of the “Candidate Rating Sheet” (Record 5 on the in camera index) to the complainant without charge.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 23, 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

 

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/2009-519FD/paj/6/28/2010