FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
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Jeffrey T. Roets and the Wethersfield Federation of Teachers, |
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| Complainants | |||
| against | Docket #FIC 2010-069 | ||
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Superintendent of Schools, Wethersfield Public Schools; and Wethersfield Public Schools, |
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| Respondents | December 15, 2010 | ||
The above-captioned matter was heard as a contested case on June 2, 2010, at which time the complainants 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. By email dated and filed February 3, 2010 with the Commission, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information (hereinafter “FOI”) Act by failing to provide the complainants with unredacted copies of records described in paragraph 3, below.
3. It is found that by letter dated January 29, 2010, the complainants requested “the full report from the Board of Education’s investigation into the alleged grade changing affair; a report delivered to the Board of Education on Wednesday, January 20 and Tuesday, January 26”. Such report specifically relates to an internal investigation into allegations of misconduct by the former superintendant of Wethersfield Public Schools and chairperson of the Wethersfield Board of Education. The alleged misconduct involved, permitting the chairperson’s son, a graduating student of Wethersfield High School, to retake a course, thereby improving his grade as reflected on his high school transcript (hereinafter the “requested records’ or, alternatively, “requested report”).
4. It is found that by letter dated February 1, 2010, the respondent superintendent acknowledged the complainants’ request described in paragraph 3, above, stating that, “[a]t present, the report is a confidential attorney-client privileged document, exempt from disclosure under the [FOI] Act.” The respondent superintendent also stated that “the Board of Education intends to release the report, and it is currently discussing how best to release the report in a manner consistent with the Board’s obligations under the Family Education Rights and Privacy Act (FERPA), a federal law requiring that personally-identifiable student information not be released without parent consent.” The respondent superintendent further stated that the respondents would inform the complainants “promptly as soon as the Board of Education makes its decision.”
5. It is found that on February 11, 2010, the respondents provided the complainants with a redacted copy of the requested records and subsequently made such records available on its website.
6. Section 1-200(5) G.S., defines “public records or files” as:
Any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, … whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.
7. 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.
8. Section 1-212(a), G.S., provides in relevant part that “any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”
9. It is found that the records requested by the complainants, to the extent that they are maintained or kept on file by the respondents, are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
10. At the hearing on this matter, the complainants stipulated to the fact that the respondents provided them with a redacted copy of the requested report. However, the complainants contend that what they believe to be the content of the unredacted version of such report publicly brings into question the reputation of a member of the Wethersfield Federation of Teachers, who was interviewed as part of the investigation. The complainants also contend that they are unable to defend the reputation of such member because they have been denied an unredacted copy of the requested report.
11. The respondents claim that §1-210(b)(17), G.S., exempts portions of the requested records from mandatory disclosure. Section 1-210(b)(17), G.S., provides that disclosure is not required of “[e]ducational records which are not subject to disclosure under the Family Educational Rights and Privacy Act, 20 USC 1232g . . . . .” (hereinafter “FERPA”). The respondents also claim that they provided the complainants with a redacted copy of the requested report and removed “all personally identifiable information about the student … in compliance with the [FERPA]…, 20 U.S.C. 1232g”. The respondents further claim that the redacted portions of the requested records contain “education records” under FERPA because such records contain “personally identifiable information” about a student, as defined in the regulations implementing FERPA at 34 C.F.R. §99.3.
12. “Education 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.
13. 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).
14. Title 34 §99.3 of the Code of Federal Regulations provides that:
Personally Identifiable Information
The term includes, but is not limited to--
(a) The student's name;
(b) The name of the student's parent or other family members;
(c) The address of the student or student's family;
(d) A personal identifier, such as the student's social security number, student number, or biometric record;
(e) Other indirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name;
(f) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or
(g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.
15. It is found that the complainants concede that they know the identity of the student to whom the requested records relate to.
16. After the hearing in this matter, the respondents submitted unredacted copies of the records at issue in this matter for in camera inspection, which pages shall be identified herein as IC#2010-069-1 through IC#2010-069-24.
17. Based upon a careful inspection of the in camera records that the respondents claim to be exempt pursuant to FERPA, it is found that the portions of the requested records redacted by the respondents constitute “personally identifiable information” under 34 C.F.R. §99.3.
18. It is also concluded that to the extent portions of the requested report described in paragraph 3, above, constitute “personally identifiable information” about the student, who was the subject of the investigation report, such records constitute “education records” as defined at 20 U.S.C. §1232g(a)(4)(A).
19. It is concluded, therefore, that the redacted portions of the requested report are educational records that are exempt from disclosure pursuant to §1-210(b)(17), G.S.
20. It is therefore concluded that the respondents did not violate §§1-210(a) and 1-212(a), G.S., as alleged in the complaint, by withholding portions of the requested report containing “education records” exempt under FERPA.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is dismissed.
Approved by Order of the Freedom of Information Commission at its special meeting of December 15, 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:
Jeffrey T. Roets and the Wethersfield
Superintendent of Schools, Wethersfield
Public Schools; and Wethersfield Public
Schools
c/o Thomas B. Mooney, Esq.
Shipman & Goodwin LLP
One Constitution Plaza
Hartford, CT 06103
____________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2010-069/FD/paj/12/20/2010