FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Edward R. Foley, Jr.,  
  Complainant  
  against   Docket #FIC 2010-493

Superintendent of Schools,

East Haven Public Schools; and

East Haven Public Schools,

 
  Respondents May 25, 2011
       

 

The above-captioned matter was heard as a contested case on January 11, 2011, at which times the complainant and the respondents 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 respondents are public agencies, within the meaning of 1-200(1), G.S.

 

            2.  It is found that, by email dated June 14, 2010, the complainant requested copies of “all letters, memoranda, emails or documents concerning the handling of [ ]student records or [ ] medical records at the East Haven High School or Joseph Mellilo Middle School within the past year.”  [Emphasis in original]. 

 

3.  It is found that, by email dated June 16, 2010, the respondents acknowledged receipt of the request, described in paragraph 2, above, and asked the complainant to clarify whether he was seeking medical records of students or medical records of employees in the district.  It is found that the respondents also informed the complainant, in their June 16 email, that “the volume of materials to review may take longer than four (4) business days due to the end of the year commitments we have.” 

 

4.  It is found that, by email dated June 16, 2010, the complainant informed the respondents that he was seeking “student records.  Not the records themselves of course.  Just any documents regarding their handling.”

 

5.  It is found that, by email dated July 6, 2010, the complainant, having not received any further response to his request, inquired as to the status of such request.

 

6.  It is found that, on July 7, 2010, the attorney for the East Haven Board of Education (“Board”) called the complainant and told him the requested records “would be put in the mail.”  It is found that on July 10, 2010, the complainant received a letter in the mail from the attorney stating that “Board…personnel is reviewing records and the legal limitations on disclosure to ensure your request is met in full while respecting all the Board’s legal obligations.”

 

7.  By letter of complaint dated August 8, 2010, and filed on August 10, 2010, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with the request for records described in paragraph 2, above.

 

            8.  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.

 

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 (1) inspect such records promptly during regular office or business hours . . . (3) 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 found that the records described in paragraph 2, 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. 

 

12.  It is found that, in June 2010, the respondent superintendent became aware of allegations that records of students at the high school had been inappropriately accessed, and that attendance records of certain students, namely, the children of certain members of the Board, had been altered. 

 

13.  It is found that, at the end of June, 2010, the superintendent, the assistant superintendent, and the chairman of the Board, met with their attorney and, together, decided to hire an independent investigator to investigate the allegations described in paragraph 12, above. 

 

14.  It is found that the investigation, described in paragraph 13, above, commenced sometime after July 4, 2010, and a final report, detailing the results of the investigation, was issued to the superintendent and the Board on August 24, 2010 (the “Markle Report”).   

 

15.  At the hearing in this matter, the complainant stated that he was also seeking a copy of the Markle Report, and that he had not yet, as of the date of the hearing, been provided with a copy of any records responsive to the request, described in paragraph 2, above.

 

16.  Although it is found that the Markle Report pertains to the handling of student records, it is further found that the Markle Report did not exist at the time such request was made, and is therefore not responsive to the request described in paragraph 2, above. 

 

17.  At the hearing in this matter, in response to the hearing officer’s inquiry, the respondents acknowledged that they maintain records responsive to the request, described in paragraph 2, above, such as copies of their policies regarding the handling of student records, and that they failed to provide such records to the complainant. 

 

18.  The respondent superintendent testified, and it is found, that the reason the respondents failed to provide the complainant with the additional responsive records was because they were “overwhelmed with the investigation;” they “thought the lawyers were handling it;” and they “didn’t think of giving him the policies.”

 

19.  It is concluded that the respondents violated the FOI Act when they failed to provide the complainant with all records responsive to the request, described in paragraph 2, above.

 

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

 

            1.  Forthwith, the respondents shall provide to the complainant, free of charge, a copy of all records responsive to the request, described in paragraph 2, above, that they maintained at the time of such request.

 

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

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 25, 2011.

 

__________________________

Cynthia A. Cannata, 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:

 

Edward R. Foley, Jr.

22 Ure Avenue

East Haven, CT  06512

 

Superintendent of Schools, East Haven Public Schools; and

East Haven Public Schools

c/o Michael J. Luzzi, Esq. and  Michael Dolan, Esq.

Donal & Luzzi LLC

1337 Dixwell Avenue

Hamden, CT  06514

 

 

 

 

___________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

FIC/2010-493FD/cac/6/1/2011