FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
Saul Mekies,
Complainant(s)
against Docket #FIC 90-183
Michael E. Pernal, Chairperson of the State University Grievance Arbitration Committee and Executive Dean, Eastern Connecticut State University, and David C. Newton, Vice President for Personnnel, Connecticut State University,
Respondent(s) January 23, 1991
The above-captioned matter was heard as a contested case on September 10, 1990, 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 respondent executive dean, Eastern Connecticut State University (hereinafter "university"), and its vice president are public agencies within the meaning of 1-18a(a), G.S.
2. By letter of complaint dated May 14, 1990, and filed with the Commission on May 17, 1990, the complainant alleged that the respondent executive dean failed to respond to his May 5, 1990 written request for copies of:
(a) tapes of a March 14, 1990 hearing (hereinafter "hearing") conducted by the respondent committee regarding a grievance filed by the complainant under the Connecticut State University-American Association of University Professors (hereinafter "AAUP") contract; and
(b) all correspondence between the respondents regarding the grievance and the hearing.
Docket #FIC 90-183 Page 2
3. It is found that the respondent executive dean failed to comply with the complainant's May 5, 1990 written request for copies of information as set forth in paragraph 2 (a) and (b) of the findings, above.
4. It is found that by letter dated May 7, 1990, the respondent vice president informed the complainant that his May 5, 1990 document request had been forwarded to him.
5. It is also found that the respondent vice president failed to comply with the complainant's request for records.
6. It is found that by letter dated May 7, 1990, the respondent vice president informed the complainant that the record of the afternoon portion of the hearing was "lost due to mechanical or operator failure in use of the machine."
7. It is found that no tape recording exists for the afternoon portion of the hearing.
8. The respondents contend that pursuant to an agreement reached by the parties prior to the commencement of the hearing, the parties agreed to use the AAUP tape recorder to create an informal record of the hearing for the sole purpose of providing a temporary record that either party could request for use in preparing post-hearing briefs, or for use by the respondent committee in preparing its decision.
9. The respondents also contend that as part of the usual and customary grievance hearing procedure the faculty union of the AAUP is solely responsible for recording the proceedings, the AAUP provides and retains custody of any tape made, and the AAUP erases all tapes used if not requested by either the parties or the members of the respondent committee at the time of the hearing.
10. The respondents maintain that at the time of the grievance hearing the parties agreed not to file briefs and neither the parties nor any of the respondent committee members requested a copy of the tape recording prior to the conclusion of the grievance hearing.
11. It is found that a partial record of the hearing was prepared for use by the respondents and the parties to the hearing.
Docket #FIC 90-183 Page 3
12. It is found that during the course of the afternoon session of the hearing, the respondent executive dean had control of the tape.
13. It is found that the taped record of the hearing is information relating to the conduct of the public's business concerning the policies and practices of public institutions of higher education.
14. It is concluded that the tape recording is a public record within the definition of 1-18a(d), G.S.
15. It is further concluded that the agreement referenced in paragraphs 8 and 9 of the findings, above, does not govern this matter. In the absence of a state statute, promises made as part of an agreement do not supersede the Freedom of Information Act. Parties may not agree to abrogate the public's right of access to public documents.
16. It is concluded that the respondent executive dean, university and vice president violated 1-15, G.S., by failing to provide the complainant with a copy of the taped record of the hearing.
17. It is found that a correspondence in the form of a Fax document requesting advice regarding the complainant's document request was sent from the respondent executive dean to the respondent vice president on May 7, 1990.
18. It is found that the Fax document is a public record, as defined by 1-18a(d), G.S., and should have been provided to the complainant pursuant to his record request of May 5, 1990, as described in paragraph 2(b) of the findings, above.
19. It is concluded that by failing to promptly provide the complainant with a copy of the Fax and cover sheet, the respondents violated 1-15, G.S.
20. As a matter of discretion, the Commission declines to impose a civil penalty as requested by the complainant.
Docket #FIC 90-183 Page 4
The following order by the Commission is hereby recommended
on the basis of the record concerning the above-captioned complaint:
1. Henceforth the respondents shall strictly comply with the disclosure requirements of 1-15, G.S.
2. The respondents shall forthwith provide the complainant with either a copy of the tape recording requested in paragraph 2(a) of the findings, above, or a sworn affidavit that they have made a diligent search for the tape recording and a copy of the tape recording no longer exists, and the date of the erasure.
3. The Commission urges the respondents to review the existing policy regarding the taping of grievance proceedings. Specifically, the Commission suggests that the respondents would be wise to make and retain an official record of each grievance proceeding in accordance with Connecticut's records retention requirements, and permit each party to make an unofficial recording of the grievance hearing.
Approved by order of the Freedom of Information Commission at its special meeting of January 23, 1991.
Tina C. Frappier
Acting Clerk of the Commission
Docket #FIC 90-183 Page 5
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:
SAUL MEKIES
18 Olive Street
Danbury, CT 06810
and
c/o Richard Urkiel
85 Long Meadow Hill Road
Brookfield, CT 06804
MICHAEL E. PERNAL, CHAIRPERSON OF THE STATE OF UNIVERSITY GRIEVANCE ARBITRATION COMMITTEE AND EXECUTIVE DEAN, EASTERN CONNECTICUT STATE UNIVERSITY, AND DAVID C. NEWTON, VICE PRESIDENT FOR PERSONNEL, CONNECTICUT STATE UNIVERSITY
c/o Diane W. Whitney, Esq.
Assistant Attorney General
110 Sherman Street
Hartford, CT 06105
Tina C. Frappier
Acting Clerk of the Commission