FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        FINAL DECISION

 

Dick Conrad and the New Haven Register,

 

                                Complainants

 

                against                   Docket #FIC 94-154

 

Chairman, Hamden Board of Education,

 

                                Respondent                          February 22, 1995

 

                The above-captioned matter was heard as a contested case on November 15, 1994, at which time the complainants and the respondent 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 is a public agency within the meaning of 1-18a(a), G.S.

 

                2.  By letter dated April 22, 1994, the complainants requested access for inspection and copying of certain records pertaining to the then Hamden Superintendent of Schools David W. Shaw.  Specifically, the complainants sought access to:

 

                a.  "All employment contracts with the town of Hamden";

 

                b.  "All performance evaluations";

 

                c.  "All records of disciplinary action against Shaw, including records of possible disciplinary action";

 

                d.  "Any records of sick leave or leaves of absence taken by Shaw";

 

                e.  "All records of work attendance, including time cards and time sheets; and

 

                f.  "Any records concerning arrests of Shaw.  Any  reports of alcohol abuse, driving while intoxicated or alcohol-related incidents."

 

Docket #FIC 94-154                                             Page 2

 

                3.  The complainants further stated in their April 22, 1994 letter that their request applied to records within Shaw's personnel file, "records of board of education meetings and any other records maintained by any office or board or commission of the town of Hamden."

 

                4.  By letter dated May 12, 1994, the complainants appealed to the Commission alleging that the respondent had not responded to their April 22, 1994 request.

 

                5.  It is found that in April 1994 then superintendent Shaw disappeared for a period of time following a well-publicized  incident that resulted in Mr. Shaw's arrest.  Subsequently, after Shaw's return, the Hamden board of education met on several occasions and after several months reached an agreement in settlement of the remainder of Shaw's contract as superintendent.

 

                6.  It is found that by letter dated May 4, 1994, the respondent notified Mr. Shaw through his counsel that he had received the complainants' request described in paragraph 2, above, and inquired whether Mr. Shaw objected to disclosure of the subject records.

 

                7.  It is further found that by letter to the respondent dated May 5, 1995, Mr. Shaw's counsel objected to disclosure of the subject records on behalf of Mr. Shaw on the bases that such records are exempt under 1-19, G.S., and that disclosure would be an invasion of Mr. Shaw's personal privacy rights.

 

                8.  It is further found that the respondent also notified Mr. Shaw's counsel of the date and time of hearing on this matter by letter dated November 8, 1994, which notification was acknowledged by Mr. Shaw's counsel in a letter to the respondent dated November 9, 1994.

 

                9.  It is further found however that neither Mr. Shaw nor his counsel appeared at the November 15, 1994 hearing on this matter.

 

                10.  The respondent submitted the records in his possession that were responsive to the complainants' request for in camera inspection on January 10, 1995.

 

                11.  It is found that the respondent submitted six documents or categories of documents for in camera inspection, identified by the Commission as in camera document #s 94-154-1 through 94-154-6, inclusive, and which may be characterized as follows::

 

                a.   attendance records covering the period January 1983 through June 1994 (in camera document #94-154-1);

 

Docket #FIC 94-154                                             Page 3

 

                b.  three letters concerning Mr. Shaw's leave of absence in June of 1990 (in camera document #94-154-2);

 

                c.  various teacher performance evaluations covering the years 1971 through 1979 (in camera document #94-154-3);

 

                d.  an administrator evaluation form (initial conference report) for the year 1983; (in camera document #94-154-4);

 

                e.  superintendent evaluations covering the years 1988 through 1993 (in camera document #94-154-5); and

 

                f.  an initial teacher's contract for the year 1970, annual agreements for the years 1975, 1977, 1978, 1979, 1982, 1983, 1984, 1985 and 1986, and a superintendent's agreement for the period from February 1987 through February 1990 (in camera document #94-154-6).

 

                12.  It is found that the records submitted by the respondent for in camera inspection are responsive to the complainants' request described in paragraph 2a., b., d. and e., above, and that the respondent has no records that are responsive to the complainants' request described in paragraphs 2c. and f., above.

 

                13.  It is found that the respondent did not provide the complainants or the Commission with a copy of Shaw's most recent contract with the town but that the complainants obtained a copy through other means and therefore no longer are seeking such contract.

 

                14.  It is concluded that the records submitted for in camera inspection are public records within the meaning of 1-18a(d), G.S.

 

                15.  The respondent maintains that the subject in camera records are exempt from public disclosure pursuant to 1-19(b)(2), G.S., and that he acted appropriately by notifying Mr. Shaw, affording him an opportunity to object to disclosure of the subject records; and, having received Mr. Shaw's objection, he was prohibited from disclosing the subject records pursuant to 1-20(c), G.S.

 

                16.  The respondent further maintains that in camera document #s 94-154-3 and 94-154-4 are exempt from disclosure pursuant to 10-151c, G.S.

 

Docket #FIC 94-154                                             Page 4

 

                17.  In material part, 1-19(a), G.S., provides:

 

                Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency . . . shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15.

                18.  In material part, 10-151c, G.S., provides:

 

                Any records maintained or kept on file by any local or regional board of education which are records of teacher performance and evaluation shall not be deemed to be public records and shall not be subject to the provisions of section 1-19 ... For the purposes of this section the term 'teacher' shall include each certified professional employee below the rank of superintendent...."

 

                19.  It is found that in camera document #s 94-154-3 and 94-154-4 are records of teacher performance and evaluation within the meaning of 10-151c, G.S., and it is concluded therefore that such records are exempt from the disclosure requirements of 1-19(a) and 1-15(a), G.S.

 

                20.  Section 1-19(b)(2), G.S., permits the nondisclosure of "personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy."

 

                21.  It is found that the remaining records submitted for in camera inspection, are personnel file records within the meaning of 1-19(b)(2), G.S.

 

                22.  It is found that the records comprising in camera document #94-154-2 are essentially notices to the chairman of the board of education and to staff from Mr. Shaw and from the chairman of the board of education to school staff apprising them of Mr. Shaw's leave of absence, and, although such notices make reference to Mr. Shaw's medical leave in June of 1990, they contain no other information detailing the medical reasons or circumstances surrounding his leave of absence.

 

                23.  It is further found that all of the records comprising in camera documents, 94-154-1, 94-154-2, 94-154-5 and 94-154-6, are largely favorable to Mr. Shaw and do not contain any information which if disclosed would be highly offensive to a reasonable person.

 

Docket #FIC 94-154                                             Page 5

 

                24.  It is further found that there is a legitimate public interest in:  knowing the contents of a public employee's attendance records and when a public employee is or is not performing his or her duties (in camera document #s 94-154-1 and 94-154-2); how well a superintendent of schools performs his or her official duties (in camera document #94-154-5); and the terms of a public teacher's or superintendent's contract (in camera document #94-154-6).

 

                25.  It is concluded therefore that the respondent failed to prove that disclosure of in camera document #s 94-154-1, 94-154-2, 94-154-5 and 94-154-6 would constitute an invasion of personal privacy within the meaning of 1-19(b)(2), G.S.

 

                26.  Consequently, it is concluded that the respondent violated the provisions of 1-15(a) and 1-19(a), G.S., by failing to provide the complainants with access to inspect or copy in camera record #s 94-154-1, 94-154-2, 94-154-5 and 94-154-6.

 

                27.  It is found that the respondent did not provide any records of board of education meetings pertaining to Shaw that were requested by the complainants, as referred to in paragraph 3, above, and that his failure to do so constitutes a violation of 1-15(a) and 1-19(a), G.S.

 

                28.  With respect to the complainants' request for any other records maintained by the town of Hamden pertaining to Shaw, as described in paragraph 3, above, it is found that the respondent is not the official having custody of such records.  Therefore, the respondent did not violate the provisions of the Freedom of Information Act by failing to provide such records to the complainants.

 

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

 

                1.  The respondent shall forthwith provide the complainants with copies of those records identified as in camera document #s 94-154-1, 94-154-2, 94-154-5 and 94-154-6, as more fully described in paragraph 11, of the findings, above, and with any records of board of education meetings pertaining to Shaw as described in paragraph 27, of the findings, above.

 

Docket #FIC 94-154                                             Page 6

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 22, 1995.

 

                                                                             

                                                Debra L. Rembowski

                                                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:

DICK CONRAD AND NEW HAVEN REGISTER

40 Sargent Drive

New Haven, CT 06511-5918

 

CHAIRMAN, HAMDEN BOARD OF EDUCATION

c/o Jeffrey C. Pingpank, Esq.

Conney, Scully and Dowling

10 Columbus Boulevard

Hartford, CT 06106-1944

 

                                                                             

                                                Debra L. Rembowski

                                                Clerk of the Commission