FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        Final Decision

 

Michael C. Stumo,

 

                                Complainant

 

                against                   Docket #FIC 95-236

 

Hartford Personnel Department,

 

                                Respondent                          May 22, 1996

 

                The above-captioned matter was heard as a contested case on January 18 and February 27, 1996, at which times the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  Docket #FIC 95-250, Michael C. Stumo v. Hartford Personnel Department, was consolidated with the above-captioned matter for purpose of hearing.

 

                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.  It is found that by letter dated June 28, 1995, the complainant requested that the respondent provide him with access to copies of all records pertaining to the 1994 lieutenants examination (hereinafter "the examination") conducted by the Hartford Police Department (hereinafter "the department"), including, but not limited to the following:

 

                                a.             instructional material and criteria used by the grading panel to evaluate the candidates;

 

                                b.             names, addresses and titles of all persons involved with conducting the examination;

 

                                c.             written and oral questions presented to each candidate;

 

                                d.             notes and comments pertaining to the examination made by each person involved with conducting the examination; and

 

                                e.             records relating to any meeting held regarding the examination.

 

Docket #FIC 95-236                                             Page 2

 

                3.  It is found that the respondent, by letter dated July 13, 1995, denied the request claiming that the requested records are exempt from disclosure pursuant to 1-19(b)(4), 1-19(b)(6) and 1-19b(b), G.S.

 

                4.  Having failed to receive access to the requested records, the complainant, by letter of complaint dated July 14, 1995 and filed with the Commission on July 18, 1995, appealed to the Commission, alleging that the respondent violated the  Freedom of Information ("FOI") Act by denying him access to the requested records.  The complainant, in his letter of complaint, requested that the Commission impose a civil penalty upon the respondent.  However, at the hearing on this matter, the complainant withdrew the request for a civil penalty.

 

                5.  It is found that the respondent maintains records which contain information responsive to the complainant's request, as described in paragraph 2a., 2b., 2c. and 2d., above.

 

                6.  It is found that the records and information maintained by the respondent, and described in paragraph 5, above, are contained in an examination file folder and consist of the following:

 

                                a.             the correct answers and standards for the oral examination;

 

                                b.             the names, addresses and titles of persons who conducted the examination contained on various records, including the name of the personnel analyst;

 

                                c.             the written and oral examination;

 

                                d.             records from which questions and answers were drawn;

 

                                e.             post-examination questions, concerns and comments of candidates brought to the attention of the personnel analyst.

 

               

                7.  It is also found that notes of examination graders may also exist, however, the respondent could not recall specifically.

 

                8.  It is found that the records, as described in paragraphs 6 and 7, above, are public records within the meaning of 1-18a(d) and 1-19(a), G.S.

 

Docket #FIC 95-236                                             Page 3

 

                9.  At the hearing on this matter, the respondent contended that all the records described in paragraph 6, above, are exempt from disclosure pursuant to 1-19(b)(6) and 1-19b(b), G.S.

 

                10.  Section 1-19(b)(6), G.S., permits the nondisclosure of:

 

                                                test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment, or academic examinations.

 

                11.  It is found that the records, as described in paragraph 6a., 6c. and 6d., constitute test questions, scoring keys and other examination data used to administer an examination for employment within the meaning of 1-19(b)(6), G.S., and are therefore exempt from disclosure.

 

                12.  It is found that the records, as described in paragraph 6b. and 6e., and paragraph 7, to the extent that notes exist, do not constitute test questions, scoring keys and other examination data used to administer an examination for employment within the meaning of 1-19(b)(6), G.S., and are therefore not exempt from disclosure.

 

                13.  With respect to the records of meetings requested and as described in paragraph 2e., above, it is found that the respondent's testimony was not responsive to the complainant's request, but was limited to records contained in the file folder, as described in paragraph 6, above.

 

                14.  It is therefore found that records of meetings may exist but maintained in a location other than in the file folder, as described in paragraph 6, above.

 

                15.  It is found that the complainant's lawfirm represents Edwin Garcia, who currently has a pending court case in federal court against the Hartford Police Department.

 

                16.  It is found that in the litigation, as described in paragraph 15, above, the complainant filed discovery requests for records of a similar nature to the ones at issue in this appeal.

 

                17.  It is found that the department objected to the discovery requests, referred to in paragraph 15, above.

 

                18.  Section 1-19b(b)(1), G.S., provides that;

 

                                Nothing in the [FOI Act] shall be deemed in any manner to ... limit the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state.

 

Docket #FIC 95-236                                                   Page 4

 

                19.  It is found that the respondent has failed to prove that disclosure of the records, as described in paragraph 6b. and 6e., and paragraph 7, to the extent that notes exist, would limit the rights of litigants within the meaning of 1-19b(b)(1), G.S.

 

                20.  It is therefore concluded that the respondent did not violate 1-19(a), G.S., when it failed to provide the complainant with access to a copy of the records, as described in paragraph 6a., 6c. and 6d., above, however, it violated 1-19(a), G.S., when it failed to provide the complainant with access to a copy of the records, as described in paragraph 6b. and 6e and paragraph 7, above, to the extent that notes exist.

 

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

 

                1.  The respondent shall within seven business days of the receipt of the notice of the final decision in this matter, provide the complainant with a copy of the records more fully described in paragraph 6b. and 6e and paragraph 7 of the findings, above, to the extent that notes exist.

 

                2.  In complying with paragraph 1 of the order, the respondent may redact only the following information contained in any record ordered disclosed:  examination questions and answers, and criteria or standard for testing and grading.

 

                3.  With respect to the request for notes, comments and records of meetings, as described in paragraph 2d. and 2e. of the findings, above, the respondent shall within seven business days of the receipt of the notice of the final decision in this matter conduct a diligent search of its records to ascertain whether any such notes, comments and records of meetings exist.  If such notes, comments and records of meetings exist, the respondent shall within seven business days of the receipt of the notice of the final decision in this matter provide the complainant with a copy of such notes, comments and records of meetings.  If such notes, comments and records of meetings do not exist, the respondent shall within seven business days of the receipt of the notice of the final decision in this matter provide the complainant with an affidavit attesting thereto, signed by the respondent's chief personnel officer and indicating, the name and title of the person(s) conducting such search, the scope of the records searched and the time spent on such search.

 

Docket #FIC 95-236                                                 Page 5

 

                4.  The complaint is dismissed with respect to the request for records as it pertains to the records maintained by the respondent and as more fully described in paragraph 6a., 6c. and 6d. of the findings, above.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 22, 1996.

 

                                                                                             

                                                                Elizabeth A. Leifert

                                                                Acting Clerk of the Commission

 

Docket #FIC 95-236                                             Page 6

 

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:

Michael C. Stumo, Esq.

Brignole and Terk, LLC

73 Wadsworth Street

Hartford, CT 06106

 

Hartford Personnel Department

c/o Karen K. Buffkin, Esq.

550 Main Street

Hartford, CT 06103

 

                                                                                             

                                                                Elizabeth A. Leifert

                                                                Acting Clerk of the Commission