FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Final Decision

Michael Stumo,

Complainant

against Docket #FIC 95-250

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 95-236, 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 of request dated July 13, 1995, the complainant requested that the respondent provide him with access to any and all records relating to the examinations taken in 1994 and 1995 by Timothy Hogan for the purpose of evaluation for promotion, (hereinafter "requested records"). The complainant also requested that the Commission impose a civil penalty against the respondent, however, at the hearing on this matter the complainant withdrew such request.

3. It is found that the respondent denied the request by letter dated July 19, 1995 claiming the requested records are exempt from disclosure pursuant to 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 25, 1995 and filed with the Commission on July 27, 1995, appealed to the Commission alleging that the respondent denied him access to the requested records.

5. At the hearing on this matter, the complainant indicated that the records he is seeking are records of the examination, as described in paragraph 2, above, and specifically records of persons who conducted the examinations, the examination questions and procedures and records of meetings held concerning the examination.

6. It is found that two examinations for the position of

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captain were conducted, one consisting of an oral part given in 1994 and a written part given in 1995, and the other conducted in 1995, for which both the oral and written parts were given in 1995.

7. It is found that the respondent maintains records of the 1994 and 1995 captain's examinations, as described in paragraph 6, above, which records are responsive to the complainant's request, and which records include records of the examination questions, answers, results and scores and the announcements for the examinations.

8. It is found that the respondent is unaware of whether records of meetings concerning the examinations exist as the respondent reviewed only the examination folder.

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

10. At the hearing on his matter, the respondent contended that all the records it maintains are exempt from disclosure pursuant to 1-19b(b) and 1-19(b)(6), G.S.

11. 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.

12. It is found that the examination questions and answers as described in paragraph 7, above, 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.

13. It is found that the results, scores and the announcements of the examination, 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.

14. It is found that in light of finding 8, above, records of meetings may exist but maintained in a location other than in the examination folder, reviewed by the respondent.

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 and others, including Hogan.

16. It is found that in the litigation, described in paragraph 14, above, the complainant filed discovery requests

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for records concerning the examination.

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.

19. It is found that the respondent has failed to prove that disclosure of the results, scores and the announcements of the examination, as described in paragraph 13, above, 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 examination questions and answers, as described in paragraph 12, however, it violated 1-19(a), G.S., when it failed to provide the complainant with access to a copy of the results, scores and the announcements of the examination, as described in paragraph 13, above.

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 results, scores and the announcements of the examination, as more fully described in paragraph 13 of the findings, above. The respondent shall also provide the complainant with any records it maintains of persons conducting the examination, and records of meetings held concerning the examination.

2. In complying with paragraph 1 of the order, the respondent shall conduct a diligent search of its records to ascertain whether records of meetings exist. If 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 records. If 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. In addition, 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.

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3. The complaint is dismissed with respect to the request for test questions and answers.

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

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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