FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

 

In the Matter of a Complaint by                          Final Decision

 

Jesse C. Leavenworth and

The Hartford Courant,

 

                    Complainant(s)

 

          against                                                      Docket #FIC 1995-403

 

Superintendent of Schools,

Regional School District #7,

 

                    Respondent                                    September 25, 1996

 

          The above-captioned matter was heard as a contested case on April 23, 1996, at which time the complainants and the respondent appeared, 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.       It is found that by letter dated October 6, 1995 (“October request”), and received by the respondent on or about October 9, 1995, the complainants requested that they be provided with “access to the personnel file of teacher Joyce Sperow, … specifically, … records of any disciplinary actions, including suspensions and reprimands…. [and] copies of complaints against Sperow filed by parents or Region 7 staff,” (“Sperow records”).

 

          3.       It is found that on October 10th and 30th, the complainant Leavenworth telephoned the respondent to check on the status of the October request concerning the Sperow records.

 

          4.       It is found that by memorandum to Sperow dated October 11, 1995, the respondent notified her of the complainants’ October request.

 

          5.       It is found that by written reply to the respondent dated October 19, 1995, Sperow filed an objection to the disclosure of her personnel file.

 

 

 

          6.       It is found that by letter dated November 17, 1995 (“denial”), the respondent informed the complainants that the Sperow records would not be disclosed because Sperow had filed an objection pursuant to §1-20(a)(c), G.S.  A copy of Sperow’s objection was enclosed with the respondent’s denial.

 

          7.       By letter of complaint dated November 20, 1995, and filed with this Commission on November 24, 1995, the complainants appealed the respondent's denial of their October request.

 

          8.       It is found that the Sperow records are public records within the meaning of §§1-18a(d) and 1-19(a), G.S.

 

          9.       It is found that the subject of the requested records , Joyce Sperow, is a tenured teacher employed by Regional School District #7 (“district”), for approximately twenty-two years, and at the time of the October request she taught in the Family and Consumer Sciences Department at Northwestern Regional School.

 

          10.     Sperow did not attend the Commission’s hearing on this case (“hearing”).

 

          11.     At the hearing the complainants clarified their October request to only include those Sperow records relating to Sperow’s performance as a teacher, to wit, teacher evaluations, reprimands and disciplinary information, as well as records reflecting actions taken, or complaints made against Sperow for her conduct in the classroom.

 

          12.     The complainants are not seeking access to any health or medical information concerning Sperow.

 

          13.     At the hearing the respondent argued that the Sperow records constitute Sperow’s personnel records and are therefore exempt from disclosure under §1-19(b)(2), G.S.

 

          14.     At the hearing the respondent also argued that the Sperow records constitute records of teacher performance and are therefore exempt from disclosure under §10-151(c), G.S.

 

          15.     The respondent further claimed that disclosure of the Sperow records would hamper a teacher’s professional development because negative incidents rather than a teacher’s overall professional conduct, goals and objectives would become the focus of public attention.

 

 

 

          16.     The respondent submitted the Sperow records to the Commission for in camera inspection pursuant to §1-21j-35(f) of the Commission's regulations.  The Sperow records submitted by the respondent have been designated as in camera (“IC”) documents as follows: IC95-403-1 through IC95-403-16.

 

          17.     The index to the records submitted for in camera inspection by the respondent cite §§1-19(b)(2) and 10-151c, G.S., as the  statutory bases for withholding disclosure of the requested records.

 

          18.         At the hearing the respondent provided the complainants with a copy of a September 25, 1995 and October 2, 1995 letter from the respondent to Sperow wherein the possibility of her termination was discussed.

 

          19.     The records referred to in paragraph 18 of the findings, above, were originally submitted to the Commission as IC95-403-15 and IC95-403-16, respectively.

 

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

 

          21.     Perkins v. FOIC, 228 Conn. 158 (1993), sets forth the standard for the exemption contained in §1-19(b)(2), G.S.  The claimant has a twofold burden of proof:

          First, [he] must establish that the files in question are within the     categories of files protected by the exemption, that is, personnel,

          medical or similar files.  Second, [he] must show that disclosure of

          the records would constitute an invasion of personal privacy. 
          (Emphasis added.)

 

          22.     It is found that either the subject records have been made part of Sperow’s personnel file; or are the functional equivalent of personnel file information in that the records were generated as a result of her position as a tenured public school teacher with the district, and subsequently relied on to evaluate or discipline her in that capacity.

 

          23.     It is concluded that the Sperow records are “personnel” or “similar” files within the meaning of §1-19(b)(2), G.S.

 

           24.     The Court in Perkins further instructs :

           [The] invasion of personal privacy exception of §1-19(b)(2)

           precludes disclosure, therefore, only when the information

           sought by a request does not pertain to legitimate matters of

           public concern and is highly offensive to a reasonable person.

           (Emphasis added.)

 

           25.    It is found that the respondent failed to prove that the disclosure of the Sperow records at issue in this case would be highly offensive to a reasonable person.

 

           26.    It is found, however, that even if disclosure of the subject records would be offensive to a reasonable person, documentation of a tenured public school teacher’s professional ineptitude or abuse of professional and collegial relationships, the actions or activity constituting such ineptness or abuse, and the discipline, if any, meted out, pertain to legitimate matters of public concern.

 

          27.     It is therefore concluded that disclosure of the Sperow records would not constitute an invasion of Sperow’s personal privacy within the meaning of §1-19(b)(2), G.S.

 

          28.     Section 10-151c, G.S., provides, in relevant part, that:

                    [a]ny 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 public records and shall not be subject
                    to the provisions of §1-19, provided that any teacher may consent in
                    writing to the release of his records by a board of education.
                    (Emphasis added.)

 

          29.     After conducting an in camera inspection of the Sperow records at issue, it is found that IC95-403-1 through IC95-403-4, and IC95-403-10 through IC95-403-11 are records of teacher performance and evaluation within the meaning of §10-151c, G.S.

 

          30.     It is concluded, therefore, that IC95-403-1 through IC95-403-4, and IC95-403-10 through IC95-403-11 are records of teacher performance and evaluation exempt from public disclosure under §1-19(a), G.S., by operation of §10-151c, G.S.

 

          31.     However, it is also concluded that the following Sperow records are not records of teacher performance and evaluation, but rather nonexempt public records subject to the disclosure provisions of §§1-15 and 1-19(a), G.S., as follows:

 

          (a)  IC95-403-5: September 3, 1993 letter of reprimand, disclose
          all;

          (b)  IC95-403-6: January 18, 1993 memorandum concerning
          Sperow’s communication and interaction with unidentified
          parents, disclose all;

          (c)  IC95-403-7: January 30, 1995 parental letter of
          complaint, disclose after redacting the names and all identifying
          references to the parent and the student;

          (d)  IC95-403-8: April 4, 1995 memorandum, disclose
          all;

          (e)  IC95-403-9: June 9, 1995 memorandum, disclose after
          redacting the names and references to persons other than Sperow;

          (f)  IC95-403-12: August 25, 1995 letter regarding
          disciplinary action taken against Sperow, disclose all;

          (g)  IC95-403-13: August 30, 1995 memorandum regarding
          the docking of Sperow’s paycheck, disclose all; and

          (h)  IC95-403-14: September 18, 1995 letter regarding Sperow’s
          unauthorized absence from work, disclose all.

 

          32.         It is concluded further that the respondent's failure to provide the complainants with copies of the nonexempt Sperow records violated the provisions of §§1-15 and 1-19(a), G.S.

 

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

 

          1.           Within seven (7) days of the date of mailing of the notice of final decision in this case, the respondent shall provide the complainants with a copy of the requested Sperow records as more fully identified in paragraph 31(a) through (h) of the findings, above, free of charge, and furnish to the complainants an affidavit stating that the records provided constitute true and accurate copies of the in camera documents submitted to the Commission.

 

          2.           In complying with paragraph 1 of the order, above, the respondent may redact the names and identifying information of persons other than Sperow appearing in the documents to be disclosed to the complainants.

 

          3.           Henceforth, the respondent shall strictly comply with the public records requirements set forth in §§1-15 and 1-19(a), G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 25, 1996.

 

 

 

__________________________

Elizabeth A. Leifert

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:

 

Jesse C. Leavenworth

The Hartford Courant

32 City Hall Avenue

Torrington, CT 06790

 

 

Superintendent of Schools, Regional School District #7

c/o  Robert Murphy, Esq.

Sullivan, Schoen, Campane & Cannon, LLC

646 Prospect Avenue

Hartford, CT 06105-4386

 

 

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission