FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on December 16, 1996 and March 25, 1997, at which times the complainant and respondent appeared, stipulated to certain facts, and presented testimony, exhibits and argument on the complaint. The Department of Administrative Services’ ("DAS") motion for party or intervenor status was denied. However, DAS’s Director of Personnel Assessment was permitted to present testimony.

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 the complainant was one of approximately 160 candidates who sat for the Connecticut State Police Sergeants Examination, administered by DAS in January, 1996 (hereinafter "examination" or "the examination").

3. It is found that following allegations of possible cheating on the examination, the respondent conducted a non-criminal administrative internal affairs investigation into the conduct of the complainant and other candidates (hereinafter "internal affairs investigation #96-009"). In this regard, the respondent requested that DAS turn over to the respondent the examination records, and DAS complied.

4. It is found that the allegations described in paragraph 3 of the findings, above, were not sustained as against the complainant, and the respondent so informed the complainant by memorandum dated July 10, 1996.

Docket #FIC 1996-253 Page 2

5. It is found that by letter dated July 15, 1996, the complainant requested that the respondent provide him with a certified copy of the records of internal affairs investigation #96-009 (hereinafter "requested records").

6. It is found that by letter dated July 22, 1996, the respondent informed the complainant that his request was being reviewed and that he would be notified as soon as possible of the results of such review.

7. Having failed to receive the requested records, the complainant, by letter dated and filed with the Commission on July 31, 1996, alleged that the respondent violated the Freedom of Information ("FOI") Act by denying him a copy of the requested records.

8. It is found that the requested records are maintained by the respondent and consist of the examinations records, described in paragraphs 2 and 3 of the findings above, and records compiled by the respondent during the investigation.

9. At the December 16, 1996 hearing on this matter, the respondent provided the complainant with some of the requested records, which the complainant has had an opportunity to review. However, such records provided, contained redactions of the respondent’s investigatory techniques, as well as medical information, social security numbers, home telephone numbers and residential addresses of examination candidates.

10. It is found that the respondent has also not provided the complainant with the examination questions, model answers, scoring keys and the written comments of examination raters about candidates, contained on oral answer keys (hereinafter "written comments").

11. It is found that the complainant is not interested in obtaining the information redacted by the respondent and described in paragraph 9 of the findings, above. Neither is he interested in the examination questions, model answers and scoring keys described in paragraph 10 of the findings, above. Therefore, the respondent’s claims of exemption pursuant to § § 1-19(b)(2), 1-19(b)(3) and 1-19(b)(6), G.S., need not be addressed with respect to the records, described herein, which are not at issue.

12. It is found that the records that are at issue in this appeal, are the written comments, described in paragraph 10 of the findings, above.

13. Section 1-19(a), G.S., in relevant part, provides that:

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any

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law or by any rule or regulation, 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.

14. Section 1-19(b)(6), G.S., permits the nondisclosure of "[t]est questions, scoring keys and other examination data used to administer a[n]…examination for employment…."

15. It is found that the written comments constitute examination data used to administer an examination for employment, within the meaning of § 1-19(b)(6), G.S.

16. It is therefore, concluded that the written comments are permissively exempt from disclosure pursuant to § 1-19(b)(6), G.S., and therefore, the respondent did not violate § § 1-15(a) and 1-19(a), G.S., when it failed to provide the complainant with the written comments.

17. It is also concluded that the respondent’s December 16, 1996 provision of access to some of the requested records, as described in paragraph 9 of the findings, above, was not prompt within the meaning of § § 1-15(a) and 1-19(a), G.S.

18. It is therefore, concluded that the respondent violated § § 1-15(a) and 1-19(a), G.S., when it failed to promptly provide the complainant with a copy of the records eventually provided to the complainant on December 16, 1996, and described in paragraph 9 of the findings, above.

19. With respect to the respondent’s further claim that the written comments are exempt from disclosure pursuant to § 5-225, G.S., it is concluded that in light of the conclusion reached in paragraph 16 of the findings, above, it is not necessary for the Commission to address such claim of exemption.

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

1. With respect to the records provided to the complainant on December 16, 1996, and described more fully in paragraphs 9, 17 and 18 of the findings, above, henceforth, the respondent shall strictly comply with the promptness requirement set forth in § § 1-15(a) and 1-19(a), G.S.

2. With respect to the written comments, described more fully in paragraphs 12, 15 and 16 of the findings, above, the complaint is dismissed.

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Approved by Order of the Freedom of Information Commission at its regular meeting of July 23, 1997.

__________________________
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:
Brian T. Picard
c/o Robert J. Krzys, Esq.
1010 Wethersfield Avenue
Hartford, CT 06114

Internal Affairs Division, State of Connecticut, Department of Public Safety, Division of State Police
c/o Henri Alexandre, Esq.
Assistant Attorney General
110 Sherman Street
Hartford, CT 06105

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC 1996-253/FD/eal/07291997