FREEDOM
OF INFORMATION COMMISSION
OF
THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL
DECISION
Michael Soriero,
Complainant
against Docket
#FIC 1997-095
Superintendent of Schools,
Sterling Public Schools,
Respondent January 28, 1998
The
above-captioned matter was heard as a contested case on October 30, 1997, at
which time the complainant 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(1),
G.S. (prior to October 1, 1997, §1-18a(a),
G.S.).
2. By letter dated February 12, 1997, the
complainant requested that the respondent provide him with copies of the
following records regarding a hearing involving the complainant’s daughter:
a) all witness statements;
b)
a
list of witnesses which the respondent planned to call at the hearing and a
summary of expected testimony;
c)
documentation
related to sexual harassment complaints against other students and to incidents
involving inappropriate remarks or gestures of students, with students’ names
redacted;
d)
whether
the respondent planned on having a court reporter present at the planned
hearing;
e)
all
invoices from attorneys for the Sterling Board of Education from January 1,
1987 to February 12, 1997.
3. By letter dated February 27, 1997 and filed
on March 3, 1997, the complainant appealed to the Commission alleging that the
respondent violated the Freedom of Information (“FOI”) Act by denying him
copies of the requested records.
4. Section 1-19(a), G.S., in relevant part
states:
[e]xcept 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 or to receive a copy of such records
in accordance with the provisions of section 1-15….
5. It is found that the requested records are
public records within the meaning of §§1-18a(5)
(prior to October 1, 1997, §1-18a(d))
and 1-19(a), G.S.
6.
It
is found that the respondent superintendent at the time of the complainant’s
request did not provide the complainant with the requested records. It is further found that the current
superintendent was appointed to such office on August 28, 1997.
7.
It
is found that the notice of the rescheduled hearing in this matter was sent by
certified mail to the parties on October 10, 1997. It is further found that the current superintendent’s receipt of
such notice was his first notification of the instant complaint and underlying
request, and that the current superintendent exerted due diligence in
investigating his office’s response in this matter.
8. With respect to the requests set forth in
subparagraphs (b) and (d) of paragraph 2, above, the respondent contends that
there are no records responsive to such requests. It is therefore concluded that the respondent did not violate the
provisions of §1-19(a),
G.S. by failing to provide such records.
9. With respect to the request in subparagraph
(a) of paragraph 2, above, the respondent has identified three witness
statements which he is prepared to release to the complainant. The respondent contends that such statements
had been sent to the complainant’s former attorney on January 30, 1997, prior
to the request which is the subject of this contested case. It is found, however, that the complainant
did not receive such statements and that the respondent was obliged under the
FOI Act to respond to the complainant’s subsequent February 12, 1997 request. Accordingly, it is concluded that the
respondent violated the provisions of §1-19(a),
G.S., by failing to provide such statements in response to complainant’s
February 12, 1997, request.
10. With respect to the request in subparagraph
(c) of paragraph 2, above, the respondent has identified three responsive sets
of documents, which he contends are exempt from disclosure by virtue of §1-19(b)(10),
G.S., and the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. §1232g.
11. Section 1-19(b)(10), G.S., provides that an
agency need not disclose “records, tax returns, reports and statements exempted
by federal law or state statutes….”
12. It is found that at all times material to
this complaint FERPA sets a condition precedent to the granting of funds but
does not mandate that records be withheld from disclosure. Accordingly, §1-19(b)(10),
G.S., and FERPA do not preclude disclosure of the three sets of documents
responsive to the request more fully described in subparagraph (c) of paragraph
2, above.
13. Section 1-19(b)(11), G.S. , in relevant
part, provides that:
[n]othing in the [FOI]
Act…shall be construed to require disclosure of [the] names or addresses of
students enrolled in any public school or college without the consent of each
student whose name or address is to be disclosed who is eighteen years of age
or older and a parent or guardian of each such student who is younger than
eighteen years of age…
14. It is found that the complainant consents
to the redaction of student identities.
15. The respondent contends that, because
Sterling is a very small school district, consisting of approximately 300
students, mere redaction of the names of the students would not ensure that
their identities would be protected.
16. It is concluded that §1-19(b)(11),
G.S., provides a basis to exempt from disclosure the student names, and other
details which would identify students, from the records more specifically
described in paragraph 10, above.
17. It is further found, however, that the
remainder of the records more fully described in paragraph 10, above, are not
exempt from disclosure by virtue of §1-19(b)(11),
G.S. Therefore, it is concluded that
the respondent violated the provisions of §1-19(a),
G.S., by failing to provide the complainant with copies of such non-exempt
records.
18. With respect to the request in subparagraph
(e) of paragraph 2, above, the respondent contends that portions of such
records are exempt from disclosure by virtue of the attorney-client privilege.
19. Section that §1-19(b)(10),
G.S., in relevant part, permits the nondisclosure of “…communications
privileged by the attorney-client relationship.”
20. The exemption for attorney-client
privileged communications contained in §1-19(b)(10),
G.S., is limited to the following circumstances in accordance with established
Connecticut law:
Where legal advice of any
kind is sought from a professional legal adviser in his capacity as such, the
communications relating to that purpose, made in confidence by the client, are
at his instance permanently protected from disclosure by himself or by the
legal adviser, except the protection may be waived.
Lafaive v. DiLoreto,
2 Conn. App. 58, 65 cert. denied, 194 Conn. 801 (1984).
21. The attorney-client privilege protects
communications between client and attorney, when made in confidence for the
purpose of seeking or giving legal advice.
Ullmann v. State, 230 Conn. 698, 711 (1994). It is strictly construed because it “tends
to prevent a full disclosure of the truth….” Id. at 710.
22.
It is
found that the respondent did not prove that the requested invoices, or
portions thereof, consisted of attorney-client privileged communications. New Haven v. Freedom of Information
Commission, 205 Conn. 767, 778 (1988).
Therefore, it is concluded that the respondent violated the provisions
of §1-19(a),
G.S., by failing to provide the complainant with copies of such non-exempt
records.
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
complainant with copies of the requested records, more fully described in
subparagraphs (a), (c), and (e) of paragraph 2 of the findings, above.
2. In complying with paragraph 1 of this order,
the respondent may redact those portions of the requested records more fully
described in paragraph 16 of the findings, above, and portions of the requested
attorney invoices which would reveal client confidences, as described in
paragraphs 19 through 21 of the findings, above.
3. Henceforth, the respondent shall strictly
comply with the provisions of §1-19(a),
G.S.
Approved
by Order of the Freedom of Information Commission at its regular meeting of
January 28, 1998.
_________________________
Doris V. Luetjen
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:
Michael Soriero
242 Harris Road
Sterling, CT 06377
Superintendent of Schools, Sterling Public
Schools
c/o Michelle C. Laubin
75 Broad Street
Milford, CT 06460
Gregory B. Ladewski
75 Broad Street
Milford, CT 06460
__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-095/FD/tcg/01281998