FIC1998-229

FREEDOM OF INFORMATION COMMISSION OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by			FINAL DECISION
Juan Arriola,
		Complainants
	against		Docket #FIC 1998-229
Patrick Proctor, Superintendent of Schools, Windham Public Schools; Dan Switchenko, John Adamo, Manuel Diaz, Mark Doyle, Susan Collins, Paulette Haines, Paula Haney, Lynne Weeks, and Ben Vreeland as members of the Board of Education, Windham Public Schools; and Board of Education, Windham Public Schools,
		Respondents	June 9, 1999

The above-captioned matter was heard as a contested case on September 22, 1998 and December 1, 1998, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. For purposes of hearing, this case was consolidated with the following dockets #s: FIC1998-215, Juan Arriola v. Windham Board of Education, Windham Public Schools; FIC1998-219, Juan Arriola v. Patrick Proctor, Superintendent of Schools, Windham Public Schools; Dan Switchenko, John Adamo, Manual Diaz, Mark Doyle, Susan Collins, Paulette Haines, Paula Haney, Lynne Weeks, and Ben Vreeland as members of the Board of Education, Windham Public Schools; and Board of Education, Windham Public Schools; FIC1998-300, Juan Arriola v. Susan M. Collins, Chairman, Board of Education, Windham Public Schools; Dan Switchenko, John Adamo, Manuel Diaz, Jr., Mark Doyle, Paulette N. Haines, Paula Haney, Lynne P. Weeks, Benjamin S. Vreeland, as members of the Board of Education, Windham Public Schools; and Board of Education, Windham Public Schools.

After consideration of the entire record, the following facts are found and conclusions of law are reached:

1. The respondents are public agencies within the meaning of §1-200(1), G.S. [formerly §1-18a(1), G.S.].

2. By letter dated June 10, 1998, the complainant submitted a request to the respondent board for access to inspect all materials, correspondence, letters, memos, documents, notes and similar files pertaining to interviews conducted during the investigation of Juan Arriola and used in the decision not to renew the contract of Juan Arriola, including, but not limited to all materials, correspondences, letters, memos, documents, notes and similar files pertaining to the interviews of the following Town of Windham Board of Education personnel: Kristi Dudek, Mario Montes, Betsy Arvelo, Martha Sebilian, Carol Records, Kathy Pawloff, Igor Espitia, Ruth Yulo, Bill Skoog, and Donna Draxler.

3. By letter dated June 18, 1998, and filed on June 23, 1998, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to respond to and comply with his request. The complainant requested that the Commission impose the maximum civil penalty against the respondents.

4. Section 1-210(a), G.S. [formerly §1-19(a), G.S.], provides in relevant part that:

[e]xcept 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 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 . . . .

5. It is found that to the extent records exist that are responsive to the complainant’s request, such records are public records within the meaning of §1-210(a), G.S. [formerly §1-19(a), G.S.].

6. It is found that the parties to this matter are involved in a protracted and highly contentious employment dispute, during which the respondent board decided not to renew the complainant’s teaching contract and the superintendent of the Windham Public Schools has received much correspondence from the complainant which he considered to insulting and/or threatening and is also the target of a campaign, allegedly led by the complainant, to remove him from office.

7. It is found that on May 18, 1998, the complainant, pursuant to a previous records request, met with the respondents’ counsel at his office and inspected all files pertaining to his employment with the Windham Public Schools including those pertaining to a sexual harassment complaint filed against him and the investigation of such complaint.

8. It is further found that the meeting described in paragraph 7, above, lasted for more than an hour and that during the meeting, the complainant requested and received copies of forty-five pages of records, free of charge.

9. It is further found that the respondents did not reply to the complainant’s June 12, 1998 request because they believed that they had already provided the complainant with access to or copies of all of the records maintained by them concerning the complainant during the course of the meeting described in paragraph 7, above.

10. It is further found that the respondents do not maintain any other records responsive to the complainant’s June 10, 1998 request.

11. It is therefore concluded that the respondents did not violate the provisions of §1-210(a), G.S., [formerly §1-19(a), G.S.], under the facts and circumstances of this case. Therefore, the imposition of a civil penalty against the respondents is not appropriate in this case.

12. At the hearing in this matter, the respondents requested that this Commission impose a civil penalty against the complainant on the grounds that the complainant has taken this appeal frivolously, without reasonable grounds and solely for the purpose of harassing the respondents.

13. Section 1-206(b)(2), G.S. [formerly §1-21i(b)(2), G.S.], provides in relevant part that:

[i]f the commission finds that a person has taken an appeal . . . frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken, after such person has been given an opportunity to be heard at a hearing . . . the commission may, in its discretion, impose against that person a civil penalty of not less than twenty dollars nor more than one thousand dollars . . . .

14. It is found that despite the highly contentious relationship between the parties, as described in paragraph 6, above, the respondents have gone to great lengths to comply with numerous records requests made by the complainant, including repeated requests for records that had already been provided to him.

15. Further, the Commission takes administrative notice of docket #FIC1997-286 Juan Arriola v. Patrick Proctor, Superintendent of Schools, Windham Public Schools; Susan M. Collins, Chairman, Board of Education, Town of Windham; Dolores Ackley; Mark W. Doyle; Paulette N. Haines; Paula M. Haney; Manuel A. Diaz, Jr.; Leslie A. Johnson-O’Brien; Benjamin S. Vreeland; and Lynne P. Weeks, as members, Board of Education, Town of Windham; and Board of Education, Town of Windham, wherein the Commission dismissed the complaint based upon findings that the respondents had complied with all of the complainant’s prior records requests and that the records requested in #FIC1997-286 had always been available for the complainant’s inspection during regular business hours.

16. It is found that the complainant’s June 10, 1998 records request in this case falls within the ambit of the complainant’s records request in docket #FIC 1997-286.

17. It is further found that nothing in the record of this case would support a reasonable belief on the complainant’s behalf that he had not inspected all non-exempt records related to his employment with the Windham Public Schools or the sexual harassment complaint filed against him and the investigation of such complaint.

18. It is therefore found that the appeal in this matter was taken without reasonable grounds.

19. However, the Commission cannot find that the complainant’s appeal was taken frivolously and solely for the purpose of harassing the respondents within the meaning space of §1-206(b)(2), G.S., [formerly§1-21i(b)(2), G.S.], given the seriousness of the employment dispute described in paragraph 6, above, and that the complainant’s records requests and subsequent appeals have all been made in connection with that dispute.

20. Therefore, based upon the finding in paragraph 19, above, the imposition of a civil penalty against the complainant is not appropriate in this case.

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

1. The complaint is hereby dismissed.

2. The Commission notes the complainant’s representation at the hearing on this matter that he would not file any other FOI complaints against the above-captioned respondents pertaining to records generated in connection with the sexual harassment complaint filed against him or the investigation which followed.

Approved by Order of the Freedom of Information Commission at its regular meeting of

June 9, 1999.

_________________________

Melanie R. Balfour

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:

Juan Arriola

PO Box 218

Windham, CT 06280

Patrick Proctor,

Superintendent of Schools,

Windham Public Schools;

Dan Switchenko, John Adamo,

Manuel Diaz, Mark Doyle,

Susan Collins, Paulette Haines,

Paula Haney, Lynne Weeks, and

Ben Vreeland as members

of the Board of Education,

Windham Public Schools; and

Board of Education,

Windham Public Schools

c/o Atty. Thomas B. Mooney

and Atty. Kimberly A. Mango

Shipman & Goodwin, LLP

One American Row

Hartford, CT 06103-2819

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

FIC1998-229FD/mrb/06111999