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FREEDOM OF INFORMATION
COMMISSION |
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In
the Matter of a Complaint by |
FINAL
DECISION |
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Marian
J. Lewis, |
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Complainants |
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against |
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Docket
#FIC 1999-138 |
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Superintendent of Schools, |
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Respondents |
October
13, 1999 |
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The above-captioned matter was heard as a contested case on June 15, 1999, 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 Docket #FIC 1999-169; Ginger Spiers against Superintendent of Schools, Norwalk Public Schools; and Norwalk 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 January 8, 1999, the complainant requested that the respondent superintendent provide her with “a full and complete copy of any and all invoices, statements, bills, purchase orders, payments and like information that will provide a full accounting of the expenses incurred in the lengthy due process which began on February 4, 1997, and was brought against my daughter….This should include but not be limited to expenses incurred when school personnel were required to testify at the hearings.”
3. By letter dated January 13, 1999, the respondents replied to the complainant, advising her that they would comply with the request, that the requested records included attorney-client privileged material which it would be necessary to redact, that such redaction may take some time, and that in the meantime they would provide other documents.
4. By letter dated March 9, 1999, the complainant again asked for the records described in paragraph 2, above.
5. Having failed to receive the requested records, by letter dated March 19, 1999 and filed with the Commission on March 22, 1999, the complainant alleged that the respondents thereby violated the Freedom of Information (“FOI”) Act.
6. By letter dated April 28, 1999, the respondents provided the complainant with redacted copies of invoices and bills reflecting the amount incurred and paid by the respondents in the due process hearing involving the complainant’s daughter (hereinafter, “the packet”). The respondents apologized for the delay and noted that such delay was due to the need to accumulate the requested records and redact privileged information.
7. By letter dated May 11, 1999, the complainant acknowledged receipt of the packet but maintained that it was incomplete, suggesting that there were other costs involved in the due process hearing.
8. By letter dated May 27, 1999, the respondents requested that, if the complainant believed there were other records responsive to her requests, that she be more specific.
9. By letter dated June 11, 1999, the complainant informed the respondents that she believed other information fell within the scope of her complaint, including: teachers’ pay rates for time spent testifying and preparing to testify as witnesses; costs of substitute personnel during times when teachers were testifying; the retainer agreement between the respondent and their attorney; the pay rate of administrative staff who represented the respondents at the hearing; and any other included costs, such as time spent copying records.
10. By letter dated June 14, 1999, the respondents replied to the complainant, informing her that teachers did not receive a daily rate or overtime pay for testifying in due process matters or for witness preparation. The respondents informed the complainant of the pay rate for substitute teachers; that there was no retainer agreement between the respondents and their attorney, and that no other records exist which are responsive to her request.
11. At the hearing in this matter, the complainant contended that the information described in paragraph 9, above, should have been included, that the records supplied did not contain explanations, and that redactions from the packet were inappropriate.
12. It is found that, upon a fair and reasonable reading of the complainant’s January 8, 1999 request, the respondents could not have interpreted such request to include the information described in paragraph 9, above. Consequently, it is concluded that the information described in paragraph 9, above, was not fairly raised in the complaint and is therefore beyond the scope of this appeal. It is further concluded that the respondents did not violate §1-210(a), G.S. [formerly §1-19(a), G.S.], by failing to produce such information.
13. With regard to the explanations the complainant contends she did not receive, it is found that the FOI Act does not require public agencies to answer questions or to create records that do not already exist. Accordingly, it is concluded that the respondents did not violate §1-210(a), G.S. [formerly §1-19(a), G.S.], by failing to provide explanations for the records produced.
14. With respect to the redactions, the respondents first contend that the complainant is barred from complaining about such redactions, since they were not specifically raised in the complaint described in paragraph 5, above. However, it is found that the complainant could not have raised the issue of redactions in the complaint, since at the time she filed the complaint, the respondents had not provided her with any of the requested records. Moreover, the complaint alleges that all of the requested records were not provided, and since the redactions represent a portion of the requested records, it is concluded that the matter of the redactions is within the scope of this appeal.
15. Section 1-210(a), G.S. [formerly §1-19(a), G.S.], provides in relevant part:
[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…or to receive a copy of such records in accordance with the provisions of section 1-212…
16. Section 1-210(b)(11), G.S. [formerly §1-19(b)(11), G.S.], permits in pertinent part the nondisclosure of:
[n]ames 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…
17. It is found that portions of the packet relate to students other than the complainant’s child and are exempt from mandatory disclosure by virtue of §1-210(b)(11), G.S. [formerly §1-19(b)(11), G.S.]
18. It is therefore concluded that the respondents did not violate §1-210(a), G.S. [formerly §1-19(a), G.S.], by redacting from the packet the names, addresses, and other details identifying students other than the complainant’s child.
19. With respect to the respondents’ contention related to attorney-client privileged materials, it is found that the respondents failed to prove that redactions in the packet were permissible as such materials. Therefore, it is concluded that any such redactions were in violation of §1-210(a), G.S. [formerly §1-19(a), G.S.].
20. It is concluded that, while the request described in paragraph 2, above, was open to interpretation and required substantial time to fulfill, the respondents’ response time of more than three months was not prompt within the meaning of §1-210(a), G.S. [formerly §1-19(a), G.S.]. Therefore, it is concluded that the respondents violated the promptness provision set forth in §1-210(a), G.S. [formerly §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. Forthwith, the respondents shall provide to the complainant a copy of the packet described in paragraph 6 of the findings, above. In complying with this order, the respondents may redact those portions of the packet exempt from disclosure by virtue of §§1-210(b)(11) and (17), G.S. [formerly §§1-19(b)(11) and (17), G.S.].
2. Henceforth, the respondents shall strictly comply with the promptness provision of §1-210(a), G.S. [formerly §1-19(a), G.S.]
Approved by Order of the Freedom of Information Commission at its regular meeting of
October 13, 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:
Marian J. Lewis
213 Fillow Street
Norwalk, CT 06850
Superintendent of Schools,
Norwalk
Public Schools; and Norwalk
Public Schools
c/o Atty. Floyd J. Dugas
Berchem, Moses & Devlin, P.C.
75 Broad Street
Milford, CT 06460
__________________________
Melanie R. Balfour
Acting Clerk of the Commission
FIC1999-138/FD/mes/10141999