FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Mitchell D. Poudrier,
		Complainant
	against		Docket #FIC 2000-086
Superintendent of Schools, Killingly Public Schools,
		Respondents	September 13, 2000

The above-captioned matter was heard as a contested case on March 27, 2000, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  Pursuant to §1-206(b)(1), G.S., the hearing officer granted party status to William Lefferts and Richard Jerr, the teachers whose personnel file records are at issue.  The personnel file records at issue were reviewed in camera.

 

            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 §1-200(1), G.S.

 

2.  It is found that by letter dated January 27, 2000, the complainant requested that the school administrator of the Killingly High School provide him with the following records (hereinafter “requested records”):

 

a.       work history and personnel file, including letters of reprimand, disciplinary reports, drug test, background checks, past work history, etc., for Lefferts and Jerr, two special education teachers;

b.      any and all documents involving incidents with the teachers named in 2a, above, including reports on discussions between teachers and supervisory staff such as principal and other superiors;

c.       a complete unabridged copy of Jerr’s petition circulated to class;

d.      complete copies of school expenditures for the last five years for special education, itemized with description of purchase;

e.       complete copies of school expenditures for the last five years for non-special education, including extracurricular activities such as sports and after school clubs, itemized with description of purchase;

f.        accurate description of rooms used for special education purposes, dimensions, size and number of windows, equipment in room, age and condition of items, including room number etc.;

g.       accurate description of rooms used for non-special education, dimensions, size and number of windows, equipment in room, age and condition of items, including room number etc.

 

            3.   Section 1-214(b), G.S., in relevant part, provides:

 

"Whenever a public agency receives a request to inspect or copy records contained in any of its employees' personnel or medical files and similar files and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency shall immediately notify in writing…each employee concerned….  Nothing herein shall require an agency to withhold from disclosure the contents of personnel or medical files and similar files when it does not reasonably believe that such disclosure would legally constitute an invasion of personal privacy."

 

4.  It is found that by letter dated February 8, 2000 the respondent informed Lefferts and Jerr of the complainant’s request and provided them with an opportunity to object to the disclosure of their personnel file records pursuant to §1-214(b), G.S.

 

5.  It is also found that by letter dated February 8, 2000, the respondent informed the complainant that he had notified Lefferts and Jerr of the request and advised him that he would contact him in approximately ten days.

 

6.  By letter dated February 21, 2000 and filed on February 25, 2000, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying him access to the requested records.

 

            7.   Section 1-210(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…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….”

 

8.  With respect to the request as described in paragraph 2a, above, it is found that the respondent maintains the personnel files of Lefferts and Jerr, which contain records responsive to the complainant’s request.  The records maintained are public records within the meaning of §1-210(a), G.S.

 

            9.  The respondent, as well as Lefferts and Jerr, contend that the personnel file records at issue are exempt from disclosure pursuant to §§1-210(b)(2) and 10-151c, G.S. 

 

10.  Section 1-210(b)(2), G.S., permits the nondisclosure of personnel, medical or similar files the disclosure of which would constitute an invasion of personal privacy.

 

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

 

"any 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 §1-210, provided that any teacher may consent in writing to the release of his records by a board of education."

 

12.  Following the hearing in this matter, the respondent submitted the records contained in Lefferts’ and Jerr’s personnel files to the Commission, and an in camera inspection was conducted.

 

13.  It is concluded that the in camera records are “personnel” files within the meaning of §1-210(b)(2), G.S.

 

14.  Not all of the in camera records are claimed to be exempt from disclosure. The specific records claimed to be exempt have been identified on the in camera index and are described in paragraphs 16, 17, 19, 20, and 21 through 27, below.

 

15.  All of the in camera records for which no claim of exemption has been made are disclosable.

 

            LEFFERTS RECORDS

16.  The following records are claimed to be exempt from disclosure pursuant to §10-151c, G.S.: Lefferts IC# 2000-086-4 through 10; and the following are claimed to be exempt pursuant to §1-210(b)(2), G.S.: Lefferts IC# 2000-086-11 [2000-086-11 was not listed on the in camera index, however, a claim of exemption was made in the respondent’s brief dated and filed on March 30, 2000], 2000-086-12, 2000-086-13 & 14, 2000-086-15, 2000-086-16, 2000-086-17, 2000-086-18 &19, 2000-086-33, 2000-086-38, 2000-086-42, 2000-086-43 through 50, 2000-086-51, 2000-086-59 and 2000-086-63. 

 

17.  It is found that Lefferts IC# 2000-086-4 through 10 constitute records of teacher performance and evaluation within the meaning of §10-151c, G.S., and are therefore, exempt from disclosure pursuant to such provision.

 

18.  Pursuant to Perkins v. Freedom of Information Commission, 228 Conn. 158 (1993), the appropriate test when examining a claim of exemption pursuant to §1-210(b)(2), G.S., is as follows, first the information sought must constitute “personnel or medical files and similar files” and second, two elements must be met: the information sought does not pertain to legitimate matters of public concern, and such information is highly offensive to a reasonable person.

 

19.  It is concluded that Lefferts IC#2000-086-12, 2000-086-13, 2000-086-14 and 2000-086-19 are exempt from disclosure pursuant to §1-210(b)(2), G.S., because there is no legitimate public interest in disclosure, and disclosure would be highly offensive to a reasonable person.

 

 20.  However, it is found that the following records, with the exception of the information identifying beneficiaries and social security numbers, Lefferts IC#2000-086-11, 2000-086-15, 2000-086-16, 2000-086-17, 2000-086-18, 2000-086-33, 2000-086-38, 2000-086-42, 2000-086-43 through 50, 2000-086-51, 2000-086-59 and 2000-086-63, contain information that pertains to legitimate matters of public concern, and disclosure would not be highly offensive to a reasonable person.  Consequently, it is concluded that disclosure of such records would not constitute an invasion of privacy and therefore, such records are not exempt pursuant to §1-210(b)(2), G.S.

 

            JERR RECORDS

            21.  The following records are claimed to be exempt from disclosure pursuant to §10-151c, G.S.: Jerr IC# 2000-086-3, 2000-086-4, 2000-086-8, 2000-086-11, 2000-086-12, 2000-086-15, 2000-086-16, 2000-086-17, 2000-086-18, 2000-086-19 [2000-086-19 was not listed on the in camera index, however, a claim of exemption was made in the respondent’s brief dated and filed on March 30, 2000], 2000-086-22, 2000-086-26, 2000-086-27, 2000-086-28, 2000-086-29, 2000-086-30; and the following records are claimed to be exempt from disclosure pursuant to §1-210(b)(2), G.S.: Jerr IC# 2000-086-34, 2000-086-38, 2000-086-39, 2000-086-40, 2000-086-41, 2000-086-42, 2000-086-43, 2000-086-44, 2000-086-45, 2000-086-46, 2000-086-47, 2000-086-48, 2000-086-50 & 51, 2000-086-54, 2000-086-55, 2000-086-57, 2000-086-58, 2000-086-61, 2000-086-63, 2000-086-64, 2000-086-83, 2000-086-92 through 94, 2000-086-96, 2000-086-102, 2000-086-104, 2000-086-105, 2000-086-106, 2000-086-108, 2000-086-111, 2000-086-113, 2000-086-117 through 122, 2000-086-124, 2000-086-125 through 129, 2000-086-131, 2000-086-134 &135, 2000-086-136 through 153, 2000-086-161 through 163, 2000-086-165, 2000-086-166, 2000-086-171 and 2000-086-172.

 

22.  With respect to the claim of exemption pursuant to §10-151c, G.S., it is concluded that Jerr IC# 2000-086-3 & 2000-086-4, 2000-086-8, 2000-086-11, 2000-086-12, 2000-086-15, 2000-086-16, 2000-086-17, 2000-086-18, 2000-086-22, 2000-086-26, 2000-086-27, 2000-086-28, 2000-086-29, 2000-086-30 are not records of teacher performance and evaluation within the meaning of §10-151c, G.S., and are therefore, not exempt from disclosure pursuant to such provision.  It is also concluded that such records pertain to legitimate matters of public concern.  Consequently, it is further concluded that such records are not exempt from disclosure pursuant to §1-210(b)(2), G.S.

 

23.  It is also concluded, however, that Jerr IC# 2000-086-136 through 153 constitute records of teacher performance and evaluation within the meaning of §10-151c, G.S., and consequently, are exempt from disclosure pursuant to such provision.

 

24.  With respect to the claim of exemption pursuant to §1-210(b)(2), G.S., the respondent contends that Jerr IC# 2000-086-34, 2000-086-38 and 2000-086-39 are medical records and therefore exempt from disclosure.  It is found that such records are “personnel file” records, within the meaning of §1-210(b)(2), G.S., and are records that pertain to legitimate matters of public concern.  It is also found that the information contained therein is not highly offensive to a reasonable person.  It is therefore, concluded that the records described in this paragraph are not exempt from disclosure pursuant to §1-210(b)(2), G.S.

 

25.  However, it is also concluded that the following records are exempt from disclosure pursuant to §1-210(b)(2), G.S., because the information contained therein does not pertain to legitimate matters of public concern, and disclosure would be highly offensive to a reasonable person: Jerr IC# 2000-086-40, 2000-086-42, 2000-086-43, 2000-086-44, 2000-086-45, 2000-086-46, 2000-086-47, 2000-086-48, 2000-086-50, 2000-086-51, 2000-086-54, 2000-086-58, 2000-086-63 and 2000-086-83.

 

            26.  It is further concluded that the following records, with the exception of the information identifying beneficiaries, spouse, children, social security numbers, personal bank/financial account numbers, unlisted home telephone number and employee tax withholding information, are disclosable, as they contain information that pertains to legitimate matters of public concern, and disclosure would not be highly offensive to a reasonable person: Jerr IC# 2000-086-41, 2000-086-55, 2000-086-61, 2000-086-64, 2000-086-92, 2000-086-93, 2000-086-94, 2000-086-96, 2000-086-104, 2000-086-105, 2000-086-106, 2000-086-111, 2000-086-113, 2000-086-117, 2000-086-118, 2000-086-119, 2000-086-120, 2000-086-121, 2000-086-122, 2000-086-124, 2000-086-125, 2000-086-126, 2000-086-127, 2000-086-128, 2000-086-129, 2000-086-131, 2000-086-134, 2000-086-135, 2000-086-161, 2000-086-162, 2000-086-163, 2000-086-165, 2000-086-166, 2000-086-171, 2000-086-172.  Consequently, it is concluded that disclosure of such records would not constitute an invasion of privacy and therefore, such records are not exempt from disclosure pursuant to §1-210(b)(2), G.S.

 

27.  It is concluded, with respect to the personnel file records at issue, that the respondent did not violate §1-210(a), G.S., when he failed to disclose those records found to be exempt from disclosure pursuant to §§1-210(b)(2) and 10-151c, G.S., however, he violated §1-210(a), G.S., when he failed to disclose those records found not to be exempt from disclosure, and those records for which no claim of exemption was made but which records were not promptly disclosed to the complainant.

 

28.  With respect to the request as described in paragraph 2b, above, it is found that the respondent does not maintain any records responsive to such request.  Consequently, it is concluded that the respondent did not violate §1-210(a), G.S., when he failed to disclose the requested records.

 

29.  With respect to the request as described in paragraph 2c, above, it is found that the respondent does not maintain any petition other than the petition already provided to the complainant.  The difference in the two copies provided to the complainant is that the names of students as well as the name of the Special Education aide were redacted from one copy.  It is therefore, concluded that the respondent did not violate §1-210(a), G.S.

 

30.  With respect to the requests as described in paragraph 2d, 2e, 2f and 2g, above, it is found that by letter dated February 28, 2000, the respondent provided the complainant with access to the records maintained, that are responsive to his request.  The respondent also informed the complainant that copies of such records are available at fifty-cents per page in keeping with the permitted statutory rate.  The respondent is not required under the FOI Act to create records that do not already exist, in order to satisfy the complainant’s request for records or information.  The respondent is however, obligated to provide the complainant with access to inspect or copy existing non-exempt records that are responsive to his request.

 

            31.  It is concluded that with respect to the requests as described in paragraph 2d, 2e, 2f and 2g, the respondent did not violate §1-210(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 respondent shall provide the complainant with access to inspect or to receive a copy of the personnel file records of Lefferts and Jerr   a) found not to be exempt from disclosure, and more fully described in paragraphs 16, 17, 19, 20, 21 through 27 of the findings, above, and  b) for which no claim of exemption was made.

 

            2.   In complying with paragraph 1 of the order, the respondent may redact the names or addresses of students pursuant to §1-210(b)(11), G.S.; information identifying beneficiaries, spouses, children; social security numbers; personal bank/financial and mortgage account information; unlisted home telephone numbers and employee tax withholding information.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 13, 2000.

 

_________________________

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:

 

 

Mitchell D. Poudrier

15 Courtney Lane

Dayville, CT  06241

 

 

Superintendent of Schools, Killingly Public Schools

c/o Atty. Lawrence J. Campane

Sullivan, Schoen, Campane & Connon, LLC

646 Prospect Avenue

Hartford, CT  06105-4286

 

William Lefferts and Richard Jerr

c/o Atty. Ronald Cordilico

Legal Counsel

CT Education Association

21 Oak Street, Suite 500

Hartford, CT  06106-8001

 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

 

 

FIC2000-086FD/mrb/09/15/00