FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by |
FINAL DECISION |
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Complainant |
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against |
Docket #FIC 2000-457 |
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Chairperson,
Board of Education, |
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Respondents |
January 24, 2001 |
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The above-captioned matter was heard as a contested
case on September 25, 2000, 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 §1-200(1),
G.S.
2.
By letter dated July
13, 2000 to the respondent, the complainant made a request for copies of the
“evaluation forms for the Superintendent of Schools completed by each board
of education member.”
3.
By letter dated July
21, 2000 to the complainant, the respondent denied her July 13, 2000 request
claiming that the requested records comprise preliminary drafts and notes of
the individual board members and are neither public records nor subject to
disclosure.
4.
By letter dated
August 16, 2000 and filed on August 17, 2000, the complainant appealed to this
Commission alleging that the respondent violated the Freedom of Information (“FOI”)
Act by denying her July 13, 2000 records request.
5.
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, 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 receive a copy of such records
in accordance with the provisions of section 1-212.
Any agency rule or regulation, or part thereof, that conflicts with the
provisions of this subsection or diminishes or curtails in any way the rights
granted by this subsection shall be void.
6.
Section 1-212(a), G.S.,
provides in relevant part that “[a]ny person applying in writing shall
receive, promptly upon request, a plain or certified copy of any public record
. . . .”
7.
It is found that the
requested records are public records within the meaning §1-210(a), G.S.
8.
The respondent
contends that the requested records are “preliminary drafts or notes”
within the meaning of §1-210(b)(1), G.S., and are exempt from mandatory
disclosure.
9.
Section 1-210(b)(1),
G.S., provides in relevant part that nothing in the FOI Act shall be construed
to require disclosure of “preliminary drafts or notes provided the public
agency has determined that the public interest in withholding such documents
clearly outweighs the public interest in disclosure . . . .”
10.
Section 1-210(e)(1),
G.S., [formerly §1-210(c)(1), G.S.], provides in relevant part that
notwithstanding the provisions of §1-210(b)(1), G.S., disclosure shall be
required of:
[i]nteragency
or intra-agency memoranda or letters, advisory opinions, recommendations or
any report comprising part of the process by which governmental decisions and
policies are formulated, except disclosure shall not be required of a
preliminary draft of a memorandum, prepared by a member of the staff of a
public agency, which is subject to revision prior to submission to or
discussion among the members of such agency.
11.
In Shew v. Freedom
of Information Commission, the Supreme Court ruled that “the concept of
preliminary [drafts or notes], as opposed to final [drafts or notes], should
not depend upon . . . whether the
actual documents are subject to further alteration . . .” but rather “[p]reliminary
drafts or notes reflect that aspect of the agency’s function that precede
formal and informed decision making . . . . It is records of this preliminary,
deliberative and predecisional process that
. . . the exemption was meant to encompass.”
Shew v. Freedom of Information Commission, 245 Conn. 149, 165
(1998).
12.
It is found that on
or about June 8, 2000, the board of education of Windsor Locks Public Schools
(hereinafter “the board”) began the process for evaluating its
superintendent and at its regular meeting of June 8, 2000, the respondent
chairperson passed out blank evaluation forms to each board member.
13.
It is found that, in
general, the board’s evaluation process of the superintendent’s
performance was as follows:
a.
each board member and
the superintendent received a copy of an evaluation form;
b.
each board member
completed an evaluation form by responding to each of the questions contained
in the form and by adding their own questions
regarding performance or other issues they believed should be addressed during
the evaluation process;
c.
the superintendent
completed an evaluation form by responding to each of the questions contained
in the form and by addressing any other issues she considered relevant;
d.
each board member and
the superintendent submitted their completed evaluation form to the
chairperson who completed another evaluation form which included all of the
responses given by each board member and the superintendent;
e.
the board met in
executive session, at which time the board interviewed the superintendent
regarding her performance and then, outside of the presence of the
superintendent, discussed each question on the evaluation form and the various
responses given to each;
f.
after the executive
session, one response was decided upon for each question and a final
evaluation form was completed which reflected such responses and included a
narrative regarding the superintendent’s performance;
g.
a second meeting was
held with the superintendent regarding the board’s evaluation and any
necessary corrections or changes were made after such meeting;
h.
the board and the
superintendent signed the final draft of the evaluation, which was approved at
the board’s regular meeting of July 27, 2000.
14.
It is found that the
evaluation forms as submitted to the chairperson by each board member were
handwritten and were intended to provide the chairperson, with an outline of
the board’s general opinion regarding the superintendent’s performance and
to raise issues concerning her performance that needed to be addressed during
the board’s executive session discussion on the matter.
15.
It is found that the
requested records reflect that aspect of the board’s evaluation process that
preceded formal and informed decision-making and are part of the preliminary,
deliberative and predecisional process of evaluating the superintendent.
16.
It
is therefore found that the requested records are preliminary drafts or notes
within the meaning of §1-210(b)(1), G.S.
17.
It is found that the
respondent chairperson determined that the public interest in withholding the
requested records clearly outweighs the public interest in disclosure.
18.
It is also found,
however, that the requested records constitute “intra-agency
. . . recommendations or . . .report[s] comprising part of the process
by which governmental decisions and policies are formulated . . .” within
the meaning of §1-210(e)(1), G.S., [formerly §1-210(c)(1), G.S.].
19.
It is further found
that the board members were acting in their official capacity when they
completed their evaluation forms and that such board members are not staff
members of the board; consequently the requested records do not constitute “preliminary
drafts . . . prepared by a member of the staff of a public agency . . .
subject to revision prior to submission to or discussion among the members of
such agency” within the meaning of §1-210(e)(1),
G.S., [formerly §1-210(c)(1), G.S.].
20.
Based
on the foregoing, it is concluded that the requested records are not exempt
from mandatory disclosure pursuant to §§1-210(b)(1) and 1-210(e)(1), G.S.,
[formerly §1-210(c)(1), G.S.].
21.
It is further
concluded that the respondent violated §§1-210(a) and 1-212(a), G.S., by
denying the complainant’s request for copies of the completed evaluation
forms.
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 a copy of the records described in paragraphs 2 and 13b, of the findings above, free of charge.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 24, 2001.
_________________________________________
Petrea A. Jones
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:
Nancy J. LaPointe
154 Spring Street
Windsor Locks, CT 06096
Chairperson,
Board of Education
Windsor Locks
Public Schools
c/o Loren Lettick,
Esq.
1062 Barnes Road, Suite 307
Wallingford, CT 06492-2576
___________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2000-457/FD/paj/01/29/2001