FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
|
In the Matter of a Complaint by |
FINAL DECISION |
||
|
Winona W. Zimberlin, |
|
||
|
|
Complainant |
|
|
|
|
against |
Docket #FIC 2000-538 |
|
|
Commissioner,
State of Connecticut, |
|
||
|
|
Respondent |
March 28, 2001 |
|
|
|
|
|
|
The above-captioned matter was heard as a contested
case on October 24, 2000, at which time the complainant and the respondents
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 respondents are public agencies within the meaning
of §1-200(1),
G.S.
2.
It is
found that, by letter dated September 7, 2000, the complainant requested that
the respondents provide her with access to: a June 2000 letter sent to the
office of civil rights in Boston [hereinafter “OCR”], which the
complainant believed was written by the respondent commissioner to all
Connecticut superintendents of schools regarding the section 504 due process
hearings; and documents sent by OCR to the respondent department in response
to such letter.
3.
It is
found that, by letter dated September 21, 2000, the respondents informed the
complainant that the respondent commissioner did not send a letter to OCR in
June, 2000 regarding section 504 hearings, but that rather, a member of the
staff of the respondents sent a preliminary draft of a circular letter on such
hearings to OCR in July, 2000 [hereinafter “the draft”].
It is further found that, by such letter, the respondents informed the
complainant that the OCR responses to the draft consisted of several revisions
[hereinafter “the revisions”]. It
is also found that, by such letter, the respondents denied the complainant
access to the draft and the revisions, contending that such records are
preliminary drafts that are exempt from mandatory disclosure by virtue of
§1-210(b)(1), G.S.
4.
By
letter dated and filed on September 28, 2000, the complainant appealed to this
Commission, alleging that the respondents violated the Freedom of Information
[hereinafter “FOI”] Act by denying her access to the draft and the
revisions.
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 inspect such records promptly during
regular office or business hours….
6. It
is found that the draft and the revisions are the only records maintained by
the respondents that are responsive to the request described in paragraph 2,
above.
7. It is further found that the draft and the revisions are
public records within the meaning §1-210(a), G.S.
The respondents submitted copies of the draft and the revisions to the
Commission for in camera review.
For identification purposes, the in camera documents have
been designated IC2000-538-1 through IC2000-538-15.
8. The respondents contend
that the draft and the revisions 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.
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).
11.
It is found that the respondents have determined that the public
interest in withholding the draft and the revisions clearly outweighs the
public interest in their disclosure, within the meaning of §1-210(b)(1), G.S.
12.
Upon review of the in camera documents described in
paragraph 7, above, it is concluded that such documents are preliminary drafts
or notes within the meaning of §1-210(b)(1), G.S.
13.
Section 1-201(e)(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.
14.
Upon review of the in camera documents described in
paragraph 7, above, it is concluded that such documents are interagency 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, within the meaning of §1-210(e)(1), G.S.
However, it is also concluded that in camera documents
IC2000-538-1 through IC2000-538-11 are preliminary drafts of a memorandum,
prepared by a member of the staff of a public agency, which are 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.
Accordingly, it is concluded that in camera documents
IC2000-538-1 through IC2000-538-11 are exempt from mandatory disclosure by
virtue of §§1-210(b)(1) and 1-210(e)(1), G.S., and that the respondents did
not violate the FOI Act by denying the complainant access to such documents,
as alleged in the complaint.
15.
Upon review of the in camera documents IC2000-538-12
through IC2000-538-15, it is concluded that such documents are not preliminary
drafts of a memorandum, prepared by a member of the staff of a public agency,
which are 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.
Accordingly, it is concluded that in camera documents
IC2000-538-12 through IC2000-538-15 are not exempt from mandatory disclosure
by virtue of §§1-210(b)(1) and 1-210(e)(1), G.S., and that the respondents
violated the FOI Act by denying the complainant access to such documents, as
alleged in the complaint.
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 the complainant with access to in camera documents IC2000-538-12 through IC2000-538-15.
Approved by Order of the Freedom of Information Commission at its regular meeting of March 28, 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:
Winona W. Zimberlin
Two Congress Street
Hartford, CT 06114-1024
Commissioner,
State of Connecticut,
Department
of Education; and State
of
Connecticut, Department of Education
c/o
Holly Jean Bray, Esq.
Assistant
Attorney General
55
Elm Street, PO Box 120
Hartford
CT 06141-0120
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2000-538/FD/paj/03/29/2001