FIC2002-105

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Chris Dehnel and Journal Inquirer,
		Complainants
	against		Docket #FIC 2002-105
Interim Superintendent of Schools, Tolland Public Schools; and Board of Education, Town of Tolland,
		Respondent	August 28, 2002

The above-captioned matter was heard as a contested case on May 31, 2002, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. At the hearing on this matter, James Wiese, the subject of the record at issue, requested and was granted party status as a respondent.

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

1. The respondent superintendent and board of education are public agencies within the meaning of §1-200(1), G.S.

2. It is found that after an oral request, a reporter for the complainant newspaper requested in writing of the respondent superintendent on February 12, 2002 access, under the Freedom of Information (“FOI”) Act, to the disciplinary records of Tolland High School teacher James Wiese. More specifically, the reporter stated that she was not seeking Mr. Wiese’s evaluation records, but rather the disciplinary records regarding an incident in the year 2000 involving the showing of a video entitled “Damned in the USA” in an American Government class.

3. After notifying Mr. Wiese of the foregoing request and receiving his objection to disclosure by letter dated February 28, 2002, purportedly pursuant to §10-151c, G.S., the respondent superintendent, through counsel, informed the complainants that access was being denied because of such objection.

4. By letter dated March 11, 2002, and filed with the Commission on March 12, 2002, the complainants appealed the denial of access to the requested disciplinary records.

5. Although the respondent Wiese argues that the February 12, 2002 letter of request was not an official request for records under the FOI Act because the hand-written letter states that it is not a “formal request,” it is found that the letter is sufficient to constitute an official request and obviously was treated as such by all respondents to this case.

6. Section 1-210(a), G.S., provides in relevant part that

Except 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 or to receive a copy of such records in accordance with the provisions of section 1-212.

7. It is found that there is only one record responsive to the complainants’ request, which is called a “Last Chance Agreement, dated January 6, 2000, and which has been provided to the Commission for an in camera inspection.

8. It is found that the “Last Chance Agreement” is a public record within the meaning of §1-210(a), G.S.

9. The respondents superintendent and board of education make no claim that the subject record is exempt from disclosure. They merely assert that they have possession of the record and have not disclosed it because of respondent Wiese’s objection. For his part, the respondent Wiese claims only that the record is exempt from mandatory disclosure under §10-151c, G.S., as a teacher evaluation record. It is noted that no claim for exemption is made pursuant to §1-210(b)(2), G.S., which permits the nondisclosure of “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.”

10. Section 1-214(b), G.S., 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 (1) each employee concerned, provided such notice shall not be required to be in writing where impractical due to the

large number of employees concerned and (2) the collective bargaining representative, if any, of 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.

Emphasis added.

11. Section 1-214(c), G.S., provides:

A public agency which has provided notice under subsection (b) of this section shall disclose the records requested unless it receives a written objection from the employee concerned or the employee's collective bargaining representative, if any, within seven business days from the receipt by the employee or such collective bargaining representative of the notice or, if there is no evidence of receipt of written notice, not later than nine business days from the date the notice is actually mailed, sent, posted or otherwise given. Each objection filed under this subsection shall be on a form prescribed by the public agency, which shall consist of a statement to be signed by the employee or the employee's collective bargaining representative, under the penalties of false statement, that to the best of his knowledge, information and belief there is good ground to support it and that the objection is not interposed for delay. Upon the filing of an objection as provided in this subsection, the agency shall not disclose the requested records unless ordered to do so by the Freedom of Information Commission pursuant to section 1-206. Failure to comply with a request to inspect or copy records under this section shall constitute a denial for the purposes of section 1-206. Notwithstanding any provision of this subsection or subsection (b) of section 1-206 to the contrary, if an employee's collective bargaining representative files a written objection under this subsection, the employee may subsequently approve the disclosure of the records requested by submitting a written notice to the public agency.

12. At all times material to this complaint, §10-151c provides:

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 to be public records and shall not be subject to the provisions of section 1-210, provided that any teacher may consent in writing to the release of his records by a board of education. Such consent shall be required for each request for a release of such records. For the

purposes of this section the term "teacher" shall include each certified professional employee below the rank of superintendent employed by a

board of education in a position requiring a certificate issued by the State Board of Education.

13. It is found that the respondent superintendent notified the respondent Wiese of the complainants’ request pursuant to §1-214(b), G.S., and that the respondent Wiese submitted his objection to disclosure pursuant to §1-214(c), G.S. Yet, as found in paragraph 9 of the findings, above, the only claim of exemption to disclosure in this case is based on §10-151c, G.S. Thus, it is found that both the §1-214(b), G.S., notice and the §1-214(c), G.S., objection were unnecessary, inappropriate and dilatory in this case. See also, Thomas B. Mooney, A Practical Guide to Connecticut School Law, Second Edition, (Connecticut Association of Boards of Education, Inc. 2000), pp.68-69.

14. At all times material to this matter, the governing law as to the disclosure of teacher misconduct records provided that such records do not constitute records of teacher performance and evaluation within the meaning of §10-151c, G.S. See Carpenter v. FOI Commission, 59 Conn. App. 20 (2000); Jerr v. FOI Commission, Super. Ct. JD New Britain, CV 0504546S (memo. of dec. August 6, 2001, Cohn, J.); Vogell et al. v. Superintendent of Schools et al., Docket #FIC 1998-249 (May 12, 1999); Schiller et al. v. Meriden Board of Education et al., Docket #FIC 87-83 (August 23, 1989).

15. In the Carpenter case, the Appellate Court stated:

. . . we are persuaded . . . that the [FOI] commission reasonably concluded that the board of education documents related only to a specific incident of personal misconduct and were not records of teacher performance and evaluation. Only the plaintiff’s personal conduct was at issue; nothing in the record relates to the plaintiff’s ability to teach. Not all disciplinary records are the same; each presents a separate factual issue.

See also, Jerr, above, (“The court’s review of the entire administrative record reveals that the documents in issue appear to relate to a specific alleged criticism of Jerr’s conduct by school administrators. . . .”).

16. The respondent Wiese contends that the “Last Chance Agreement” is a record of his performance and an evaluation record of him as a teacher, and not a record of misconduct.

17. In determining whether the record at issue is a record of teacher performance and evaluation, or whether it is a record of misconduct, the Commission is guided by the quoted language from the Carpenter decision that not all disciplinary records are the same and that each record presents a separate factual issue.

18. In this case, it is found that on balance the “Last Chance Agreement,” which the respondents have stated is the only document responsive to the complainants’ request for disciplinary records, is not a record of teacher performance and evaluation, within the meaning of §10-151c, G.S. It is a record describing: the personal misconduct of the respondent Wiese with respect to a specific incident; the nature of the discipline imposed as a result of that specific incident; and future disciplinary action that may be imposed on the respondent Wiese if he repeats such misconduct. The fact that the misconduct occurred during a class does not alter the conclusion that the agreement, in essence, is a record addressing the personal misconduct of a teacher, rather than a record of performance and evaluation, because the misconduct involved is beyond the pale of a reasonable classroom activity by any teacher whose students are of the ages of the respondent Wiese’s students. To hold otherwise would be to elevate form over substance and would permit the withholding from the public of, for example, most of a school system’s records describing the discipline imposed against a teacher for molesting a student, if the molestation occurred during a class.

19. The respondent Wiese also argues that, notwithstanding the pre-existing state of the law, the legislature did not intend that teacher misconduct records be open to public disclosure until October 1, 2002. In support of this proposition, he cites a statement by State Senator Coleman to the effect that Public Act (“P.A”.) 02-138, §20 (effective October 1, 2002) is prospective in application. See Senate Proceedings, May 7, 2002, p. 184 et seq. While noting an apparently conflicting statement by Representative Cafero (House Proceedings, May 2, 2002, p.315 et seq.), the respondent Wiese argues that the prospective application of this provision infers the legislature never intended that teacher misconduct records be subject to disclosure when it enacted the current version of §10-151c, G.S.

20. The Commission takes administrative notice of the entire legislative history of P.A. 02-138, §20, including the legislative history of Senate Bill 376 and House Bill 5680 of the February 2002 Session of the General Assembly, which were the antecedent bills leading to the public act.

21. P.A. 02-138, §20 provides in relevant part:

Notwithstanding any provision of the general statutes, records maintained or kept on file by any local or regional board of education which are records of the personal misconduct of a teacher shall be deemed to be public records and shall be subject to disclosure pursuant to the provisions of subsection (a) of section 1-210. Disclosure of such records of a teacher’s personal misconduct shall not require the consent of the teacher.

22. It is a tenet of statutory construction that the legislature is presumed to be aware of the interpretation that courts have placed on existing legislation and of the implications that they will draw from its inaction. State v. AFSCME, Council 4, 249 Conn. 474, 481 (1999). Thus, it is presumed that the legislature was aware of both the Carpenter and Jerr decisions concerning the disclosure of teacher misconduct cases and, as the legislative history of P.A. 02-138 indicates, was concerned about codifying into statute the principle that, notwithstanding the confidentiality of records of teacher performance and evaluation under §10-151c, G.S., records of teacher misconduct must continue to remain open to the public even in the face of attempts by some school districts to treat such records as if they were confidential under that statute. See testimony of various speakers and comments by various legislators on Senate Bill 376 at a public hearing on March 6, 2002 before the Government Administration and Elections (“GAE”) Committee, particularly the testimony of Ronald Cordilico and Chris Powell.

23. Furthermore, it is more than ironic that counsel for the respondent Wiese, citing the Carpenter and Jerr cases, testified before the GAE Committee on Senate Bill 376 to the effect that the governing law then in effect requires the disclosure of teacher misconduct records and that such records do not constitute records of teacher performance and evaluation within the meaning of §10-151c, G.S. The following is the relevant portion of his testimony:

“The argument as reported in the media, which is erroneous, is that records of abuse by teachers or letters of reprimand or disciplinary actions taken against the teacher are not subject to disclosure. The simple answer is that such records are in fact subject to disclosure. They are not protected by 10-151c. There are two court decisions which hold that this type of record is disclosable. These decisions are Carpenter vs. FOIC, that’s an Appellate Court decision and Juror [sic, Jerr] vs. FOIC which is a Superior Court decision.

“In Carpenter, the court held that records relating to incidents of the showing to students either intentionally or unintentionally of objectionable materials was disclosable. In Juror [sic, Jerr], the document ordered to be disclosed was a letter of reprimand.

“In sum, whatever the arguments being put forward by the proponents of disclosure, the recent and thankfully rare high profile cases of teacher misconduct is not a valid argument. Since the essence of these holdings is that those documents relating to personal misconduct of a teacher are in fact disclosable. . . .

. . .

“Well any records pertaining to personal misconduct are disclosable. Any records.”

Testimony of Ron Cordilico before the GAE Committee on March 6, 2002 concerning Senate Bill 376, pp. 41-42.

24. Thus, it is concluded that the teacher misconduct record at issue is not exempt from public disclosure under §10-151c, G.S.; that it is not merely accessible on and after October 1, 2002; and such record was and is accessible to the public at all times material to this complaint pursuant to §§1-210(a) and 1-212, G.S.

25. Consequently, it is also concluded that the respondent superintendent and board of education violated §§1-210(a) and 1-212, G.S., by failing to promptly provide the complainants with access to the “Last Chance Agreement” dated January 6, 2000.

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

1. The respondent superintendent and board of education shall forthwith provide the complainants with a copy of the “Last Chance Agreement” dated January 6, 2000 pertaining to the respondent Wiese, at no charge to the complainants.

Approved by Order of the Freedom of Information Commission at its regular meeting of August 28, 2002.

_______________________________________

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:

Chris Dehnel and Journal Inquirer

306 Progress Drive

PO Box 510

Manchester, CT 06045-0510

Interim Superintendent of Schools,

Tolland Public Schools; and Board

of Education, Town of Tolland

c/o Richard A. Mills, Jr., Esq.

Shipman & Goodwin, LLP

One American Row

Hartford, CT 06103-2819

James Wiese

c/o Ronald Cordilico, Esq.

21 Oak Street, Suite 500

Hartford, CT 06106-8001

________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2002-105/FD/paj/8/29/2002