FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by
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FINAL DECISION
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Joseph Weymouth, |
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Complainants
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against
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Docket
#FIC 2001-261 |
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Principal, Montville
High School,
Montville Public
Schools, |
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Respondent
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January
23, 2002 |
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Complainant
against
Respondent
January 23, 2002
The above-captioned matter was heard as a contested case on September 10,
2001, at which time the complainant and the respondent appeared, stipulated to
certain facts and presented testimony, exhibits and argument on the complaint.
The 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. By letter of complaint dated
May 22, 2001 and filed on May 25, 2001, the complainant appealed to the
Commission alleging that the respondent violated the Freedom of Information (“FOI”)
Act by denying him access to records concerning his daughter’s application
for entry into the National Honor Society (“NHS”), as described more fully
in paragraph 3, below.
3.
It is found that by letter dated May 3, 2001, the complainant requested
that the respondent provide him with access to all information, notes,
comments and any other material related to his daughter’s application for
admission to the NHS for the 2001 session, which records were submitted to the
Faculty Council Selection Committee (“selection committee”) of the
Montville High School chapter of the NHS (hereinafter “requested records”).
The complainant initially asked the respondent for the requested
records on April 30, 2001 and communicated further with the respondent
regarding the request by telephone on May 1, 2001.
4. It is found
that by letter dated April 27, 2001, the NHS advisor at the Montville High
School notified the complainant’s daughter that she had not been accepted to
the NHS. When she inquired
further, she was told that one reason for non-acceptance was that her score
for “character” was not higher than average, and also that she had
received several adverse comments on score sheets that had been completed by
school faculty.
5.
It is found that there is an appeal process if entry to the NHS is
denied and that in order to determine whether an appeal would be feasible for
his daughter the complainant requested that the respondent provide him with
the records described in paragraph 3, above, in an attempt to determine the
accuracy and completeness of the information being assessed.
6.
It is found that the respondent has three unredacted pages of records
that are the records at issue in this complaint. These three pages contain the unredacted comments, and
identity of faculty, and the score/rating given to the complainant’s
daughter. The faculty comments
were submitted to, and used by, the selection committee in the committee’s
decision regarding students eligible to be inducted into the Montville High
School Chapter of the NHS. The
selection committee is comprised of faculty members of Montville High School.
7.
Initially the respondent denied the complainant access to all records
that he had, however, after seeking advice of counsel the respondent agreed on
May 14, 2001 to provide the complainant with a typed listing of the comments
of faculty, however, portions of the comments that would identify faculty were
redacted.
8.
The complainant reviewed the typed comments described in paragraph 7,
above, on May 15, 2001, but believes it to be incomplete because he says that
a comment that was quoted to both him and his daughter is not included.
The complainant therefore is seeking the unredacted comments of
faculty, in their original form, with the identity of authors, as well as the
score/rating sheets completed by faculty.
9.
The respondent indicated at the hearing in this matter that the only
faculty comments and score/rating information he has not turned over to the
complainant are those contained on the three pages described in paragraph 6,
above. It is therefore found that
the records at issue are the unredacted comments, the identity of faculty, and
the score/rating given to the complainant’s daughter (hereinafter “records
at issue” or “in camera records”).
10. Following the hearing in this matter, the records at issue were submitted to the Commission and reviewed in camera. The in camera records consist of three pages and have been designated IC 2001-261-1, IC 2001-261-2 and IC 2001-261-3 for identification purposes.
11. Section
1-200(5), G.S., in relevant part, defines “public records” or files as:
any recorded data or information relating to the conduct of
the public's business prepared, owned, used, received or retained by a public
agency, whether such data or information be handwritten, typed, tape-recorded,
printed, photostated, photographed or recorded by any other method.
12. Section 1-210(a), G.S., in
relevant part, further provides,:
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. 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. [Emphasis
added.]
13. It is concluded that the in
camera records are public records within the meaning of §§1-200(5)
and 1-210(a), G.S.
14. The respondent first contends that the selection committee is not a “public agency”.
15. Section 1-200(1), G.S., in
relevant part, defines "public agency" or "agency" as:
any executive, administrative or
legislative office of the state or any political subdivision of the state and
any state or town agency, any department, institution, bureau, board,
commission, authority or official of the state or of any city, town, borough,
municipal corporation, school district, regional district or other district or
other political subdivision of the state, including any committee of, or
created by, any such office, subdivision, agency, department, institution,
bureau, board, commission, authority or official ….. [Emphasis added.]
16. It is concluded that selection committee is a “public agency” within the meaning of §1-200(1), G.S.
17. The respondent next contends that the records at issue are exempt from
disclosure pursuant to §1-210(b)(1), G.S.
18. Section 1-210(b)(1), G.S., permits the nondisclosure of “[p]reliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.”
19. Section 1-210(e), G.S., further provides that notwithstanding
the provisions of §1-210(b)(1), G.S., disclosure shall be required of:
(1) 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,
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. [Emphasis
added.]
20. It is found that the records at issue constitute “recommendations” within the meaning of §1-210(e)(1), G.S. It is also found that the records at issue are not 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” within the meaning of §1-210(e)(1), G.S. It is also found that the respondent failed to prove that he determined that “the public interest in withholding …[the records at issue] clearly outweighs the public interest in disclosure”, within the meaning of §1-210(b)(1), G.S. [Emphasis added.]
21. It is therefore concluded that the records at issue are not exempt “preliminary drafts or notes”, within the meaning of §1-210(b)(1), G.S.
22. The respondent further contends that disclosure of the identity of faculty and the score/rating will have a chilling effect on faculty members being candid in the future.
23. It is found however, that in the absence of a federal law or state statute that mandates confidentiality, the records at issue must be disclosed pursuant to the provisions of §1-210(a), G.S.
24. Further, it is noted that the Family Educational Rights and Privacy Act, specifically, 20 U.S.C. §1232g(a)(1)(A), provides the parents of students with certain rights of access to the educational records of their children.
25. 20 U.S.C. §1232g(a)(1)(A) provides:
No funds shall be made available under any applicable
program to any educational agency or institution which has
a policy of denying, or which effectively prevents, the
parents of students who are or have been in attendance at a
school of such agency or at such institution, as the case
may be, the right to inspect and review the education
records of their children. If any material or document in the education record of a student includes information on more than one student, the parents of one of such students shall have the right to inspect and review only such part of such material or document as relates to such student or to be informed of the specific information contained in such part of such material. Each educational agency or institution shall establish appropriate procedures for the granting of a request by parents for access to the education records of their children within a reasonable period of time, but in no case more than forty-five days after the request has been made.
26. “Educational records” are defined at 20 U.S.C. §1232g(a)(4)(A) as those
records, files, documents, and other materials which (i) contain information directly
related to a student and (ii) are maintained by an educational agency or institution or by a
person acting for such agency or institution.
27. It is found that the records at issue (i) contain information directly related to a student and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.
28. It is therefore concluded that the records at issue are “educational records” within the meaning of 20 U.S.C. §1232g(a)(4)(A), and are therefore records to which the complainant, as the parent of the student, has a right of access.
29. It is further concluded that
the respondent violated §1-210(a), G.S., when he failed to provide the
complainant with access to the in camera records, i.e. the
unredacted comments and score/rating information, more specifically described
as IC 2001-261-1, IC 2001-261-2 and IC 2001-261-3, above.
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 and to receive a copy of IC 2001-261-1, IC 2001-261-2 and IC
2001-261-3.
Approved by Order of the Freedom of Information
Commission at its regular meeting of January 23, 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:
Henry J. Zaccardi, Esq.
Shipman and Goodwin
One American Row
Hartford, CT 06103-2819
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-261/FD/paj/1/28/2002