FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter heard as a contested case on January 17, 2003, at which time the complainant and the respondents appeared 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.      By letter dated August 20, 2002, the complainant made a written request to the respondents for a copy of “school attendance policy and standards” and specifically for those standards that relate to “promotion and to the consequences for students who fail to meet the standards.”

 

3.      By letter dated September 14, 2002 and filed on September 17, 2002, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act for failing to comply with his request.

 

4.      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. 

 

            5.   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 . . . .”

 

            6.   It is found that to the extent the requested records exist and are maintained by the respondent, such records are public records within the meaning of §1-210(a), G.S.

 

            7.  By motion dated and filed on January 15, 2003, the respondents moved to dismiss the complaint pursuant to §1-206(b)(4), G.S.  In support of their motion, the respondents claimed that pursuant to §10-221(b), G.S., the responsibility for adopting attendance, promotion and retention policies for Connecticut public schools belongs to the local and regional boards of education and not the respondents.  The respondents also claim that their authority over school attendance and promotion policies is limited to providing assistance and guidance to the local and regional boards of education to develop such policies.  The respondent claimed that therefore, they do not maintain the requested records.

 

            8.   Section 1-206(b)(4), G.S., provides in relevant part that: 

 

Notwithstanding any provision of this subsection to the contrary, in the case of an appeal to the commission of a denial by a public agency, the commission may, upon motion of such agency, confirm the action of the agency and dismiss the appeal without a hearing if it finds, after examining the notice of appeal and construing all allegations most favorably to the appellant, that (A) the agency has not violated the FOI Act, or (B) the agency has committed a technical violation of the FOI Act that constitutes a harmless error that does not infringe the appellant’s rights under said act.

 

9.      After consideration of the notice of appeal and construing all allegations most favorably to the complainant, it is found that the appeal in this matter was timely filed, and that the respondent did not comply with the complainant’s request, which would constitute a violation of the FOI Act without facts and evidence, such as those contained in the respondents’ motion, to prove otherwise.  However, since only the notice of appeal may be examined when considering a motion to dismiss pursuant to §1-206(b)(4), G.S., such facts cannot be considered and the respondents’ motion must be denied.

 

10.  However, at the hearing on this matter, the complainant explained that he would not object to this Commission granting the respondents’ motion to dismiss because he is satisfied that pursuant to §10-221(b), G.S., the respondent does not maintain the records he requested.

 

11.  Based on the complainant’s admission described in paragraph 10, above, it is found that the respondents do not maintain any records responsive to the complainant’s request.

 

12.  It is concluded therefore that the respondents did not violate §§1-210(a) or 1-212(a), G.S., as alleged by the complainant.

 

 

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

 

            1.  The complaint is hereby dismissed.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of

April 9, 2003.

 

 

___________________________________

Ann B. Gimmartino

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:

 

John T. Price

85 Nortontown Road

Madison, CT  06443

 

Commissioner, State of Connecticut,

Department and Board of Education; and

State of Connecticut, Department and

Board of Education

c/o Laurie Adler, Esq.

Assistant Atto FINAL DECISION rney General

55 Elm Street, PO Box 120

Hartford,CT  06141-0120

 

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

 

FIC/2002-433FD/abg/04/11/2003