FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

            The above-captioned matter was heard as a contested case on November 19, 2003, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.  The respondent provided notice of this hearing and the Commission’s proceedings to Mr. Ruben Diaz, a former employee of the respondent school district, whose records are at issue in this complaint.  Mr. Diaz did not appear at the hearing in this matter.    

           

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.  It is found that by letter dated May 23, 2003, the complainant requested that the respondent provide her with a complete copy of Mr. Diaz’s “personal” file.  Her letter further indicated “[U]nder the Freedom of Information Act, I have the right to see his personal record.” 

 

            3.  It is found that by letter dated May 27, 2003 the respondent provided the complainant with some records and informed the complainant that “[B]ased on our review of the records of the Regional School District No. 8 Boards of Education…attached is a copy of materials contained in Ruben Diaz’s file that are subject to FOI.” 

 

            4.  It is found that after receiving the records described in paragraph 3, above, the complainant telephoned the respondent’s office and at that time indicated to the respondent’s secretary that she had not received any records concerning complaints against Mr. Diaz and that she (the complainant) had written three such letters.

 

            5.  It is also found that by letter dated May 29, 2003 the complainant followed-up with the respondent and informed him that, “[O]n May 23, 2003, I sent a request for Mr. Diazs (sic), complete personnel file.  On May 28, 2003 I received very little of his file.  You stated that that was all the information that you were allowed to give under FOI….”

 

            6.  It is also found that by letter dated June 4, 2003 the respondent acknowledged receipt of the complainant’s May 29, 2003 letter and informed the complainant that a review of the “Central Office personnel file for Mr. Diaz” revealed two additional documents not previously provided to her.  The respondent enclosed the two documents and further informed the complainant that all documents contained in Mr Diaz’s Central Office personnel file, except for “records of teacher performance and evaluation”, had now been turned over to her.

 

            7.  Thereafter, the complainant, by letter dated June 4, 2003, and filed with the Commission on June 5, 2003, appealed, alleging that the respondent violated the Freedom of Information Act (“FOIA") by denying her a copy of former teacher, Mr. Ruben Diaz’s “personal file”.

 

8.  Section 1-210(a), G.S., provides, in relevant part:

 

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 (1) inspect such records promptly during regular office or business hours … or (3) receive a copy of such records in accordance with 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.   

            9.  Section 1-212(a), G.S., further provides, in relevant part: “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.” 

            10.  The respondent contends that he provided the complainant with all records contained in Mr. Diaz’s “personnel” file except one, for which the respondent claims an exemption pursuant to §10-151c, G.S.  The respondent’s position is that by providing the complainant with all non-exempt records contained in Mr. Diaz’s “personnel” file he has complied with the complainant’s request.  The complainant, on the other hand, contends that her request was for “personal” records of Mr. Diaz, which in her view is not limited to records physically kept in a “personnel” file, but rather, includes all records of a “personal” nature, pertaining to Mr. Diaz, including records of complaints, misconduct and discipline.  The respondent contends that the complainant did not request any other records but the “personnel” file records of Mr. Diaz and further that if the complainant wants records of complaints, misconduct and discipline then she needs to make a more specific request for such records. 

 

11.  It is found that the complainant’s initial request used the term “personal” file and not “personnel” file.  It is also found that it was the respondent, upon receipt of the request, who made a judgment and interpreted the request to mean “personnel” file and therefore, reviewed only that file in responding to the complainant’s request.  It is found that if the respondent was unclear what the complainant meant by “personal” file he could have clarified with the complainant exactly what she was looking for.  It is also found that although the complainant’s follow-up request, described in paragraph 5, above, used the term “personnel” file, the complainant did elaborate upon her request during her follow-up conversation with the respondent’s secretary, as described in paragraph 4, above. 

 

12.  It is also found that each time the respondent provided the complainant with records in connection with her request the complainant followed-up and indicated that she had not received all of the records she was seeking. 

 

13.  It is also found that it is not unusual that records of complaint, misconduct and discipline are typically the types of records found in an employee’s “personnel” file.  It is further found that an individual requesting records, and who is unfamiliar with precisely how an agency chooses to maintain and label its files, would not have specific knowledge that certain records, pertaining to an employee may be physically located in a file or files not labeled a “personnel” file.  Our Supreme Court has also made clear that: “[A]s a practical matter, the FOIA is used repeatedly by members of the public who are unschooled in technical, legalistic language distinctions. It would be unreasonable to deny a member of the public access to the FOIA simply because of arguable imperfections in the form in which a request for public records is couched.”  Perkins v. Freedom of Information Commission, 228 Conn. 158, 167 (1993).  The Supreme Court, in disagreeing with the trial court in Perkins, also said: “[T]he trial court's contrary conclusion relied on distinctions that are overly formal and legalistic in light of the public policy expressed by the FOIA. The overarching legislative policy of the FOIA is one that favors the open conduct of government and free public access to government records.  As we have repeatedly noted, our construction of the FOIA must be guided by the policy favoring disclosure . . . ."  Perkins at 166, 167 (without internal citations).

 

14.  It is concluded that a reasonable reading of the complainant’s May 23, 2003 request for Mr. Diaz’s “personal file” and “personal record”, coupled with her follow-up telephone call to the respondent’s office for records of complaint, suggests that the complainant’s request for records was not limited to records that are physically maintained in a file labeled “personnel” file, but rather that the complainant’s request was for records of a personal nature concerning Mr. Diaz, including complaints, misconduct and discipline.

 

15.  It is therefore, concluded that to the extent that the respondent maintains records of complaints, misconduct and discipline, concerning Mr. Diaz, such records are “public records” within the meaning of §1-210(a), G.S.

 

 16.  It is therefore, further concluded that to the extent that the respondent maintains records described in paragraph 15, above, and failed to provide the complainant with such records promptly, the respondent violated §1-210(a), G.S.

 

17.  With respect to the record being claimed as exempt pursuant to §10-151c, G.S., such provision 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.

            18.  The respondent provided the record at issue to the Commission for an in camera inspection.  Such record has been marked as IC #2003-211-1 for identification purposes.

            19.  After review of the record it is found that IC #2003-211-1 is a “public record” within the meaning of §1-210(a), G.S.

            20.  It is found that IC #2003-211-1 relates to specific incidents of Mr. Diaz’s personal conduct, commentary regarding such conduct by school district officials, disciplined imposed, and future discipline that may be imposed if the conduct is repeated. 

            21.  It is therefore found that IC #2003-211-1 is not a record of teacher performance and evaluation, within the meaning of §10-151c, G.S., but rather a record of misconduct and discipline.  

            22.  Consequently, it is concluded that IC #2003-211-1 is not exempt from disclosure pursuant to §10-151c, G.S., and therefore, the respondent violated §1-210(a), G.S., when he failed to provide the complainant with a copy of IC #2003-211-1, promptly.

            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 any and all records pertaining to complaints, misconduct and discipline concerning Mr. Ruben Diaz, maintained by Regional School District #8.  If the District does not have any such records the respondent shall so notify the complainant in writing.   

 

2.  The respondent shall forthwith provide the complainant with a copy of IC #2003-211-1.

                                               

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 10, 2004.

 

 

___________________________________

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:

 

Sharlene Radican

48 Roberts Road

Marlborough, CT  06447

 

Superintendent of Schools,

Regional School District # 8

c/o Colin M. Leonard, Esq.

Shipman & Goodwin

One American Row

Hartford, CT  06103-2819

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

FIC/2003-211/FD/abg/03/11/2004