FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on September 29, 2003, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The case was consolidated for the purposes of hearing with Docket #FIC 2003-198, Lee Smith v. Superintendent of Schools, Middletown Public Schools.  The respondent submitted the correspondence and an unredacted copy of the memorandum referenced in paragraphs 4 and 5 of the findings, below, for in camera inspection.

 

            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 received and filed May 5, 2003, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by not fully complying with his request for copies of records of a bullying complaint.

 

            3.  It is found that by letter dated April 8, 2003 the complainant requested “all materials, written statements and interviews for the report on a complaint of alleged school bullying at Moody Elementary school pertaining to [his] daughter,” who was alleged by the complainant and his wife to be the victim of school bullying.

 

4.  It is found that the respondent promptly provided a copy of the investigation report itself concerning the alleged bullying, and a redacted memorandum dated February 26, 2003 concerning the Smith’s daughter and her interactions with another student.

 

            5.  It is found that the respondent declined to provide notes of his interviews with witnesses, correspondence from two other parents that contain personally identifiable student information about other students, and an unredacted version of the memorandum concerning the Smith’s daughter.  It is found that the respondent has no other records responsive to the complainant’s request.

 

6.  Section 1-200(5), G.S., provides:

 

“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

7.  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, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

 

8.  It is concluded that the notes, the correspondence from the other two parents, and the unredacted memorandum are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

9.  The respondent maintains that the notes are permissibly exempt from disclosure pursuant to §1-210(b)(1), G.S., which provides:

 

Nothing in the Freedom of Information 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.  It is found that the respondent used the notes he took during interviews as a personal memory aid, did not share them with others but retained them in his sole possession, and used them in the preparation of the investigation report.

 

11.  It is concluded that the notes of the respondent’s interviews with witnesses are preliminary drafts or notes within the meaning of §1-210(b)(1), G.S.

 

12.  It is also found that the respondent determined in good faith that the public interest in withholding such documents clearly outweighs the public interest in disclosure.

 

13. It is therefore concluded that the respondent did not violate §1-210(a), G.S., by declining to provide copies of his notes of witness interviews to the complainant.

 

            14.  It is found that the unredacted version of the February 26, 2003 memorandum described in paragraph 4, above (in camera record 2003-168-1), contains the names of students, and information that identifies students.

 

15.    Section 1-210(b)(11), G.S., provides that disclosure is not required of:

 

Names or addresses of students enrolled in any public school or college without the consent of each student whose name or address is to be disclosed who is eighteen years of age or older and a parent or guardian of each such student who is younger than eighteen years of age, provided this subdivision shall not be construed as prohibiting the disclosure of the names or addresses of students enrolled in any public school in a regional school district to the board of selectmen or town board of finance, as the case may be, of the town wherein the student resides for the purpose of verifying tuition payments made to such school.

 

            16.  The Commission has in the past concluded that §1-210(b)(11), G.S., shields not only the names of students, but information that could identify them.  See, for example, Docket #FIC 2002-206, Matthew Paulsen v. Bethel Public Schools et al.

 

            17.  It is found that the information redacted from the copy of the memorandum that was provided to the complainant names a student, and also identifies that student by describing the student’s family situation and classroom behavior.

 

            18.  It is found that the redacted version of the memorandum also contains the names of two students, and some information that identifies them.

 

            19.  The complainant maintains that it was inconsistent for the respondent to redact some names and identifying information, but not all names and identifying information.

 

            20.  It is concluded that the exemption to disclosure in §1-210(11), G.S., is permissive, not mandatory, and that therefore the respondent may exercise some discretion when redacting (or not redacting) students’ names and identifying information.

 

            21.  It is therefore concluded that the respondent did not violate §1-210(a), G.S., by redacting some, but not all, of the names and identifying information from the memorandum provided to the complainants.

 

            22.   It is found that the correspondence from other parents contains information that names, or that may identify, individual students.

 

            23.  It is also found, however, that the names and identifying information may be redacted from the correspondence while still leaving meaningful information.

 

24.  Specifically, it is found that in camera documents 2003-168-2 and 2003-168-3 comprise February 3, 2003 correspondence from a parent to the school relating to the complainant’s bullying complaint.

 

25.  It is found that students are named throughout the two pages.

 

26.  It is found that the parent’s signature may be found at the conclusion of the correspondence, at line 76.

 

27.  It is found that the first paragraph of page 2003-168-3 in its entirety, at lines 38 through 44, contains information that could identify a student.

 

28.  It is found that the sixth sentence in the second paragraph of page 2003-168-3, at lines 50 through 52, contains information that could identify a student.

 

29.  It is found that the last two sentences of the fourth paragraph of page 2003-168-2, at lines 18 through 20, contain information that could identify a student.

 

30.  It is found that the remainder of the information contained in the February 3, 2003 correspondence does not name or identify a student.

 

31.  It is concluded that the respondent violated §1-210(a), G.S., by not disclosing a copy of the February 3, 2003 correspondence with the information described in paragraphs 25 through 29, above, redacted.

 

32. It is found that in camera record 2003-168-4 is February 5, 2003 correspondence from a parent to the school regarding, in part, the complainant’s bullying complaint.

 

33.  It is found that a student is named throughout the correspondence

 

34.  It is found that the sentence at lines 6 and 7 could identify a student.

 

35.  It is found that the sentence at lines 9 through 11 could identify a student’s parent, and therefore, a student.

 

36.  It is found that a parent’s name, at lines 15 and 16, could identify a student.

 

37.  It is found that the remainder of the information contained in the February 5, 2003 correspondence does not name or identify a student.

 

38.  It is concluded that the respondent violated §1-210(a), G.S., by not disclosing a copy of the February 5, 2003 correspondence with the information described in paragraphs 33 through 36, above, redacted.

 

39.  It is found that in camera record 2003-168-5 is February 11, 2003 correspondence from a parent to the school, regarding, in part, the complainant’s bullying complaint. 

 

40.  It is found that the name of a student is contained throughout the record.

 

41.  It is found that the name of a parent is contained at line 30 of the record.

 

42.  It is found that the remainder of the information contained in the February 11, 2003 correspondence does not name or identify a student.

 

43.  It is concluded that the respondent violated §1-210(11), G.S., by not disclosing a copy of the February 11, 2003 correspondence with the information described in paragraphs 40 and 41, above, redacted.

 

44.  It is found that in camera record 2003-168-6 is undated correspondence from a parent to the school.

 

45.  It is found that a parent’s name is contained at lines 2, 24, 26 and 27.

 

46.  It is found that a student’s name is contained at line 12.

 

47.  It is found that three parents’ telephone numbers are found at lines 23 and 24.

 

48.  It is found that the remainder of the information contained in in camera record 2003-168-6 does not name or identify a student.

 

49.  It is concluded that the respondent violated §1-210(a), G.S., by not disclosing a copy of in camera record 2003-168-6 with the information described in paragraphs 45 through 47, above, redacted.

 

50.  The Commission recognizes that much of the complainant’s concern in this matter stems from his desire to protect his daughter from school bullying, and his dissatisfaction with the investigation and report made by the respondent.  However, the Commission is clearly without jurisdiction to address these underlying matters, and nothing in this decision should be construed to comment on the respondent’s investigation or any other matters beyond the scope of this particular complaint.

 

 

 

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

 

            1.  The respondent shall forthwith provide the complainant with a copy of the in camera records 2003-168-2 through 2003-168-6.  In providing those records, the respondent may redact the information described in paragraphs 25 through 29, 33 through 36, 40 and 41, and 45 through 47 of the findings, above.  The respondent may also redact the text starting with the first comma in line 17 and ending with the second period in line 18 of in camera record 2003-168-6.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 14, 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:

 

Lee B. Smith

17 Afton Terrace

Middletown, CT  06457-1620

 

Assistant Superintendent,

Middletown Public Schools

c/o Thomas B. Mooney, Esq.

Shipman & Goodwin LLP

One American Row

Hartford, CT  06103-2819

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

FIC/2003-168/FD/abg/04/19/2004