FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as a contested case on July 28, 2005, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.   The respondent submitted the requested records for an 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 of complaint filed April 26, 2005, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with their request for public records.

 

3.   It is found that, by letter sent on or about March 17, 2005,  the complainants requested from the respondent all records of misconduct by Miguel Quinones, a teacher at Wright Vocational-Technical High School in Stamford, Connecticut.

 

4.  It is found that, on March 29, 2005, the respondent provided four records to the complainants, three with significant redactions that gave no indication of the nature of Mr. Quinones’ misconduct.

 

5.  It is found that, on April 4, 2005, the complainants requested any remaining records, including most of the redacted information, believing that only the names or any information identifying minors should be redacted.

 

6.  It is found that, on April 11, 2005, the respondent denied the complainants’ request for any additional records or any of the redacted information.

 

7.   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.

 

8.   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 (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.

 

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

 

10.  Section 10-151c, G.S., 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. For the purposes of this section, "teacher" includes 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.

 

            11.  It is found that the requested records, submitted for in camera inspection, consist of:

a.       A March 5, 2003 letter to Mr. Quinones;

b.      A Department of Children and Families (“DCF”) report form;

c.       A State Police signed witness statement;

d.      A State Police interview report;

e.       A DCF Notification of Investigation;

f.        A DCF report;

g.       A September 9, 2004 letter to Mr. Quinones; and

h.       A June 15, 2004 memorandum to Mr. Quinones.

 

            12.  It is found that the requested records are records of a teacher’s personal misconduct within the meaning of §10-151c, G.S.

 

            13.  It is concluded that the requested records are public records within the meaning of §§1-200(5), 1-210(a),1-212(a) and 10-151c, G.S.

           

14.  Neither the respondent nor Mr. Quinones contend that the records described in paragraph 11 of the findings, above are personnel or similar files within the meaning of §1-210(b)(2), G.S.

 

15.  The respondent contends that the records are exempt from disclosure pursuant to §§1-210(b)(11), 1-210(b)(17), G.S.,  and 17a-101k, G.S.

 

16.  The complainant contends that the records are required to be disclosed pursuant to §10-151c, G.S.

 

17.  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.

 

18.  Section 1-210(b)(17), G.S., provides that disclosure is not required of “Educational records which are not subject to disclosure under the Family Educational Rights and Privacy Act, 20 USC 1232g.” 

 

            19.  Section 1232g(b)(1) of Title 20 provides that, with certain exceptions:

 

No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a) of this section) of students without the written consent of their parents to any individual, agency, or organization ….

 

            20.  The regulation at 34 CFR §99.3 defines “personally identifiable information” to include, but not be limited to:

 

a.       The student’s name;

b.      The name of the student’s parent or other family member;

c.       The address of the student or student’s family;

d.      A personal identifier, such as the student’s social security number or student number;

e.       A list of personal characteristics that would make the student’s identity easily traceable; or

f.        Other information that would make the student’s identity easily traceable.

 

21.  With respect to the respondent’s contention that the requested records are permissibly exempt from disclosure pursuant to §§1-210(b)(11) and (17), G.S., it is found that the nondisclosure provisions of both statutes may be met by the redaction of the names and personally identifiable information of the students named or identified in the requested records, and that the complainants have not sought the release of such information.

 

22.  It is therefore concluded that the application of §§1-210(b)(11) and (17), G.S., is not at issue in this case.

 

23. Section 17a-101k, G.S., provides:

 

The Commissioner of Children and Families shall maintain a registry of the reports received pursuant to sections 17a-101a to 17a-101d, inclusive, and 17a-103, and shall adopt regulations to implement the provisions of this section, including the use of the registry on a twenty-four-hour daily basis to prevent or discover abuse of children and the establishment of a hearing process for any appeal by a person of the commissioner's determination that such person is responsible for the abuse or neglect of a child pursuant to subsection (b) of section 17a-101g. The information contained in the reports and any other information relative to child abuse, wherever located, shall be confidential subject to such statutes and regulations governing their use and access as shall conform to the requirements of federal law or regulations. Any violation of this section or the regulations adopted by the commissioner under this section shall be punishable by a fine of not more than one thousand dollars or imprisonment for not more than one year.

 

24.  The federal Child Abuse Prevention and Treatment Act provides that, in order to receive grants for child abuse and neglect prevention and treatment programs, a state must have in effect a law that includes “methods to preserve the confidentiality of all records in order to protect the rights of the child and of the child’s parents or guardians.”  42 U.S.C. §5106a(b)(2)(A)(v). 

 

25.  The Commission has previously concluded that the confidentiality provisions of 42 U.S.C. §5106a(b)(2)(A)(v) and §17a-101k(a), G.S., are clearly designed to protect the interests of the child.  See Docket #FIC 1998-384, Kathryn P. Sullivan v. Police Department, Town of Groton (Final Decision Upon Remand dated February 9, 2005), reversed on other grounds, Town of Groton Police Department v. FOIC et al., Docket No. HHB-CV05-4004903-S, Superior Court, J.D. of New Britain, Memorandum of Decision dated January 30, 2006 (Pinkus, J.).

 

26.  The statutory conflict between the respondent’s contention that the requested records are exempt from disclosure pursuant to §17a-101k, G.S., as records of child abuse, and the complainants’ contention that the requested records are required to be disclosed pursuant to §10-151c, G.S., as records of teacher misconduct, presents an issue of first impression to the Commission.

 

27.  Since the plain language of each statute applies to the records sought by the complainants, the Commission looks to the legislative intent of the two apparently conflicting statutes.

 

28.  In Carpenter v. FOIC, 59 Conn. App. 20 (2000), cert. denied 254 Conn. 933 (2000), the Appellate Court held that a record of a specific incident of personal misconduct that exposed a child to noninstructional, sexually explicit material within the classroom and that resulted in discipline was not a record of teacher performance and evaluation within the meaning of §10-151c. 

 

29.  After that decision, in 2002 the General Assembly enacted P.A. 02-138, An Act Concerning Penalties For Sexual Assault Of A Minor, Civil And Criminal Statutes Of Limitations In Sexual Assault Cases, Reporting And Investigation Of Child Abuse And Neglect, Disclosure Of Records Of Teacher Misconduct And Establishment Of Sexual Offender Risk Assessment Boards.  Section 20 of P.A. 02-138 amended §10-151c, to add the following sentence, consistent with the interpretation given the statute by the Appellate Court in Carpenter, above: 

 

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.

 

30.  During the debate on the floor of the House of Representatives on May 2, 2002, Rep. Cafero explained the background of §20 of P.A. 02-138:

 

    There is a narrow exception for teachers. This particular provision in the bill that's before us, takes out of that exemption a very small piece known as "[personal] misconduct".  So to answer your question, if a member of the public chose to go into a building and request the personal misconduct record of a particular teacher, they would, should this bill pass, have the right to receive that under FOI, where currently they would not and if I may, Madam Speaker, this came about as a result of the Southington coaches' cases. As you all might be aware, coaches in Southington, coaching at least several sports, I think possibly soccer and there are others in this Chamber that are more aware of the actual case, but were accused of inappropriate sexual conduct with some of the people they coached.

    An investigation was made by the Southington Police force and one of their first stops was to the Board of Education to see whether or not these teacher/coaches, if you will, had anything in their personnel record that would indicate that they had been suspected of, accused of, involved with any sort of inappropriate sexual contact with their students or the children that they coached.

 

31.  Additional remarks by Rep. Cafero confirm that the General Assembly sought, among other things, to require the disclosure of teacher misconduct that did not rise to the level of sexual abuse:

If, for the sake of argument, a teacher had an incident of inappropriate touching of a student or perhaps inappropriate language used in front of a student, or suggestive language, etcetera, though it might not be in particular violation of any criminal act, they might have been reprimanded by their supervisor, it might have been placed in their record.

Those are the kinds of incidents of personal misconduct that are not related to professional capabilities, but personal misconduct that would be exempted from the FOI exemption, if you will, that currently pertains to teachers' records. ….

House proceedings, May 2, 2002.

 

32.  It is concluded that §10-151c, G.S., as amended, was explicitly intended to require disclosure of teacher misconduct that includes information relative to child abuse within the meaning of §17a-101k, G.S.

 

33.  It is also concluded that the intent of §10-151c, G.S., would be thwarted by applying §17a-101k to require so much redaction of the records that the nature of the offense for which the teacher was disciplined is entirely redacted.

 

34.  Rather, the Commission, in its attempt to reconcile the provisions of §10-151c, G.S., and 17a-101k, G.S., is guided by the Supreme Court:

 

  "[W]e are guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law . . . . Legislation never is written on a clean slate, nor is it ever read in isolation or applied in a vacuum. Every new act takes its place as a component of an extensive and elaborate system of written laws. . . . Construing statutes by reference to others advances [the values of harmony and consistency within the law]. In fact, courts have been said to be under a duty to construe statutes harmoniously where that can reasonably be done. . . . Accordingly, [i]f two statutes appear to be in conflict but can be construed as consistent with each other, then the court should give effect to both." (Citations omitted; internal quotation marks omitted.) Nizzardo v. State Traffic Commission, 259 Conn. 131, 157, 788 A.2d 1158 (2002).

 

35.  It is concluded that the intent of §17a-101k, G.S., to protect the confidentiality of victims of sexual abuse is satisfied in this case by redacting the names of students and any information identifying students in the requested records.

 

36.  It is therefore concluded that the respondent violated the provisions of §§1-210(a) and 1-212(a), G.S., by redacting so much information from the requested records that the nature of the misconduct for which the teacher was disciplined could not be discerned. 

 

           

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 complainants with a copy of the records, as described in paragraph 11 of the findings, above.

 

2.  In complying with paragraph 1 of the order, above, the respondent shall redact the names of students and any information identifying students.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 8, 2006.

 

________________________________

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:

 

Matthew Malone and

The Stamford Advocate

75 Tresser Boulevard

Stamford, CT 06904

 

Commissioner, State of Connecticut,

Department of Education,

Technical High School System

c/o M.J. McCarthy, Esq.

Assistant Attorney General

PO Box 120

55 Elm Street

Hartford, CT 06141-0120

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-181FD/paj/3/14/2006