FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on September 12, 2006, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  A report of hearing officer was issued on September 15, 2006.  At the October 25, 2006 meeting of the Freedom of Information Commission, the Commission unanimously voted to remand this matter to the hearing officer.

 

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 June 6, 2006 to the respondent, the complainants requested access to inspect the oral interview scoring sheets for firefighter applicants (hereinafter “requested records”).

 

3.      It is found that by letter dated June 7, 2006, the respondent, through counsel, informed the complainants that the oral interview scoring sheets for firefighter applicants were exempt from mandatory disclosure pursuant to §1-210(b)(6), G.S., and that their request was denied.

 

4.      By letter dated and filed on June 7, 2006, the complainants appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with their request.

 

5.      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 . . . inspect such records promptly during regular office or business hours . . . .

 

6.      It is concluded that the requested records are public records within the meaning of §1-210(a), G.S.

 

7.      It is found that the requested records are forms used by the interview panel during the interviews of applicants, which forms list the names of fifteen to twenty applicants, depending on the number of applicants interviewed on a particular day during the three months in which such interviews were conducted.  It is found that each member of the respondent had a scoring sheet for each day of interviews and wrote a score, which ranged from zero to ten, on a line next to the applicant’s name.

 

8.      At the hearing on this matter, the complainants contended that the respondent’s hiring practice had become a major concern during that last year when it hired relatives of members of the respondent, and other town officials, and when other applicants, who scored high on the written exam, began to complain when they were not hired.  The complainants also contended that the respondent amended its hiring process to include an oral exam, the results of which, according to their information, are determinative of who was hired.  The complainants contended that under the circumstances, disclosure of the requested records is in the public’s interest because review of the requested records is the only way to determine if the best qualified and highest scoring applicants were hired and to determine if the respondent’s hiring process was fair.  The complainant also contended that it was unreasonable for the respondent to withhold the requested records when they had already provided her with the written exam scores of the applicants. 

 

9.       At the hearing on this matter, the respondent contended that the requested records are examination data within the meaning of §1-210(b)(6), G.S., and are exempt from mandatory disclosure.   The respondent referred to this Commission’s decisions in Docket #FIC 2000-501, Randal Edgar et al. v. Waterbury Superintendent of Schools  and Docket #FIC 2003-377, Joseph R. Casey, Jr. v. Commissioner, State of Connecticut, Department of Correction and contended that the law is clear with respect to the application of §1-210(b)(6), G.S., to the requested records.  The respondent also contended that while the complainants were provided with records related to the written examination, that does not preclude the respondent from claiming an applicable exemption with respect to records related to the oral examination.

 

10.    Section 1-210(b)(6), G.S., provides in relevant part that nothing in the FOI Act shall require the disclosure of “test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examinations . . . .”

 

11.  In Washington v. FOIC, 25 Conn. L. Rptr. 334 (1999), the Superior Court concluded that, “[b]ased on the testimony at the FOIC hearing,” oral board panelists’ scoring sheets were “the equivalent of a scoring key” which is specifically exempted from disclosure under §1-210(b)(6), G.S.

12.  The Commission has previously interpreted Washington to mean that certain oral interview scoring sheets were exempt from disclosure pursuant to §1-210(b)(6), G.S.  See Docket #FIC 2000-501, Randal Edgar et al. v. Waterbury Superintendent of Schools (scores assigned by interviewers to each candidate for the position of superintendent of schools constitute examination data used to administer an examination for employment within the meaning of §1-210(b)(6), G.S., and Washington v. FOIC);  Docket #FIC 2003-377, Casey v. Department of Correction (forms containing questions asked by the interview panel, candidates’ responses, ratings given by the interview panel members and any comments made by such members constituted test questions, scoring keys and other examination data used to administer an examination for employment within the meaning of §1-210(b)(6), G.S., and Washington v. FOIC); Docket #FIC 2001-006, Murray v. Hartford Personnel Director (scoring sheets of each of oral board panelist for each candidate constitute examination data within the meaning of §1-210(b)(6), G.S., and Washington v. FOIC); Docket #FIC 2000-649, Scharf v. Ridgefield Police Commission (the numerical score given to each candidate by each panelist for every question asked constitute examination data used to administer an examination for employment within the meaning of §1-210(b)(6), G.S.).  The Commission has reviewed these cases and determined that they are distinguishable from this case.

            13.  However, in none of the cases described in paragraph 12, above, is it apparent that the Commission made factual findings regarding the specific nature of the interview scoring sheets, or determined whether or not the particular interview scoring sheets at issue were “the equivalent of a scoring key,” within the meaning of Washington and §1-210(b)(6), G.S.

14.  The Commission, relying on its own knowledge and experience, takes administrative notice of the fact that a scoring key typically indicates the correct answers to an examination, the number of points to be awarded for correct answers, and information of that nature.  For example, in a multiple-choice examination, the scoring sheet indicates which choice was correct for each question, and the number of points to be awarded for a correct answer.  In another type of examination, a scoring key might indicate which concepts or issues must be identified for credit on the answer, and how many points to assign to particular responses.  A scoring key in an essay examination might assign particular points earned for correct grammar, organization, spelling, and so forth.  On an oral examination, a scoring key might assign points earned for clarity, for correctness of particular responses, for the ability to orally articulate an answer, and so forth.

            15.  The Commission further takes administrative notice of the fact that the actual score received by a candidate on an oral examination question is a result of applying a scoring key to the candidate’s actual response.  The Commission further takes administrative notice of the fact that while the scoring key that is applied to a candidate’s response may be “data used to administer” an examination, the result of that application, that is, the score itself, is not “data used to administer” an examination, but rather data resulting from the administration of an examination.

            16.  The Commission concludes that no public policy purpose is advanced by withholding from disclosure the final scores of applicants on an oral interview examination.  To the contrary, withholding such scores can only cast doubt on the very legitimacy of the examination.  The Commission has consistently concluded that the rankings of candidates on employment examinations are not exempt from disclosure.  See, e.g., Docket #FIC 1988-148, Barton v. Commissioner and Personnel Administrator of the State of Connecticut, Department of Public Works; Docket #FIC 1995-122, Brow v. Serra, and Docket #FIC 2000-501, Randal Edgar et al. v. Waterbury Superintendent of Schools.  To require an agency to disclose the rankings of candidates, but permit it to withhold the candidate’s scores, is to obscure from public view the very basis for the agency’s final rankings.     

17.  It is therefore concluded that the requested oral board panelist’s scoring sheet is not a scoring key within the meaning of §1-210(b)(6), G.S.

18.  It is found that the respondent failed to prove that the requested oral interview scoring sheets were the equivalent of a scoring key, within the meaning of §1-210(b)(6), G.S.

19.  It is also found that the requested records are not even the applicants’ scores on individual questions.  Rather, the records simply record the final score assigned to applicants on the entirety of the oral examination, and contain no information concerning any scoring key used to compute those scores, or any other data “used to administer” the examination.

            20.  It is therefore concluded that the requested oral interview scoring sheets are not permissibly exempt from disclosure pursuant to §1-210(b)(6), G.S.

21.  It is concluded therefore that the respondent violated the disclosure provisions of §1-210(b), G.S., by failing to comply with the complainants’ request. 

 

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 access to inspect the oral interview scoring sheets for firefighter applicants, as described in paragraph 7 of the findings, above.

2.      Henceforth, the respondent shall strictly comply with the disclosure provisions of §1-210(b), G.S.

 

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

 

Donna Porstner and the Stamford Advocate

c/o Karen Kaiser, Esq.

Tribune Company Law Department

220 East 42^nd Street, Suite 400

New York, NY 10017

 

Fire Commission,

City of Stamford

c/o Michael Toma, Esq.

City of Stamford Corporation Counsel

888 Washington Boulevard

Stamford, CT 06904

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2006-291FD/paj/11/14/2006