FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
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William T. George, |
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| Complainant | |||
| against | Docket #FIC 2006-256 | ||
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State of Connecticut, Human Resources Department, Southern Connecticut State University; Connecticut State University, American Association of University Professors, |
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| Respondents | March 28, 2007 | ||
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent State of Connecticut, Human Resources Department,
Southern Connecticut State University (the “respondent university”) is a public agency within the meaning of §1-200(1), G.S.
2. By letter dated April 19, 2006, the complainant requested copies of thirteen categories of records that concerned eleven named teachers at the respondent university, advertisements for the positions held by these teachers, as well as the names and resumes of all applicants for the positions held by eight of the teachers for the semesters from fall 2004 through fall 2006 (the “requested records”).
3. By letter dated May 20, 2006, but filed with the Commission on May 19, 2006, the complainant appealed to the Commission, alleging that he had “not received any of the information [I] requested” and that the respondent university thereby violated the Freedom of Information Act.
4. Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:
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.
…
Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. (emphasis added)
5. Section 5-278, G.S., provides in relevant parts:
(b) Any [collective bargaining] agreement… shall be reduced to writing….The agreement, together with a request for …approval of any provisions of the agreement which are in conflict with any statute or any regulation of any state agency….shall be filed …with the clerks of the House of Representatives and the Senate…Once approved by the General Assembly, any provision of an agreement or award need not be resubmitted by the parties to such agreement or award as part of a future contract approval process unless changes in the language of such provision are negotiated by such parties.
….
(e) Where there is a conflict between any agreement or arbitration award approved in accordance with the provisions of sections 5-270 to 5-280, inclusive, on matters appropriate to collective bargaining…and any general statute or special act, or regulations adopted by a state agency, the terms of such agreement or arbitration award shall prevail… (emphasis added.)
6. It is found that the Connecticut State University, American Association of University Professors and the Board of Trustees for the Connecticut State University System entered into a collective bargaining agreement, effective August 23, 2002, and that in 2003, the agreement was extended to be effective until August 24, 2007 (the agreement, sometimes with the extension, being the “collective bargaining agreement” or sometimes the “agreement”).
7. Section 4.14.2.10 of the collective bargaining agreement provides:
The entire contents of personnel files shall be considered private
and may not be opened to any outside scrutiny except when ordered by a court of law. When a file is requested by an outside party for any reason, the affected member shall be promptly notified and provided with a copy of the request and reason therefore. (emphasis added.)
8. Section 4.14.1 of the collective bargaining agreement describes a personnel file in the following manner:
Each university shall maintain one (1) confidential and complete official personnel file for each member….Files shall contain the following: application for employment and supporting documentation; recommendations on appointment, tenure, renewal, promotion, and leaves; evaluation and assessment documents; payroll records; disciplinary actions; correspondence between the President and other administrators and the member concerning the member’s employment at the University; all other relevant personnel actions; and any statement that the member wishes to enter in response to or in elaboration of any other item in the file.
9. At the October 10, 2006 hearing, the respondents contended that the requested records, with three exceptions, were exempt from mandatory disclosure pursuant to the “supersedence” provisions of §§5-270 to 5-280, G.S., and also pursuant to the provisions of §10a-154a, G.S. The three exceptions were records that were not the “contents of personnel files”: a) the advertisements for teachers of English 111 and 112 for the semesters from the fall 2004 through the fall 2006; b) the names and resumes for applicants not hired as teachers for these courses during the same period of time; and c) “correspondence between the Dean of Arts and Sciences, the Chairman of the English Department and the Department of Higher Education pertaining to the English Department Graduate Teaching Assistant program from 2000 to [April 19, 2006]”.
10. It is found that on April 4, 2002 the Chancellor of the Connecticut State University System transmitted the collective bargaining agreement to the Clerks of the State House of Representatives and the State Senate for legislative approval. The transmittal referenced Article 4.14.2.10 of the agreement, described such provision as “provid[ing] certain limitations on access to personnel files and medical records,” and stated that the state statutes superseded are: “1-206(b)(1), 1-210, 1-211, 1-212 & 1-214(b) & (c) CGS”.
11. It is also found that the State House of Representatives and the State Senate approved the collective bargaining agreement in accordance with the “supersedence” provisions of §§5-270 to 5-280, G.S., on May 8, 2002 and April 30, 2002, respectively.
12. It is further found that no advertisements were kept on file by the respondent university for teachers of English 111 and 112 during the relevant time period, because the positions were not advertised. It is also found, based on a diligent search, that there was no correspondence between the Dean of Arts and Sciences, the Chairman of the English Department and the Department of Higher Education pertaining to the English Department Graduate Teaching Assistant program from 2000 to April 19, 2006.
13. Finally, it is found that the respondent university does maintain some resumes for applicants not hired to be teachers of English 111 and 112 for the semesters from fall 2004 through fall 2006.
14. It is concluded that the requested records, to the extent maintained by the respondent university, are public records within the meaning of §§1-200(5) and 1-210(a), G.S.
15. It is concluded that all requested records, except for the three items described at paragraph 9.a, 9.b, and 9.c, above, are the “contents of personnel files”, as that term is used in Section 4.14.2.10 of the collective bargaining agreement and described in Section 4.14.1 of the collective bargaining agreement.
16. It is concluded that, pursuant to §5-278, G.S., a term of a collective bargaining agreement may supersede a statute, provided that the appropriate statutory procedure has been followed. Absent such procedure, the conflicting term is a nullity. Connecticut State College American Ass'n of University Professors v. Connecticut State Bd. of Labor Relations, 197 Conn. 91, 98-99 (1985). The Commission has previously recognized this principle in Docket #FIC 1999-502, Christopher Hofffman and New Haven Register v. Director of Personnel, State of Connecticut, Southern Connecticut State University; and Personnel Office, State of Connecticut, Southern Connecticut State University. Most importantly, the Connecticut Supreme Court very recently reaffirmed the principle in Cox v. Aiken, 278 Conn. 204, 216 (2006). The Supreme Court also added: “once the legislature has approved a collective bargaining provision that conflicts with a statute or regulation, that approval remains effective with respect to future agreements between the state and a particular bargaining unit, and the conflicting provision need not be resubmitted for approval”. Id. at 216-217. See §5-278(b), G.S., at paragraph 5, above; but also see Lieberman v. State Board of Labor Relations, 216 Conn. 253 (1990).
17. It is concluded, based on the facts of this case, that the collective bargaining agreement supercedes the FOIA provisions concerning records, and that the collective bargaining agreement requires that the “contents of personnel files shall be…private”.
18. As a result of the conclusion at paragraph 17, above, the Commission finds it unnecessary to adjudicate the respondent’s alternate claim of exemption pursuant to §10a-154a, G.S. (see paragraph 9, above).
19. It is therefore concluded that the requested records maintained by the respondent university are not subject to mandatory disclosure, except for the names and resumes of applicants not hired as teachers for English 111 and 112 for the semesters from the fall 2004 through the fall 2006. However, the names and resumes for applicants not hired as teachers for English 111 and 112 for the semesters from the fall 2004 through the fall 2006 are subject to mandatory disclosure, and the respondent university violated the requirements of §§1-210(a) and 1-212(a), G.S., when it declined to provide these records.
The following order by the Commission is hereby recommended on the basis of
the record concerning the above-captioned complaint:
1. The respondent university shall forthwith provide the complainant with the names and resumes for applicants not hired as teachers for English 111 and 112 for the semesters from the fall 2004 through the fall 2006.
Approved by Order of the Freedom of Information Commission at its regular meeting of March 28, 2007.
________________________________
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:
State of Connecticut, Human Resources Department,
Southern Connecticut State University
c/o Craig W. Patenaude, Esq.
Southern Connecticut State University
501 Crescent Street
New Haven, CT 06515-1355
Connecticut State University, American Association
of University Professors
c/o Mary E. Kelly, Esq.
557 Prospect Avenue
Hartford, CT 06105-2922
___________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2006-256FD/paj/4/3/2007