FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on March 7, 2007, at which time the complainant and respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. 

 

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 October 23, 2006, the complainant made a request to the respondent for a copy of the following:

 

a.       letters sent, pursuant to the collective bargaining agreement, to certain adjunct faculty of Southern Connecticut State University requesting authorization to disclose certain records maintained in each faculty member’s personnel file which included their peer and student evaluations during certain specified semesters;

 

b.      the letters, received by the respondent, in response to the letter described in paragraph 2a, above; and

 

c.       the names and resumes of all applicants who applied to teach English 110, 111, 112 for the 2005 through the fall 2006 semesters.

 

3.      By letter dated and filed on November 14, 2006, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with his request.

 

4.      By letter dated January 17, 2007, the respondent provided the complainant with a copy of the requested records described in paragraph 2a and 2b, above, and informed the complainant that not all adjunct professors to whom letters were sent responded.  It is found that the respondent also informed the complainant that his request described in paragraph 2c, above, was the subject of three other complaints heard by the FOI Commission and that the records would not be disclosed unless the FOI Commission issued an order for their disclosure.

 

5.      At the hearing on this matter, the complainant contended that while the respondent complied with his request:

 

a.       the respondent delayed issuing the letters described in paragraph 2a, above;

 

b.      the form of the letter described in paragraph 2a, above, encourages professors to object to the disclosure of the requested records;

 

c.       he should have been provided with the records of those professors who failed to respond and who failed to respond within four business days; and

 

d.      he should have been provided with the records described in paragraph 2c, above.

 

6.      The Commission takes administrative notice of its final decision in Docket #FIC 2006-256 William T. George v. State of Connecticut, Human Resources Department, Southern Connecticut State University, which decision was issued after the hearing in this matter.  The Commission takes specific notice of paragraphs 6, 15, 16, 17 and 19 in which the Commission made the following finding and conclusions:

 

6.   found that 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;

 

15.  concluded that the records described in paragraph 2c, 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.  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.  concluded that the collective bargaining agreement supercedes the FOI Act provisions concerning the requested records, and that the collective bargaining agreement requires that the “contents of personnel files shall be…private;” and

 

19. therefore, concluded that the requested records maintained by the respondent university are not subject to mandatory disclosure.

 

7.      With respect to the complainant’s contention described in paragraph 5a, 5b and 5c, above, it is found that the letters described in paragraph 2a, above, were sent pursuant to the collective bargaining agreement between the Connecticut State University, American Association of University Professors and the Board of Trustees for the Connecticut State University System and not pursuant to §1-214(b), G.S.

 

8.      Consequently, it is found that the complainant’s contentions described in paragraph 5a, 5b and 5c, above, do not allege violations of the FOI Act and therefore, they will not be addressed herein.

 

9.      It is found that the records described in paragraph 2c, above, are personnel records of faculty members of Southern Connecticut State University.

 

10.   It is found that the Commission has already addressed the disclosure of personnel records of the faculty of Southern Connecticut State University in Docket #FIC 2006-256 William T. George v. State of Connecticut, Human Resources Department, Southern Connecticut State University, and therefore it is unnecessary to address that issue, or the complainant’s contentions described in paragraph 5d, above, herein.

 

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

 

1.      The complaint is hereby dismissed.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 24, 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:

 

William George

711 Wadsworth Street

Middletown, CT 06457

           

State of Connecticut, Southern

Connecticut State University,

Human Resources Department

501 Crescent Street

New Haven, CT 06515-1355

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-606FD/paj/10/29/2007