FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above captioned matter was heard as a contested case on March 11, 2008, with an original caption of William T. George v. State of Connecticut, Human Resources Department, Southern Connecticut State University. After the hearing, the caption was amended as shown above and another hearing was held on May 20, 2008. At each hearing, the complainant and counsel for Southern Connecticut State University (the “University”) appeared, stipulated to certain exhibits, and presented testimony and argument on the complaint. At the May 20, 2008 hearing, the respondent shown above personally appeared, represented by counsel for the University.

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

            1.  The respondent State of Connecticut, Robert McEachern, Chairman, English Department, Southern Connecticut State University, is a public agency within the meaning of §1-200(1), G.S.

 

            2.  By letter dated and filed with the Commission on November 5, 2007, the complainant appealed to the Commission, alleging that Southern Connecticut State University had not complied with the orders in Docket #FIC 2006-256; William T. George v. State of Connecticut, Human Resources Department, Southern Connecticut State University; Connecticut State University, American Association of University Professors. (The State of Connecticut, Human Resources Department, Southern Connecticut State University is hereinafter referred to as the “University respondent”).  At the March 11, 2008 hearing, based upon discussion by the hearing officer, the complainant added a request that a civil penalty be assessed against the respondent in the present docket.

 

 

3.  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. (emphasis added) 

 

…

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. (emphasis added) 

 

4.  The Commission takes administrative notice of the final decision in contested case Docket #FIC 2006-256; William T. George v. State of Connecticut, Human Resources Department, Southern Connecticut State University; Connecticut State University, American Association of University Professors. At paragraph 13, the decision found that the University respondent did maintain some resumes for applicants not hired to be teachers of English 111 and 112 for the semesters from fall 2004 through fall 2006 (the “requested records”). The decision also ordered that the University respondent forthwith provide the complainant with these names and resumes.

 

5.  It is found that Docket #FIC 2006-256; William T. George v. State of Connecticut, Human Resources Department, Southern Connecticut State University; Connecticut State University, American Association of University Professors, involved thirteen categories of records that concerned eleven named teachers at the University respondent; 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. In Docket #FIC 2006-256, there was sworn testimony from the University’s counsel that appeared to state that the respondent in that case did have some resumes for applicants not hired to be teachers of English 111 and 112 for the semesters from fall 2004 through fall 2006.

 

6.  It is found that Kelly Ritter was the Composition Coordinator in the English Department of the University from May 2004 through May 2007. In such position, she maintained a file of individuals who wished to teach English 111 and 112. Her practice, in general, was to discard resumes when a person was deemed not to be qualified. If an applicant was potentially qualified, but the person was not hired immediately, it was usually her practice to maintain resumes for approximately one year and then discard them.    

 

7.  It is found that, after the complainant’s April 19, 2006 request, the respondent asked Kelly Ritter whether she had any resumes for applicants to teach English 111 and 112 for the semesters from fall 2004 through fall 2006. Ms. Ritter responded that she had resumes for “individuals who had been hired to teach the classes,” but not “applicant resumes” (persons not hired).    

 

 8.  It is found that, based on his discussions with Ms. Ritter, the respondent formed a good faith belief that the English Department did not maintain any requested records after April 19, 2006 or following the Commission’s order, described in paragraph 5, above. In a nutshell, the respondent relied upon the search and report of his subordinate, Kelly Ritter. 

 

 9.  At the May 20, 2008 hearing, the complainant introduced evidence that suggested that the records retention schedule for employment applications, including resumes, might be two years. Records retention is within the jurisdiction of the Public Records Administrator at the State Library. Accordingly, the complainant may wish to refer the matter of discarding resumes of persons not hired to the Public Records Administrator at the State Library. 

 

10.  Following the May 20, 2008 hearing, counsel for the respondent on his own initiative wrote a letter to the hearing officer dated May 28, 2008 concerning “developments in this matter since the hearing….” This May 28, 2008 letter is admitted into evidence, pursuant to the Regulations of Connecticut State Agencies §1-21j-38. The letter states that, while cleaning out her office in preparation for leaving the University, Kelly Ritter discovered some requested records “not in a file, but (“…”) at the bottom of the drawer underneath other materials.” Counsel for the respondent attached to his May 28, 2008 letter eleven resumes, but with addresses, email addresses and some phone numbers redacted. No exemption from the FOIA was claimed for the redactions. Counsel for the respondent also sent a copy of his letter with the enclosures to the complainant.

 

11.  In response to the respondent’s May 28, 2008 letter, the complainant wrote a letter to the hearing officer dated June 3, 2008. This June 3, 2008 letter is also admitted into evidence, pursuant to the Regulations of Connecticut State Agencies §1-21j-38. The letter noted that not all the resumes that were disclosed bore a date within the time period specified for the requested records, and also expressed disapproval of the redactions described in paragraph 10, above.

    

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

 

13.  Because the respondent did maintain records within the scope of the order in contested case Docket #FIC 2006-256; William T. George v. State of Connecticut, Human Resources Department, Southern Connecticut State University; Connecticut State University, American Association of University Professors, it is concluded that the respondent did violate the promptness requirement of §§1-210(a) and 1-212(a), G.S. Moreover, the respondent failed to prove any exemption from the FOIA for the redactions described in paragraph 10, above, and thereby again violated §§1-210(a) and 1-212(a), G.S. 

 

14.  With respect to the complainant’s request for the imposition of a civil penalty, §1-206(b)(2), G.S., provides, in relevant part:

 

…upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.

 

15.  Based on the findings at paragraphs 8 and 10, above, the Commission finds that the respondent’s denial of FOIA rights was not “without reasonable grounds.” The Commission declines to impose a civil penalty.

 

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

 

1.  The respondent shall provide the complainant forthwith with copies of the eleven resumes discussed at paragraph 10, without any redactions, and henceforth, the respondent shall provide all records requested promptly.

           

2.  The respondent shall perform a new detailed search for the requested records within the English Department. Within twenty days of the mailing of this decision, the respondent shall provide a written report to the Commission, and furnish a copy of such report to the complainant, describing the details of the search performed and, especially, the results of the search. The description of the search performed shall detail who performed the search, the amount of time taken to perform the search, and the physical areas searched.

 

3.  The Commission suggests that the respondent consult with the state’s Public Records Administrator for guidance on the retention and destruction of public records. The Commission also suggests that the respondent consider maintaining resumes for applicants not hired in the Human Resources Department, where proper records maintenance procedures are likely to be more subject to continuing, established routine.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 25, 2008.

 

________________________________

S. Wilson

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 T. George

711 Wadsworth Street

Middletown, CT 06457

           

State of Connecticut, Robert McEachern,

Chairman, English Department,

Southern Connecticut State University

c/o Craig W. Patenaude, Esq.

Southern Connecticut State University

501 Crescent Street

New Haven, CT 06515

 

 

 

 

 

___________________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2007-611FD/sw/6/27/2008