FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on September 7, 2010, and October 26, 2010 at which times the complainants and respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

 

After the October 26, 2010, hearing on this matter, pursuant to §1-21j-38 of the Regulations of Connecticut State Agencies, the respondents filed one after-filed exhibit that is marked as follows:  Respondents’ Exhibit 1, Affidavit of Lynda Mitchell, dated November 4, 2010.

 

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

 

1.      The respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.      It is found that, by email dated March 10, 2010 (“March 10^th request”), the complainants made a request to the respondents for “a copy [of] John Perucci’s personnel file(s).  This includes any and all files that may exist due to his employment with the Thomaston Board of Education e.g., Superintendent files, personal files, disciplinary or investigative files concerning Mr. Perucci.” 

3.      It is found that, by email dated March 18, 2010, the respondent Superintendent acknowledged the complainants’ request and stated that she is “currently in the process of reviewing [such] request to determine whether there are any responsive, non-exempt documents.  I anticipate responding to your request by Tuesday, March 30.”

4.      It is found that, by email dated March 18, 2010, the complainants reiterated their

March 10^th request, and expressed that they expected that the respondents would have copies of the requested records ready for them by March 23, 2010.

5.      It is found that on or about April 12, 2010, the complainants received from the respondent Superintendent a copy of the personnel file of John Perucci, responsive to their March 10^th request described in paragraph 2, above.  It is further found, that subsequent to receiving such records, the complainants informed the respondents that their March 10^th request also sought any notes that the respondent Superintendent took when conducting witness interviews concerning complaints made against John Perucci.

6.      By letter dated April 14, 2010, and filed on April 16, 2010, the complainants appealed to this Commission, alleging that the respondents violated the Freedom of Information ("FOI”) Act by failing to provide them with copies of the records, described in paragraph 2, above. 

 

7.      Section 1-200(5), G.S., defines "public records or files" as:

 

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. . .(3) receive a copy of such records in accordance with section 1-212....

 

9.      Section 1-212(a), G.S., provides in relevant part that "any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record."

 

10.  It is found that the records requested by the complainants are public records and must be disclosed in accordance with §§1-200(5), 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.

 

11.  At the hearing in this matter, the complainants acknowledged that they had received some records responsive to their request, but contend that there are additional records being withheld, including, but not limited to, the respondent Superintendent’s notes, described in paragraph 5, above.

 

12.  It is found that the respondent Superintendent forwarded to the complainants a copy of the entire personnel file of John Perucci. 

 

13.  It is found that the respondent Superintendent did not provide to the complainants copies of her notes described in paragraph 5, above.  The respondents maintain that such notes are not part of John Perucci’s personnel file, but are the respondent Superintendent’s personal notes concerning investigations of complaints against John Perucci, and are exempt from disclosure pursuant to §1-210(b)(1), G.S.  See Docket # FIC 2003-198; Lee B. Smith v. Superintendent, Middletown Public Schools (where the FOI Commission concluded that notes of the assistant Superintendent’s interviews with witnesses during an investigation of a bullying complaint were preliminary drafts or notes within the meaning of §1-210(b)(1), G.S.).

 

14.  Section 1-210(b)(1), G.S., provides that “[n]othing in the Freedom of Information Act shall be construed to require disclosure of … [p]reliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.”

 

15.  In Shew v. Freedom of Information Commission, the Supreme Court ruled that “the concept of preliminary, as opposed to final, should [not] depend upon...whether the actual documents are subject to further alteration…” but rather “[p]reliminary drafts or notes reflect that aspect of the agency’s function that precede formal and informed decision making....  It is records of this preliminary, deliberative and predecisional process that...the exemption was meant to encompass.”  Shew v. Freedom of Information Commission, 245 Conn. 149, 165 (1998), citing Wilson v. Freedom of Information Commission, 181 Conn. 324, 332 (1989).

 

16.  On November 8, 2010, the respondents submitted four pages of unredacted documents to the Commission for in camera review.  The in camera records have been marked by the Commission and are hereinafter identified as IC-2010-249-1 through IC-2010-249-4.

 

17.  It is found that in camera documents IC-2010-249-1 through IC-2010-249-4 consist of notes taken by the respondent Superintendent during interviews of witnesses concerning complaints made against John Perucci.  It is further found that the respondent Superintendent used such notes as a personal memory aid, did not share them with others, but retained them in her sole possession. 

 

18.  It is found that the respondent Superintendent determined that the public interest in withholding in camera documents IC-2010-249-1 through IC-2010-249-4 clearly outweighs the public interest in disclosure.

 

19.  Upon careful review of in camera documents IC-2010-249-1 through IC-2010-249-4, it is found that they are permissibly exempt from disclosure pursuant to §1-210(b)(1), G.S.

 

20.  Section 1-210(e)(1), G.S., provides in relevant part that, notwithstanding the provisions of §1-210(b)(1), G.S., disclosure shall be required of:

 

[i]nteragency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency.

 

21.  The in camera documents described in paragraphs 16 and 17, above, are not interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, within the meaning of §1-210(e)(1), G.S. 

 

22.  It is further found that the respondents have no other records responsive to the complainants’ March 10^th request, described in paragraph 2, above.

 

23.  It is concluded, therefore, that the respondents did not violate the disclosure provisions of §§1-210(a) and 1-212(a), G.S., in this matter.

 

 

            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 March 9, 2011.

 

 

____________________________

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:

 

Christopher P. Hankins and the

Connecticut Education Association

21 Oak Street

Hartford, CT 06106

 

Superintendent of Schools,

Thomaston Public Schools; and

Thomaston Public Schools

C/o Matthew K. Curtin, Esq.

Siegel, O’Connor, O’Donnell & Beck, PC

150 Trumbull Street

Hartford, CT 06103

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2010-249FD/sw/3/15/2011