FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Final Decision

Genaro R. Velez, Jr.,

Complainant

against Docket #FIC 1996-023

City Manager, City of New London;

Assistant City Manager, City of New

London; and Personnel Department,

City of New London,

Respondents, October 16, 1996

The above-captioned matter was heard as a contested case on May 13, 1996, at which time the complainant and the respondents appeared 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 respondents are public agencies within the meaning of §1-18a(a), G.S.

2. At the outset of the hearing into this matter, the parties stipulated that the personnel department of the city of New London is not a proper respondent in this matter, and therefore the complainant withdrew any claim with respect to the personnel department in this case.

3. By letter of complaint filed with this Commission on January 19, 1996, the complainant alleged that the respondents violated the provisions of the Freedom of Information (“FOI”) Act by denying his request for access to the answer sheet he completed in a promotional examination administered by the law enforcement council (“LEC”) on October 12, 1995.

4. Section 1-18a(d), G.S., provides in pertinent part:

“Public records or files” means any recorded data or

information relating to the conduct of the public’s business

prepared, owned, used, received or retained by a public

agency …

5. It is found that the October 12, 1995 exam at issue is a standardized exam created by the internal personnel management association (“IPMA”) and administered through the LEC, an independent contractor engaged by the city of New London to administer the test.

6. It is found that although the city of New London did not prepare, own, receive or retain the examination at issue, it did use the examination and the results thereof to make promotional decisions.

7. It is accordingly concluded that the examination answer sheet identified in paragraph 3, above, is a public record within the meaning of §1-18a(d), G.S.

8. It is found that by letter dated December 28, 1995 to the respondent city manager, the complainant requested access to his promotional examination given on October 12, 1995. The complainant also noted in this letter that he had reviewed the test booklet at the LEC office in November, 1995, but that he had not been permitted to see his answer sheet or answer stencil at that time.

9. It is found that by letter of response dated January 3, 1996, from the respondent assistant city manager, the complainant was informed that his answer sheet would not be provided because of the need to “safeguard the security of the test to ensure fairness to all present and future candidates.” This letter of response also outlined the steps taken by the LEC to review his test results with him on November 3, 1995.

10. Section 1-19(b)(6), G.S., provides:

Nothing in sections 1-15, 1-18a, 1-19 to 1-19b, inclusive, and

1-21 to 1-21k, inclusive, shall be construed to require disclosure

of …(6) test questions, scoring keys and other examination data

used to administer a licensing examination, examination for

employment or academic examinations.

11. It is found that the records at issue constitute examination data used to administer an employment examination within the meaning of §1-19(b)(6), G.S.

12. It is concluded that the requested records identified in paragraphs 3 and 8, above, are exempt from disclosure pursuant to §1-19(b)(6), G.S.

13. At the hearing into this matter, the complainant also claimed that the respondents are in violation of the New London personnel rules and regulations.

14. This Commission lacks jurisdiction to enforce the provisions of the New London personnel rules and regulations.

15. The complainant also claimed that because the LEC permitted him to review the test question booklet in November, 1995, he is now entitled to disclosure of the answer sheet at issue.

16. It is found that the LEC’s disclosure of the test question booklet does not constitute a waiver of the §1-19(b)(6), G.S., exemption claimed by the respondents, that would mandate disclosure of the answer sheet at issue.

17. It is concluded that under the facts of this case, the respondents are not in violation of the provisions of the FOI Act.

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 16, 1996.

__________________________

Elizabeth A. Leifert

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:

Genaro R. Velez, Jr.

1024 East Lake Road

Oakdale, CT 06371

City Manager, City of New London;Assistant City Manager, City of New London; and Personnel Department, City of New London

c/o Marguerite Driscoll Matt, Esq.

PO Box 1351

New London, CT 06320

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission