Final Decision FIC2013-593
In the Matter of a Complaint by
||Docket #FIC 2013-593|
President, State of Connecticut,
Middlesex Community College; and
State of Connecticut,
Middlesex Community College,
July 23, 2014
The above-captioned matter was heard as a contested case on April 22, 2014, at which time the complainant and respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. For purposes of hearing, the above- captioned matter was consolidated with Docket #FIC 2013-572; Trenton Wright v. President, State of Connecticut, Middlesex Community College; and State of Connecticut, Middlesex Community College.
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 September 6, 2013, the complainant made a request to the respondents for “a copy of the evaluation my supervisor conducted in late spring of 2013 of me.”
3. By facsimile received and filed on October 2, 2013, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with a copy of the requested evaluation document, described in paragraph 2, above.
4. 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.
5. 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.
6. Section 1-212(a), G.S., provides in relevant part that “any person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
7. It is found that the record requested by the complainant is a public record and must be disclosed in accordance with §§1-200(5), 1-210(a) and 1-212(a), G.S., unless it is exempt from disclosure.
8. It is found that, by letter dated October 16, 2013, the respondents, in connection with a separate internal grievance claim filed by the complainant with the respondents alleging certain violations of his collective bargaining agreement, informed the complainant that the evaluation document described in paragraph 2, above, was never finalized and accordingly was not given to the complainant or placed in his professional file.
9. It is found that, by email dated November 6, 2013, the respondents informed the complainant that a draft copy of the evaluation document was placed in his mailbox in a sealed envelope. It is further found that the release of such document to the complainant was ordered in connection with the settlement of the grievance claim described in paragraph 8, above.
10. At the hearing, the complainant acknowledged that he received a draft copy of the evaluation document in connection with the grievance claim described in paragraphs 8 and 9, above. The complainant contended, however, that the document was a public record and should have been provided to him separate from the grievance claim. The complainant also argued that the respondents’ approximately 60-day delay in providing him with a copy of the evaluation document was excessive and violated the promptness provisions of the FOI Act.
11. The respondents contended that the requested record was exempt from mandatory disclosure pursuant to §1-210(b)(1), G.S., and that this matter was moot because the complainant was already provided with a copy of the evaluation document. At the request of the hearing officer, the respondents submitted the evaluation document for an in camera inspection.
12. 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.”
13. 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).
14. It is found that the evaluation document was, at the time of the complainant’s September 6th request, a preliminary draft. It is further found, however, that the respondents failed to prove that they had determined that the public interest in withholding such document clearly outweighed the public interest in disclosure. Accordingly, it is found that the evaluation document is not exempt from disclosure under §1-210(b)(1), G.S.
15. With respect to whether the respondents’ response to the complainant’s request was prompt, the Commission has held that the meaning of the word "promptly" is a particularly fact-based question. In Advisory Opinion #51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982), the Commission advised that the word "promptly," as used in §1-210(a), G.S., means quickly and without undue delay, taking into consideration all of the factors presented by a particular request.
16. The advisory opinion goes on to describe some of the factors that should be considered in weighing a request for records against other priorities: the volume of records requested; the time and personnel required to comply with a request; the time by which the person requesting records needs them; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the importance to the public of completing the other agency business without the loss of the personnel time involved in complying with the request.
17. It is found that, under the facts and circumstances of this case, the respondents’ provision of the requested evaluation document was not prompt within the meaning of §§1-210(a) and 1-212(a), G.S.
18. It is concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by failing to promptly provide a copy of the record, described in paragraph 2, above, to the complainant.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Henceforth, the respondents shall strictly comply with the provisions of §§1-210(a)
and 1-212(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of July 23, 2014.
Cynthia A. Cannata
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:
16 Simpson Avenue
Willimantic, CT 06226
President, State of Connecticut, Middlesex Community College; and State of Connecticut,
Middlesex Community College
c/o Mary K. Lenehan, Esq.
Assistant Attorney General
State of Connecticut,
Office of the Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT 06106
Cynthia A. Cannata
Acting Clerk of the Commission