March 13, 2002
DISCLOSURE OF PERFORMANCE EVALUATIONS
By: Mary M. Janicki, Assistant Director
You asked for the occupations held by public employees whose performance evaluations are open to the public. You also want to know if coaches are covered under the definition of “teacher” in the law that exempts teachers' performance evaluations from disclosure.
The Office of Legislative Research is not authorized to issue legal opinions and this memorandum should not be considered as one.
The performance evaluations of state and municipal employees are open to the public with a few exceptions, including one for public school teachers.
The law exempts from disclosure teachers' performance evaluations. Although the statutory exemption applies to certified professional employees and not all coaches are certified (though they all must have a permit), the Freedom of Information Commission (FOIC) has applied this exemption to coaches' evaluations. The FOIC, in a decision upheld by the Superior Court, limits the exemption to evaluations only. Thus, other information in a teacher's personnel record is open for disclosure unless some other exemption applies.
ACCESS TO EVALUATIONS
The Freedom of Information Act's (FOIA) provisions on records disclosure apply to executive, administrative, and legislative offices of the state; judicial offices but only with respect to their administrative functions; and political subdivisions of the state like cities and towns. Such a “public agency's” employees' personnel files are subject to disclosure except for portions that include medical files or similar files, which, if disclosed, would legally constitute an invasion of privacy. The FOIA includes provisions for notifying employees of a request for their personnel records and the procedures employees can follow to keep the records confidential. Otherwise, they are subject to disclosure to the public (CGS § 1-214(b) and (c)).
The FOIA's provisions on open records apply unless some other federal or state law requires records to be treated confidentially. Public agency employees whose performance evaluations are exempt from disclosure are:
● Judges (CGS § 2-40a)
● Public school teachers (CGS § 10-151c)
● State higher education faculty and professional staff members (CGS § 10a-154a)
● Workers' Compensation Commission commissioners (CGS § 31-280(b)(25)
APPLICATION TO COACHES
Records of a teacher's performance and evaluation are exempt from the FOIA's requirements. They cannot be released to the public without a teacher's written consent. Under the exemption in CGS § 10-151c, a teacher is defined as a “certified professional employee below the rank of superintendent employed by a board of education in a position requiring a certificate issued by the State Board of Education” (emphasis added).
A coach must have a coaching or temporary emergency coaching permit, but is not in a position that requires a certificate (Conn. Agency Regs. 10-145d-423 and –424). To qualify for a permit, a person can, but need not, have an educator certificate. The law requires superintendents to evaluate each professional employee, including coaches, who holds a certificate or permit (CGS § 10-151b).
Attached is an OLR Report on the legislative history of the law exempting teacher evaluations from disclosure (2000-R-0325).
In a 1999 case before the FOIC, a complainant requested an amended performance evaluation for the football coach in Simsbury. The commission found that the coach is a teacher and that the subject record, though a public record, constituted a record of “teacher performance and evaluation” and was exempt from disclosure pursuant to § 10-151c. (Joan Coe v. Superintendent of Schools, Simsbury Public Schools, Docket #FIC 1999-294, November 19, 1999).
The commission's final decision included the statement: “It is found that [the coach] is a teacher within the Simsbury Public Schools system.” But it did not discuss the point or describe the rationale for that conclusion.
In another FOIC decision of a decade earlier, the commission permitted the withholding of information or portions of letters “that evaluate the performance of the Lyman Hall High School football coach,” based on the disclosure exemption under § 10-151c (George L. Bozzi, Jr. v. Superintendent of Wallingford Public Schools, Docket #FIC 88-457, February 8, 1989).
ACCESS TO PERSONNEL RECORDS THAT ARE NOT EVALUATIONS
In a related matter, a Superior Court judge upheld an FOIC decision that permitted withholding some records of a teacher and coach under the § 10-151c exemption but required disclosure of other personnel records that did not relate to the person's performance or evaluation as a teacher. The Superior Court heard the appeal of an FOIC ruling under the Uniform Administrative Procedure Act's contested case procedures. The FOIC had found that some of the requested documents were exempt under § 10-151c, but the teacher plaintiff had not met the burden of proof required to claim an exemption on other records in his personnel file. The commission found those records “are not records of teacher performance and evaluation within the meaning of 10-151c and are therefore not exempt from disclosure pursuant to such provision” (Richard Jerr v. FOIC, Judicial District of New Britain, August 6, 2001).
The commission ruled, and the court concurred, that “records of personal misconduct occurring when the teacher should have been teaching” (emphasis in original; FOIC's January 31, 2001 Brief, p. 11) are not covered by the exemption.
The court found “the distinction to be made is that a record pertaining to personal misconduct of a teacher, even if occurring in the classroom but unrelated to teaching, is not protected from disclosures under General Statutes § 10-151c.”