It's Public Knowledge

[From the
Connecticut Freedom of Information Commission's
30th anniversary commemorative edition
published as a supplement in 2005
to Law Tribune Newspapers]

By ANDY THIBAULT


School system employees have the worst track record among Connecticut government agencies for complying with freedom of information requests, instilling fear and dread among citizens who approach them for public records.

They scared even a savvy former Wall Street accountant, Laura Gallagher of Westport, when she asked them in 2001 for minutes of meetings.

"It was the scariest time of my life," said Gallagher, now a homemaker.

Gallagher and a group of Westport residents learned that a school board committee had conducted a series of secret meetings about plans to develop an all-day kindergarten program.

"We wanted to attend meetings to see what was going on," Gallagher said.

The school board committee held secret meetings in 2001 on April 11 and May 9 and in 2002 on Jan. 10 and Jan. 31. No notices or agendas were posted, as required by law. The meetings were by invitation only.

When confronted, School Superintendent Elliott Landon and Asst. Superintendent Lynne Shain contended these sessions really weren't meetings. They went so far as to claim that Shain was not a public official.

Such a stance is the norm for education officials, according to the Connnecticut Foundation for Open Government. The foundation, which tracks the performance of public agencies in responding to FOI requests, reports that police departments are twice as cooperative as school boards in producing public information. School systems are ranked at the bottom of the barrel in terms of FOI compliance.

"He [Landon] denied us access to the meetings," Gallagher said. "We realized they were violating the open meetings law."

After a lot of soul searching and discussion, Gallagher and six other residents filed a formal complaint. In December 2001, they claimed the Westport school board held "unnoticed" meetings, denied public access to the meetings and failed to produce records when asked.

"If we lost," Gallagher said, "we thought we would have to move out of town. It was completely against the democratic process."

The FOI Commission, in a decision dated May 22, 2002, found:

* The kindergarten committee was a public agency;

* The meetings were not akin to routine, daily meetings of the assistant superintendent, as had been claimed by the school system.

* The committee violated the state's open meetings law.

The commission directed the school board to obey the law going forward.

"After we forced them to hold open meetings," Gallagher said, "they claimed this was a ground-breaking event. This really opened up a lot of eyes in our town. I'm very thankful that the FOI commission is there. This keeps the process open and honest."

Vigilance is necessary to hold public officials accountable and keep the public's business out in the open, she said, noting that this can be a wearisome process taking many months of hard work.

Indeed, after this case was settled, the Westport school board was cited in another complaint for withholding e-mail correspondence from the public. The superintendent turned over e-mails only after a complaint was filed. Another Westport agency, the Representative Town Meeting, had already established a system for citizens to view copies of e-mail correspondence at the town clerk's office.

Sharlene Radican of Marlborough had a similarly-fulfilling experience with her local school board, Regional District 8.

Radican was not well-versed in filing requests for public records. Consequently, she got the runaround from school officials.

On May 23, 2003, Radican requested the "personal file" of an employee, rather than any and all of the employee's records of misconduct and discipline.

Some documents were provided four days later, but Radican knew that at least several records of complaint were missing. She reported this in a phone call to school officials. Then, on June 5, 2003, she filed a complaint with the FOI Commission.

The school system contended it had complied with Radican's request by providing certain records in the employee's personnel file and, that if she wanted anything else, she should have been more specific.

"It was me against a bunch of lawyers, which can be intimidating," Radican said.

The FOI Commission reviewed Radican's request for records in its totality, and make several significant findings on her behalf. The commission found:

* It is not unusual that records of complaint, misconduct and discipline are typically the types of records found in an employee's personnel file. An individual requesting records, who is unfamiliar with precisely how an agency chooses to maintain and label its files, would not have specific knowledge that certain records, pertaining to an employee may be physically located in a file or files NOT labeled personnel file.

* Our Supreme Court has made clear that "As a practical matter, the FOIA is used repeatedly by members of the public who are unschooled in technical, legalistic language distinctions. It would be unreasonable to deny a member of the public access to the FOIA simply because of arguable imperfections in the form in which a request for public records is couched."

* The state Supreme Court has also said: "The overarching legislative policy of the FOIA is one that favors the open conduct of government and free access to government records. As we have repeatedly noted, our construction of the FOIA must be guided by the policy favoring disclosure."

* A reasonable reading of Radican's request, coupled with her follow-up telephone call, suggests her request for records was not limited to records that are physically maintained in a file labeled personnel file, but rather that her request was for records of a personal nature concerning the employee, including complaints, misconduct and discipline.

* To the extent that the school board maintains records of complaints, misconduct and discipline, such records are public records.

Because the school system failed to turn over all the records, the commission ruled that it violated the FOI law. The commission ordered the school system to provide Radican with any and all records having to do with complaints, misconduct and discipline forthwith.

"They were very helpful," Radican said of the FOI Commission staff. "They were awesome."

Sometimes officials just need a little reminder to conduct public business in the open.

The Marlborough Board of Finance chairman, under deadline pressure in June 2002, contacted fellow board members by phone and e-mail to determine support for a press release endorsing a budget.

"I didn't recall them ever discussing this or voting on it," said town resident Kenneth Hjulstrom, who read about the endorsement in his local newspaper. "This was a very significant issue and they made this decision out of the eye of the public."

Acting on a complaint by Hjulstrom, the commission found:

* The telephone and e-mail poll, communication by or to a quorum of the board, constituted a meeting.

* The need to submit a press release did not rise to the level of an emergency.

* The public did not get notice of the special meeting, nor was the meeting open to the public.

* The results of the poll, tantamount to a vote, were not recorded.

The FOI Commission ruled that the board violated the notice and meeting requirements of the law, and ordered it to comply in the future.

"From then on," Hjulstrom said, "they tended to be more careful."


Andy Thibault is a contributing writer for the Connecticut Law Tribune and is a former FOIC Commissioner.