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SEE YOU IN COURT! - February 2020

CABE Journal

February 1, 2020

Nellie Newbie was excited to be a newly-elected member of the Nutmeg Board of Education, but she admits that she has a lot to learn.  Nellie thought that she would be able to ease into her responsibilities, quietly observing veteran Board members like Bob Bombast or Mal Content to figure out what not to do.  However, starting the night she won her election, Nellie has been hearing constantly from friends and strangers alike about what they think she should be doing.

Nellie heard about the Freedom of Information Act, and she doesn’t want to be featured in some newspaper exposé about embarrassing emails.  Accordingly, Nellie uses her district-issued email for official communications from and to the Superintendent and her fellow Board members.  But for the random, candid exchange with a friend or acquaintance, Nellie has been careful to use her personal email so that searches of the district server will not turn up potentially-embarrassing emails.

Nellie attended her first meeting as a Board member last month, and she was listening carefully to the Board’s discussion about whether to create a new girls team to equalize athletic opportunities between the genders in accordance with Title IX.  She was surprised, however, when fellow Board member Penny Pincher piped up, “Just eliminate the boys wrestling and be done with it.  Less can be equal too!” 

Nellie was then even more surprised when her cellphone buzzed. Nellie looked down at her cell phone and saw that she had received a text from the wrestling coach, who happened to be sitting in the audience.  He implored Nellie to defend his program, telling her that his team is the preseason favorite to win the conference this year.  Nellie texted him right back with “I’ve got this” with a thumbs-up emoji and gave him a little wave before she raised her hand to be recognized.

“With all due respect for Penny’s creative suggestion,” Nellie addressed the Board, “I think that cutting the wrestling program would be a huge mistake.  Our wrestling program is the pride of Nutmeg, and I heard that we are the preseason favorite to win the conference championship this year.”

“Where did you hear that?” Penny pushed back.  “Our wrestling team has had a terrible record for years.”  But Mr. Chairperson interrupted Penny and Nellie, explaining that the boys wrestling team is not on the agenda and shouldn’t be discussed. 

Unfortunately for Nellie, the matter was not over.  When the meeting ended, Nancy Newshound, reporter for the Nutmeg Bugle, made a beeline for Nellie and confronted her.  “I couldn’t help but notice that you were texting during the meeting.  Under the Freedom of Information Act, I request a copy of any texts you sent or received during the meeting this evening.”

Nellie smiled sweetly and tried to deflect by admitting to Nancy that there were a couple of personal texts, but they weren’t worth the bother.  However, Nancy wasn’t swayed.  “Here’s my cell phone number.  If you don’t forward those text to me by 9 a.m. tomorrow, I will file a complaint with the Freedom of Information Commission.”

Does Nellie have to forward the texts to Nancy?

*         *         *

Nellie has a lot still to learn about the Freedom of Information Act.  Not only are those texts public records, but also the very act of texting during a public Board meeting raises legal issues over the public’s access to the meeting itself.

As an elected member of the Nutmeg Board of Education, Nellie is a “public official,” and as such she is a “public agency.”  Records related to Board business that she creates or receives are “public records or files,” which are defined by the FOIA 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, . . . whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

Conn. Gen. Stat. § 1-200(5).  This broad definition of “public records” is significant to Nellie for a number of reasons.

First, Nellie’s use of her personal computer does not affect the status of the emails that she sends and receives.  When those emails relate to the business of the Nutmeg Public Schools, they are “recorded . . . information . . . prepared, . . . received or retained by a public agency,” no matter where they are created or maintained. 

Second, the definition of public records applies not only to emails (and other information) that Nellie sends, but also to emails and other information that she may receive.  When parent or other third party emails a board member about board business, he or she is creating a public record, which in turn is subject to disclosure unless a specific exemption from disclosure applies.

Third, by using her personal email account, Nellie is imposing a burden on herself.  As a board member, Nellie may get FOI requests for emails related to board business.  When those emails reside on the district server, responding to such FOIA requests is a matter for the district’s IT department.  But when such emails are on Nellie’s personal account, responding to such a request is Nellie’s problem.

Given the broad definition of “public records or files,” it is no surprise that any texts related to board business that board members send and receive are also public records.  To be sure, such communications will often be considered transient and not subject to record retention requirements.  However, unless and until such texts are in fact deleted, they are public records subject to disclosure under the FOIA.

Here, Nancy was aware of Nellie’s texts, and she made the request before Nellie could delete those texts.  Moreover, under the FOIA, Nellie has a duty to respond “promptly” to Nancy’s request.  Nancy’s 9 a.m. deadline was a bit much, but Nellie is legally obligated to provide her the texts without undue delay.

Finally, texting about board business during a meeting, whether to board members or others, can also be considered a violation of the open meeting provisions of the FOIA.  Members of the public have the right to attend public meetings and to be aware of what is being said.  In one interesting case, the Freedom of Information Commission held that “secretive conduct” by members of a public agency, including speaking in voices softer than usual, effectively denied members of the public the right to attend the meeting.  Saluga v. Board of Assessment Appeals, Town of Brookfield, Docket #FIC 2013-221 (January 8, 2014).  Analogously, one can easily argue that texting among board members during a meeting would violate the FOIA because the public would not hear all that was being “said” during the meeting.

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