Originally appeared in the CAS Weekly NewsBlast. Written by Attorney Thomas B. Mooney.
Dear Legal Mailbag:
I have been around the block, but yesterday a parent made a demand that is a new one for me. I had met with the parent to review the results of our bullying investigation about her son’s behavior (and between you and me, the apple doesn’t fall too far from the tree here). The parent became increasingly agitated as I went through our findings, and when I ended my summary by conveying our finding that we have verified that her son engaged in bullying behavior, she lost it, hysterically demanding a copy of our bullying investigation report. I denied her request, explaining that the report is a confidential document that includes personally-identifiable student information about students in addition to her son. At that point, she got up and walked out, and I was hopeful that she would cool off and that would be that.
I was sadly mistaken. Today, I received an FOIA request from this parent for my personal notes concerning this matter. Specifically, before our difficult conversation, I had outlined my talking points in handwritten notes, and I referred to those notes when I spoke to her. In her request for a copy of my personal notes, the parent cited the FOIA definition of “public record” as including “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,” (her emphasis).
I certainly don’t want to share the notes, but it seems that she has me over a barrel on this request. Now I am sorry that I was so organized and prepared for the meeting. Can you help me?
You needn’t feel bad about preparing for the meeting and taking personal notes to do so. Indeed, your organizational skills are an inspiration to the rest of us. As to this parent’s request, the parent is correct in claiming that your personal notes, even though handwritten, are a public record under the FOIA. However, a little learning is a dangerous thing, and the parent’s analysis of the situation is incomplete. While your notes relating to your work at your school are a public record, not all public records are subject to public disclosure.
Conn. Gen. Stat. Section 1-210(b) sets forth a list of some twenty-seven categories of public records that are exempt from public disclosure. The very first exemption on the list is “(1) Preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.” We will save for another day the question of whether you, as a school principal, are a public agency. Presuming that you are, you have the right to claim that your personal notes are exempt from disclosure, and you can deny this parent’s request on this basis.
The Appellate Court looked at this issue in 2005 (Lewin v. Freedom of Information Commission), ruling on a request from a person who had been the subject of an ethics hearing. After the hearing, he asked for copies of the personal notes taken by the members of the ethics commission hearing the case. The Appellate Court affirmed the finding of the Freedom of Information Commission that such notes were “preliminary notes” that were not subject to disclosure under the FOIA. In so ruling, the Court made an important observation that a contrary ruling would impede public officials in their work, because an inability to take private notes without fear of public disclosure would discourage them from taking such notes, making their jobs more difficult.
Similarly, you took the notes here to help you do your job. Since they are your private notes, they are not subject to public disclosure. However, be warned that sharing the notes with the superintendent or another colleague may change the analysis. At that point, the notes would no longer be preliminary, and thus they would likely be subject to public disclosure. In any event, keep up the good work.
Please submit your questions to: firstname.lastname@example.org.