Originally appeared in the CAS Weekly Newsletter. Written by Attorney Thomas B. Mooney.
Dear Legal Mailbag:
I was just appointed principal of my school last fall. Despite my charming personality, I find that I am not the most popular person in my building. That honor falls to the head custodian, who has been here for the last twenty years. He really knows how to schmooze the parents, and he is always doing some favor or another for the teachers. Unfortunately, the rigor of his cleaning does not match up to his celebrity, and I have found it necessary to remind him to do a better job. My reminders seemed to be ineffective, and, as the end of the year approached, I decided to give him a written evaluation, something that he has not received for years, if ever.
Needless to say, I included some pointed comments in his evaluation about the quality of his work, and I even told him that he would do better to focus more on keeping the building clean than on being a pal to students, parents and staff. He didn’t take it well – at all. He started moping around, and some parents and some teachers picked up on it and, apparently, asked him what the matter was. I don’t know exactly what he said, but several teachers have now come to me unsolicited to tell me what a good job he does. To make matters worse, the president of the PTO (an officious father who is hard to take) stopped by to say that he heard from a “reliable source” that I have it out for the head custodian. I responded that I am not at liberty to talk about personnel matters, but he persisted by making an FOI request for “any and all evaluative documents” that I have written about the head custodian.
I have always heard that evaluations are confidential, and I would like very much to hear Legal Mailbag tell me that I can deny this request and keep the evaluation private between the head custodian and me. Would you do me that favor?
No can do. Your knowledge about evaluations and the Freedom of Information Act is imperfect, and here the evaluation of the head custodian is a public record subject to public disclosure.
Your confusion is likely based on the special statute that deals with teacher evaluation records. Conn. Gen. Stat. Section 10-151c provides that “records of teacher performance and evaluation” are not public records and may not be disclosed without the permission of the affected teacher. To be sure, even some teacher records are subject to public disclosure; the statute also provides that “records of the personal misconduct of a teacher shall be deemed to be public records.” However, records created pursuant to the teacher evaluation system will generally be exempt from disclosure.
Significantly, the provisions of Section 10-151c relate only to records of “teacher” performance and evaluation, and the statute defines “teacher” as “each 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.” Accordingly, all other employees of a school district are subject to the normal FOIA rules, and their evaluations, as records maintained by a public agency in which there is a public interest, are subject to disclosure under the FOIA.
Here, the written evaluation that you prepared is subject to disclosure under the FOIA. I do not mean to discourage you or others from doing your job and writing critical evaluations and even disciplinary letters. But you should know that the public will be able to request and receive a copy of whatever you write (and whatever the employee being evaluated chooses to write in response). Good luck!