Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.
Dear Legal Mailbag:
I am an inveterate note-taker, whatever the meeting. Indeed, I have a bound notebook that I take everywhere with me, and I have it open and at the ready at every meeting. I enter the date and the nature of the meeting, and when people start talking I start writing. When I fill up my notebook, I bring it home and put it with the many others that I have accumulated over my ten-plus years in public education. I usually don’t pay much attention to the completed notebooks, but every once in a while, I go back and check my notes to respond to a parent or to report back to my colleagues.
The other day, I was scribbling away in my notebook during a PPT, and the parent suddenly pointed at me and asked what I was doing. I politely explained that I was just taking notes, as is my habit, and I assured the parent that my notes were just for my personal use. I didn’t give her question another thought until the next day, when the parent emailed me as follows: “In accordance with the Freedom of Information Act, I hereby request a copy of your notes from the PPT meeting yesterday.” Do I have to cough up my notes?
None of Her Business
Legal Mailbag must start here by asking whether your notes are even public records, as explained below. If they are not public records, they are not subject to the Freedom of Information Act at all. If they are public records, they are still exempt from disclosure if you keep your notes to yourself.
The Freedom of Information Act defines “public records” broadly 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.” (Emphasis added). Please note that for the records to be subject to the Freedom of Information Act, they must be created or maintained by a public agency (which includes “public officials”). Legal Mailbag understands that you don’t turn your notes over to the school district, and thus they are not maintained by a public agency. Accordingly, your notes are public records only if you, as a school administrator, are a “public official” under the FOIA. We know that superintendents and assistant superintendents are considered “public officials” and, as such, the records that they create are subject to FOIA requirements. However, it is not clear how far down the organization chart the Freedom of Information Commission would go in identifying “public officials,” and you may not be a “public official” for this purpose.
Even if you are considered a “public official” such that the records related to district business that you create are “public records,” your personal notes may be exempt from disclosure as described below. Conn. Gen. Stat. § 1-210(b) lists various types of records that are exempt from disclosure, and such records range from FERPA-protected records to confidential attorney-client communications. The exemption applicable here is the very first one – “preliminary drafts and notes” as listed in Conn. Gen. Stat. § 1-210(b)(1).
Not all notes are exempt from disclosure. First, the public agency must “determine that the public interest in withholding such documents clearly outweighs the public interest in disclosure.” In the case of personal notes, that determination will be easy, as described in a related court case described below. Second, the notes must be kept confidential. As soon as notes are shared with others, they are no longer preliminary because they communicate information on which decisions may be made.
Here, it seems that you take these notes as memory aids and that you keep them to yourself. If Legal Mailbag is correct in this understanding, you may consider your notes “preliminary drafts and notes,” and you may decline to share your notes pursuant to a Freedom of Information Act request. This conclusion makes good sense because public officials should be able to take memory notes without worrying that their hurried jottings will be subject to disclosure (and potential publicity by antagonists).
In considering this issue, one judge offered the following salient observations:
If the Court were to follow the logic of [the plaintiff’s] argument[,] every member of every public agency hearing a matter would require that any of [its notes], scribbles, comments etc. be subject to scrutiny and review. It would lead, in many instances, these public servants to become so preoccupied with the quality of their notes that many would sit rigidly and take no notes. It would raise novel issues as to what would happen if the board members destroyed their notes before collection, who would be required to collect the notes, and how the notes would be attributable to the specific scrivener. The type of notes that are written by board members could eventually be used in trial proceedings or as evidence in appeals to state agencies. This certainly is not what the legislature contemplated.
Lewin v. Freedom of Information Commission, 2004 WL 2284250 (Sup. Ct. 2004), aff’d 91 Conn. App. 521 (Conn. App. 2005). The concerns expressed by the court apply to the notes you take as well. As long as you keep your notes to yourself, you may keep them as confidential.