Dear Legal Mailbag:
I never went to law school, but as a high school principal, I have always been interested in legal issues. I was reading about the Freedom of Information Act the other day, and I was surprised to learn how broadly the FOIA defines “public records.” It seems that any recorded information I have about my school district is a public record, which is a little scary. I admit that my sarcastic side comes out with some of the texts that I send, and I certainly hope that text messages on my private cell phone are not considered “public records.”
Email seems to be an even bigger problem. Am I correct in my understanding that any email that relates to the operation of my school district is a public record that is subject to disclosure if requested under the FOIA? As Legal Mailbag must know, the number of emails we receive and send in our schools is growing exponentially. What explanation must parents and others provide to justify a request for emails or other public records under the FOIA? A related question is how narrowly must a requesting party focus his or her request? In my reading about the law, I often read about the “reasonable person” standard and “reasonableness” more generally. What are the rules to assure that FOIA requests are reasonable?
Your intellectual curiosity is impressive. Your optimism that there is some sort of “rule of reason” regarding FOIA requests, however, is misplaced.
You correctly describe the definition of “public record” under the FOIA as very broad:
(5) “Public records or files” means 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). Notably, the recorded information must relate to the business of your school district, but whenever that is the case, such recorded information will be a public record. That includes your text messages about school matters, so watch yourself and lose the sarcasm!
Members of the public are entitled under the Freedom of Information to request access to or copies of public records. Contrary to your wishful thinking, members of the public do not have to explain or justify their requests for access to public records. Moreover, there is no “rule of reason” or “reasonableness” standard when it comes to the scope of FOIA requests, and members of the public are free to make very broad FOIA requests.
What public records must be disclosed upon request is a different question, and various records are confidential, such as student information, teacher evaluation information, attorney-client communications and collective bargaining strategy documents. But the FOIA is considered “remedial legislation” that will be interpreted broadly to effect its remedial purpose – public access to and knowledge of the workings of government. Accordingly, the burden to establish that a record is confidential falls on the public agency.
Email is a particular problem. Members of the public can make broad requests for email without justifying or even explaining the purpose for the request. Since school email is used so broadly, some requests encompass thousands or even tens of thousands of emails. To compound the problem, many emails contain student information or other confidential information. Happily, the Freedom of Information Commission has blessed procedures whereby public agencies can search for emails responsive to an FOIA request by identifying appropriate search terms and searching electronically. However, once the electronic search is complete, it is usually necessary to go through the identified emails individually to redact FERPA-protected student information or other confidential information before they are disclosed.
The FOIA provides that public agencies must respond “promptly” to FOIA requests. Fortunately, the Freedom of Information Commission considers all facts and circumstances in determining whether a public agency has responded “promptly” to a request. Public officials are well-advised to reach out to a party making a broad request to see if he or she is willing to narrow the request, and through such conversations it is often possible to get to the heart of an FOIA request and provide the records without undue burden. However, when the requesting party is unwilling to be reasonable and insists on compliance with a broad request, the public agency must make a good faith attempt to identify and provide the requested records. When the request is very broad, the Commission may even find that taking six months to provide the requested records is a “prompt” response. Indeed, when the requesting party is informed that the response to the request will take months, he or she is often more willing to be reasonable and narrow the request.
Originally appeared in the CAS Weekly Newsletter.