Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
I have always understood that personnel matters are confidential. Therefore, I was surprised when the superintendent shared personnel file information about a teacher with the public at my local board of education meeting last evening.
Some weeks ago, a teacher in my school was arrested and charged with stealing funds from the receipts for the senior play. It was quite the story, with a lot of attention on social media, and the teacher was suspended pending investigation. Some of those commenting on social media took the opportunity to attack the board of education and the superintendent, with offensive posts like “What clowns are running this circus?” These obnoxious people accused the superintendent and board of education members of incompetence, claiming that their lack of oversight and controls effectively invited this teacher to take the money.
Last night, during his report, the superintendent grandly announced that the teacher has resigned his employment, has pled guilty to Larceny Third, a Class D felony, and is awaiting sentencing. The superintendent then launched into a speech about how crime doesn’t pay and that the school district will hold teachers accountable whenever they break the law.
How is it OK for the superintendent to be talking publicly about confidential personnel matters?
Speak No Evil
Legal Mailbag must point out to you that there is a difference between common practice and legal obligation. To be sure, there is a general perception that personnel matters are confidential, and public entities such as school districts typically decline to comment publicly on personnel matters. However, there is a big difference between common practice and legal rights and obligations.
When people take employment in the public sector, they give up many of the rights of privacy that are generally afforded in the workplace. Public employee records regarding salary, academic achievement, sick leave utilization, and even home addresses, for example, are all accessible to the public through the Freedom of Information Act. Indeed, rather than ask what school district employee information is public, it may be better to ask what employee information is not. It is a short list.
Some employment records are confidential by operation of law, including criminal history records and social security information. Conn. Gen. Stat. § 1-210(a). For teachers, furthermore, “records of teacher performance and evaluation” are exempt from disclosure. Conn. Gen. Stat. § 10-151c.
Other records are exempt from disclosure in the discretion of the public agency, as set forth in Conn. Gen. Stat. § 1-210(b). The most relevant exemption here is the second exemption: “(2) Personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.” On its face, that exemption would seem to protect personnel file information. However, relying on the tort standard for invasion of personal privacy, the Connecticut Supreme Court has interpreted this exemption narrowly. Disclosure of such records will be considered an invasion of privacy (and thus exempt from disclosure under the FOIA) only if (1) the information sought does not pertain to a legitimate matter of public concern, and (2) disclosure of the information would be highly offensive to a reasonable person. Perkins v. Freedom of Information Commission, 228 Conn. 158 (1993).
Given that high standard, most personnel file information for school employees is subject to public disclosure, including disciplinary records. As to such records, the Freedom of Information Commission has applied the Perkins test to rule that (1) the public has a legitimate interest in knowing whether public employees have been disciplined, and (2) that the disclosure of public employee disciplinary records therefore is not “highly offensive to a reasonable person.” Moreover, as to teachers, the law exempting “records of teacher performance and evaluation” was clarified in 2002 to provide as follows:
. . . records maintained or kept on file by . . . any local or regional board of education that are records of the personal misconduct of a teacher shall be deemed to be public records and shall be subject to disclosure pursuant to the [FOIA]. Disclosure of such records of a teacher’s personal misconduct shall not require the consent of the teacher. (Emphasis added).
This revision underscores the public policy determination that disciplinary records must be made be available to the public upon request. Given these laws and how they have been interpreted, the former teacher in question has no legal claim against the superintendent for publicly commenting on the teacher’s resignation and the related facts.
Finally, there is some provision in the law for confidential discussion of public employees. Under Section 1-200(6) of the FOIA, public agencies may convene into executive session to discuss “the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee” unless the employee or public officer requests that the discussion be held in open session. However, such executive session discussion is permissible only with a two-thirds vote, and executive session of personnel matters is never required by law.