Dear Legal Mailbag:
I am a high school principal, and last week I had a contentious meeting with a parent. He accused me of not doing enough to protect his daughter from unkind classmates because mean girls were not inviting her to their various birthday parties and other social events. I expressed my sympathy, which was genuine, but I explained that I have no jurisdiction over social events outside of school. While we were talking, I took notes on my computer. As our conversation progressed and he became increasingly agitated, I stayed calm and just kept taking notes.
When the parent stood up to leave, he asked me to send him a copy of my notes of our meeting “for his records.” I politely declined, explaining that my private notes are just that, private. The parent’s parting shot, however, was “We will see about that.”
Yesterday, I found out what he meant. The parent sent me a long email with an FOIA request for “all records in my possession, including the notes taken during our conversation, concerning [his daughter’s name].” His email went on to state that he expects me to provide all requested records within the next four days in accordance with the Freedom of Information Act or he will pursue “all available legal remedies.”
I have two questions. First, do I really have to respond to this FOIA request in four days? This coming week is pretty busy, and I am not sure that I can gather all those records in such a short time. Second, I would really prefer not to share my notes, because I may have included some ill-advised comments in my notes (like “parent whining about . . . .”). FOIA is not my forte, and I appreciate Legal Mailbag’s help.
Waiting for Wisdom
Dear Waiting:
In its wisdom, Legal Mailbag has a threshold question for you. As a high school principal, why are you worrying about an FOIA request? Presumably, your district has a custodian of records, and, if so, you should forward this request to that person to respond to this request.
That said, Legal Mailbag can answer your two questions. First, a public agency is not required to respond to FOIA requests for records in four business days. To be sure, if a public agency does not respond to a request for records within four business days, the FOIA provides that the requesting party may file a complaint with the Freedom of Information Commission, claiming that he or she has been denied access to public records. Conn. Gen. Stat. § 1-206(a). However, the FOIA simply requires that public agencies respond “promptly” to a request for copies of public records. Conn. Gen. Stat. § 1-212(a). A “prompt” response can be less than four business days if the request is simple and limited, and a “prompt” response can take months when the request is extensive and may require careful review and redaction (as when student records may be involved). Best practice is simply to acknowledge the FOIA request within the four business days along with an estimate of how long it will take to provide responsive records.
Second, personal notes taken by public officials as they do their jobs are generally not subject to public disclosure. The definition of public records is very broad, encompassing “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, videotaped, printed, photostated, photographed or recorded by any other method.” Conn. Gen. Stat. § 1-200(5). However, not all public records are subject to public disclosure. Conn. Gen. Stat. § 1-210(b) has 28 subsections that list public records that are not subject to public disclosure. One category of exempt records with which you as a high school principal are assuredly familiar is included in subsection (17) of Section 1-210(b): “Educational records which are not subject to disclosure under the Family Educational Rights and Privacy Act, 20 USC 1232g;”
Reference to the very first exemption in Section 1-210(b) answers your question about your personal notes. Section 1-210(b)(1) exempts the following records from disclosure “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.” Given the impromptu (and thus potentially inaccurate) nature of personal notes taken in the moment, public agencies routinely determine that the public interest in withholding such notes outweighs the public interest in disclosing them.
Finally, the careful reader will note that Legal Mailbag stated that such notes are “generally” not subject to disclosure. The word “preliminary” modifying the word “notes” is the reason for the qualifying language. Personal notes are exempt from disclosure only when they are in fact “preliminary,” i.e., maintained in confidence and not shared with others. As long as you keep your personal notes to yourself, they are not subject to disclosure under the FOIA. However, once such notes are shared with others, the requesting party may claim that they are no longer “preliminary” and demand disclosure.