As a frequent advisor to school districts on freedom of information requests, the question I face most often is how a public body can protect a sensitive document from release. Rarely am I asked what might happen if a public body decides to release a record that could have been protected under a freedom of information law. A recent decision from the Iowa Supreme Court is a reminder of the importance of focusing on that question when choosing to release records that might be subject to an exemption under a records request law.
In Sebring v. Des Moines Independent Community School District, a former Des Moines school district superintendent, Nancy Sebring, sued the school district and a number of its officials, including the former school board president and school attorney for invasion of privacy. The school district and its officials had released certain sexually explicit emails Sebring sent or received on the school district’s email servers in response to a request for records under the Iowa Open Records Law. The request, from the Des Moines Register, had sought emails relating to Sebring’s impending departure from the school district to serve as superintendent in Omaha, Nebraska. The sexually explicit emails were not related to Sebring’s departure for Omaha, but incidentally included the term “Omaha” and so were uncovered in a broad search by the school district’s information technology department. Despite the fact that the emails were not responsive to the request, the school district released them to the newspaper, anyway.
In April, an Iowa trial court ruled that Sebring had sufficiently alleged claims against the school district to move forward with her case. The court noted that when the school district uncovered the emails, officials recognized that the emails could be evidence of misuse of technology by Sebring, and so could have led to discipline for Sebring. In Iowa, documents related to disciplinary matters are exempt from disclosure under the public records law. Accordingly, the court held, the school district should not have produced the records.
The school district appealed the decision to the Iowa appellate court, and the case made its way up to the Iowa Supreme Court. Earlier this month, the Supreme Court reportedly decided that it would not hear the school district’s appeal. The trial court’s decision thus stands, and Sebring’s case can proceed to trial.
Insights for School Leaders
Our focus in public records cases usually is on finding an exemption that applies to the (often, sensitive) records that a public body does not want to release. But the Sebring case refocuses our attention on the potential fallout if a public body chooses to release a record that could be protected by an exemption. There are a couple of exemptions that are similar to the one addressed in Sebring in Illinois, for instance. Under our Freedom of Information Act (FOIA), not only are certain disciplinary records exempt from release through a cross-reference to the Personnel Records Review Act, but there is also a general catch all exemption for records the release of which would be an unwarranted invasion of personal privacy. Records that are not related to one’s public business may fall under that latter exemption. Notably, the decision whether or not to release exempt records typically is a choice for public bodies. Under the Iowa and Illinois public records laws, for instance, a public body may rely on an exemption to withhold a record, but it is not required to do so. The Sebring case is an important reminder that there can be legal risks in how public bodies exercise that choice, and specifically where a public body chooses to release a document that might be subject to an exemption. That release may not violate the public records law, but it might provide fodder for a lawsuit by the subject of the records released.