CAS Legal Mailbag Question of the Week – November, 2016 #3

by Shipman & Goodwin LLP

Originally appeared in the CAS Weekly Newsletter.

Dear Legal Mailbag:

I am an avid fan of free legal advice, and I read your Legal Mailbag column whenever it appears. You answered a question last week about an FOIA request concerning the written evaluations of a coach. You glibly answered that exemption from disclosure for “records of teacher performance and evaluation” did not apply to the evaluation of the coach in question because he is not a teacher in that district. But you left me hanging by not addressing the more common situation when an irate parent asks to see the evaluations of a coach who also teaches in the district. In fact, I am suspicious that you didn’t answer that part of the question because you didn’t know.

As did the other writer, I recently told a parent demanding to see evaluations for a coach that the evaluations are “personnel records” exempt from disclosure, and this parent isn’t buying that excuse either. Do I have a better case for withholding the evaluation records because the coach in my case is indeed a teacher in the school district?

Hungry for More

Dear Hungry:

Your accusation is unfounded. Legal Mailbag is all-knowing, or at least knows what it doesn’t know. But your instincts are good, because Legal Mailbag admits that it ducked the question on purpose.

Legal Mailbag ducked the question because the answer is not clear. Some years ago, the Freedom of Information Commission ruled in a few cases that evaluations of coaches who were also teachers in the district could be considered “records of teacher performance and evaluation” and as such exempt from disclosure under the FOIA in accordance with Conn. Gen. Stat. Section 10-151c. However, since those cases were decided, the process of teacher evaluation has become more regulated through the new requirements enacted as part of education reform. It is simply not clear whether the records created under the separate process for coach evaluation can still be considered exempt “records of teacher performance and evaluation.”

The FOIA has a special procedure for handling requests when you are not sure whether a record is exempt from disclosure. If a public agency has a reasonable belief that a personnel record (such as the coach evaluation in question) may be exempt from disclosure, Conn. Gen. Stat. Section 1-214 provides that the public agency must notify the employee whose records are being sought (and his/her collective bargaining representative, if applicable) of the request. If the employee does not object within seven business days (either individually or through his/her union representative), the public agency must disclose the record. If the employee objects, the employee (or his/her union representative) must file a written objection to the release of the record, on a form prescribed by the public agency, attesting to the fact that there is good cause for the objection, and that the objection is not interposed for the purpose of delay. Once such an objection is filed, the public employer may not release the record. Sometimes, that is the end of the matter, but if the requesting party wants to press the point, he or she may then file a complaint with the Freedom of Information Commission. At the subsequent hearing, the fight is between the party requesting the record and the employee objecting to its release, and the public employer simply holds the record until the Freedom of Information Commission (and the court on appeal, if any) decides the matter.

Here, you should notify the teacher/coach (and the union) that his/her coaching evaluations are being requested. If the teacher/coach doesn’t object, release the evaluation. However, if the teacher/coach files a timely objection, you should keep the record confidential and sit back and relax while the requesting party and the teacher/coach fight it out.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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