Education Law Notes  

When evaluating superintendents of schools, school boards usually seek to synthesize the views of individual board members into a collective voice for the board.  In Toensing v. Chairman, All Boards Chairs Committee, Regional School District #1, #FIC 2013-223 (February 11, 2014), however, the Freedom of Information Commission [“FOIC”] reminded us that there are Freedom of Information Act [“FOIA”] consequences from  the assemblage of these (sometimes divergent) views, and provided further insights into what is acceptable under the FOIA.

By way of background, the Superintendent of Schools for the Region One School District serves the six individual member towns’ boards of education, as well as the Region One Board of Education, which maintains the high school.  In order to evaluate the Superintendent’s performance, the Chairs of each of the individual boards of education and of the Region One Board of Education convene as a committee [the “All Boards Chairs”  or “ABC” Committee].  The complainant, who happens to be a member of the Region One Board of Education, requested a copy of all documents concerning the Superintendent’s evaluation.  In reply, the ABC Committee chairperson told the complainant that “there were no documents” responsive to the complainant’s request, adding that even if there were such documents, they would be exempt from disclosure as “preliminary notes or drafts.” The  complainant then filed a complaint with the FOIC against the chairperson of the ABC Committee, and the ABC Committee itself (“the respondents”).

Although arising from the somewhat singular context of the ABC Committee, the specific facts found by the FOIC are illustrative of the situation that school boards generally face when preparing a superintendent’s evaluation.  Each of the individual boards of education completed an evaluation worksheet consisting of 74 performance criteria, to which numbers were assigned, reflecting how satisfactorily the Superintendent performed the task.  Each member of the ABC committee brought his or her school board’s completed evaluation form to the ABC Committee meeting, and in executive session, each of them shared the results of his or her board’s evaluation.

As the ABC Committee members shared their respective evaluation results, the ABC Committee Chair tallied the results on a blank evaluation worksheet.  The Chair then used that evaluation sheet to write a two-paragraph evaluation of the Superintendent.  The members of the ABC Committee did not give their individual evaluation worksheets to the Chair, and neither the Chair nor the Committee itself maintained such records.  The Chair, however, did maintain possession of the final worksheet that she prepared during the Committee’s executive session and upon which she based the Superintendent’s evaluation.

The respondents claimed that the Chair’s final evaluation worksheet was exempt from disclosure as a “preliminary draft or note,” as the Chair used the worksheet to prepare the final written evaluation report, which was made available to the public.  The respondents claimed that the worksheet was the Chair’s personal notes; they also claimed that the worksheet was a preliminary draft, which the FOIA generally exempts from disclosure. Connecticut General Statutes §1-210(b)(1).

There is, however, an exception to this exception.  Connecticut General Statutes §1-210(e)(1) provides:

disclosure shall be required of . . . [i]nteragency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency.

The Connecticut Supreme Court has, in turn, stated that “preliminary drafts or notes reflect that aspect of the agency’s function that precedes formal and informed decisionmaking . . . .  It is records of this preliminary, deliberative and predecisional process that we conclude the exemption was meant to encompass.” Shew v. FOIC, 245 Conn. 149, 165 (1998).

In Toensing, the FOIC found that the chair’s worksheet was a contemporaneous recording of the ABC Committee’s discussion, compiled by the Chair during, not preceding the committee’s “formal and informed decision-making.” The Chair did not change the worksheet or the numerical ratings of the Superintendent when she wrote the written evaluation report, and the evaluation report summarized those ratings.  In this context, the FOIC found that the worksheet was not a preliminary draft or note, and thus was not exempt from disclosure.  Moreover, the FOIC found that the worksheet was a report comprising part of the process by which governmental decisions and policies were formulated, and was not a preliminary draft of a memorandum, prepared by a member of the staff of a public agency.

Based upon this reasoning, the FOIC concluded that the respondents violated the FOIA by failing to provide the Chair’s evaluation worksheet to the complainant, and ordered the respondents to provide her with a copy of this worksheet.  Interestingly, with respect to the members’ individual worksheets, the FOIC found that since the respondent ABC Committee and its chairperson did not maintain such records, the failure to provide such records did not violate the FOIA.

Lessons learned?  At first blush, the outcome in Toensing could be construed as helping shield from disclosure individual board member’s evaluation worksheets or forms.  The FOIC, however, had previously appeared to hold that individual board member evaluation forms that are then used to assemble the board’s evaluation are subject to disclosure.  LaPointe v. Chairperson, Board of Education, Windsor Locks Public Schools, #FIC 2000-457 (January 24, 2001).   The only factor in Toensing that distinguished it from LaPointe was that in LaPointe, the individual evaluation forms were submitted to the board’s chairperson, and the documents were viewed to be public records; conversely, in Toensing, since neither the committee nor the chair received or maintained the records, such individual forms were not records subject to disclosure.

Nonetheless, before school board members decide to retain possession of their individual evaluations in order to avoid exposing them to the FOIA, a cautionary note must be sounded.  Even prior to LaPointe, the FOIC had held that individual evaluations were public documents subject to disclosure under the FOIA.  Miller v. Superintendent, Branford Public Schools, #FIC 1998-288 (February 24, 1999); DeJesus v. Superintendent of Schools, Regional School District #17, #FIC 1996-543 (October 22, 1997).  Consequently, the susceptibility of individual evaluation forms to FOIA requests having been established in these prior cases, it is reasonable to conclude that the FOIC did not intend for Toensing to be a repudiation of them.  Instead, to the extent that the location of where the individual evaluations were maintained was deemed to be relevant in Toensing, the dispositive – and distinguishing -- factor may have been the individual evaluations in question were in the possession of, and maintained by, public bodies and officials other than those named as respondents.