See You In Court - November 2024

Sometimes we hear that opposites attract, and such was the case between two members of the Nutmeg Board of Education.  Board members Penny Pincher and Mal Content rarely see eye to eye on the challenges the Board faces, with Mal always ready to approve increased spending, while Penny Pincher typically votes against any new expenditures.  But somehow love was in the air, and without fanfare these two Board members started to date.

During a Board meeting last month, Mal smiled at Penny and then texted “You look hot tonight” to her.  Penny checked her phone when Mal’s text arrived, and she promptly sent a Heart emoji back to Mal.  As the meeting wore on, they exchanged a few more texts.  Mal texted Penny that fellow Board member Bob Bombast was a windbag who should get a life, and Penny texted Mal to ask whether they would be able to get away together on the upcoming weekend.

Unfortunately for Mal and Penny, local reporter Nancy Newshound attended the meeting.  Nancy noticed that Mal and Penny were exchanging looks and then typing on their phones during the meeting, and the next day she sent a request under the Freedom of Information Act to the Superintendent for copies of any and all text messages between Penny and Mal from July 1 to date.

After a cursory search, Ms. Superintendent emailed back to Nancy to say that the Nutmeg Board of Education has no records responsive to her request, but Nancy persisted.  “I am no dope,” she replied.  “I know that something is going on, and I will get to the bottom of it.”  Nancy then emailed both Mal and Penny directly, repeating her request under the FOIA for “copies of any and all text messages between the two of them.”

Mal wrote back to Nancy to tell her that his private texts were none of Nancy’s business because he sent them from his private cell phone.  Moreover, Mal explained, he never shared those texts with the Superintendent or Board as a whole.  For her part, Penny reported to Nancy that she had no responsive records to share because she had deleted the texts.

Nancy responded by filing a complaint against Penny and Mal with the Freedom of Information Commission.  When Mal and Penny received notice of the complaint, they promptly forwarded the complaint to Ms. Superintendent, who in turn forwarded it to Mr. Board Attorney for review.

Can Mal and Penny argue successfully that their private texts are none of Nancy’s business?  Can and will Mr. Board Attorney agree to represent Penny and Mal at the hearing before the Freedom of Information Commission?

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Starting with the second question first, board of education members are indemnified in accordance with Conn. Gen. Stat. § 10-235 against claims made against them for actions they take as board members as long as their actions are not wanton, reckless or malicious.  That protection includes the right to be reimbursed for reasonable related legal fees.  When claims are brought, however, most school district defendants (or respondents in this case) are simply represented by board counsel or counsel appointed by the insurance carrier.  There is a broad public policy in favor of protecting board members who devote their time to do the public’s business, and there are no reported cases in Connecticut in which a board member was held personally liable for actions taken on behalf of the board of education on which they serve.

The status of the text messages sent between Penny and Mal is the more challenging question here.  The Freedom of Information Act defines a “public record” as follows:

“Public records or files” means 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.

This broad definition, referring to information that is recorded in any way, has an important limitation -- the record must relate to “the conduct of the public’s business.

Applying this definition to the texts in question, we note that Mal’s text expressing frustration over the long-windedness of Board member Bob Bombast does relate to the conduct of the public’s business.  As such, that text is a public record subject to disclosure under the FOIA.  The texts between Penny and Mal as relate to their personal relationship, by contrast, do not (except that they were sent during a Board meeting, as discussed below). 

Mal refused to provide the text to Nancy on the basis that the text was sent on his private cell phone, separate from the Nutmeg Public Schools.  That defense, however, will not be successful.  The requirements of the FOIA are imposed on “public agencies,” and Mal may be surprised to know that he, as an individual, is a public agency.  The FOIA defines “public agency” as including an “official of the state or of any . . . school district . . . .” 

As a Board member, Mal is certainly a public official, and, as such, a public agency.  Consequently, the broad definition of public records quoted above applies to texts and email that Mal creates or receives if they relate to the Nutmeg Public Schools.  Board members are therefore well-advised to let their friends know that any emails or texts they send that relate to their board service will be considered public records subject to disclosure.

Penny’s deleting the text about Bob was also a problem.  The Public Records Administrator has ruled that the record retention requirements under law apply to emails (and analogously to text messages) that relate to the public’s business, and that the applicable record retention are those that apply to analogous written records.  Official correspondence, for example, must retained for at least two years.  Casual texts (like most voice mail messages) are considered “transitory” records, however, which need not be retained.  However, once Nancy requested the text messages, Penny had an obligation to preserve them.

Finally, the fact that Mal and Penny brought their personal relationship to the meeting of the Nutmeg Board of Education through their text messages created two further complications.  First, given that the texts were sent during a public board meeting, it is possible that the Freedom of Information Commission would rule that these personal messages relate to the conduct of the public’s business because their flirtations by text occurred when they should have been paying attention to Board business.

Second, it is even possible that the Freedom of Information Commission could find that the exchange of texts during the meeting violated the rights of the public.  In Saluga v. Board of Assessment Appeals, Town of Brookfield, Docket #FIC 2013-221 (January 8, 2014), the Freedom of Information Commission held that “secretive conduct” by members of a public agency, including speaking in voices softer than usual, effectively denied members of the public the right to attend the meeting.  Board members’ texting each other during a meeting similarly denies the public the right to know fully what is going on at a public meeting, and as such could constitute a violation of the FOIA.