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SEE YOU IN COURT! - January 2019

CABE Journal

January 2019

At a recent meeting of the Nutmeg Board of Education, “security matters” was on the Board agenda. When the Board reached that item, Mrs. Superintendent told the Board that she has some ideas for improving school security, and she suggested that the Board go into executive session for the purpose of holding that discussion. Local reporter Nancy Newshound from the Nutmeg Bugle stood up and demanded to be recognized. Mr. Chairperson sighed and said, “Go ahead Nancy. What’s your problem now?”

“If the Board goes into executive session, I will file a complaint with the Freedom of Information Commission! Mrs. Superintendent didn’t mention a specific plan, and you can’t just go into executive session to shoot the breeze about school security. School security affects everyone, and the public has a right to know what you are talking about.”

Noah Tall, a local curmudgeon who is free with his opinions, chimed in. “When I was in the service, I learned a lot about security. If you are smart, you will let me be part of the executive session discussion.”

Mr. Chairperson interrupted Noah and Nancy. “Look, you two. When you get yourself elected to the Nutmeg Board of Education, you will have a say in how we operate. Until then, we thank you for your comments and ask that you leave now so that the Board can have its executive session.”

Once the room was cleared, Mrs. Superintendent told the Board that she has been talking with the Police Chief, and they wanted jointly to suggest that the district hire another SRO to enhance security at Nutmeg Memorial High School. The Board members debated this recommendation, and after some discussion, they authorized Mrs. Superintendent to enter into an agreement with the Nutmeg Police Department providing that the Chief could hire another SRO and send the bill to the Board. With that, the Board reconvened in open session and adjourned the meeting.

Nancy carried through on her threat, and the next day she filed a complaint with the Freedom of Information Commission. Noah, however, did Nancy one better. Noah made an FOI request for the blueprints of Nutmeg Memorial High School. He explained that he was concerned about some “soft” access points, and that he needs the blueprints to make his suggestions on improving safety at Nutmeg Memorial High School. With his request, he noted that each passing day exposes the students to potential harm, and Noah informed Mrs. Superintendent that he would stop by in the morning to pick up the blueprints.

Mrs. Superintendent promptly responded to Noah by email to say that she was not interested in his suggestions and that she would not be making the blueprints available. However, Noah did not take “no” for an answer, and he too filed an FOIA complaint. Citing the provision in the FOIA that provides that members of the public should have “prompt” access to public records during normal business hours, Noah asked the Commission to find the Nutmeg Board of Education in violation of the law.

Does either Nancy or Noah have a valid complaint here?

*   *   *

For once, it seems that the Nutmeg Board of Education has acted appropriately (at least in most respects). School security is a significant issue, and confidentiality in such matters can be important. The statutes, therefore, permit boards of education to keep security matters confidential, and the Board did not violate the rights of either Nancy or Noah in denying them access to certain information.

The first question relates to the Board’s convening into executive session. Public agencies must first announce the reason for which they are going into executive session, and they may then convene into executive session only upon a two-thirds vote. Presuming that the Board stated that it was going into executive session to discuss security strategy, we may conclude on these limited facts that the executive session was appropriate, at least in part. The FOIA provides that executive session is appropriate to discuss “matters concerning security strategy or the deployment of security personnel, or devices affecting public security.” Accordingly, the Board had every right to discuss the security strategy related to the hiring of an additional SRO in executive session.

That said, the Nutmeg Board went too far in (at least) two respects. First, there is more to the story than simply the security strategy of hiring an additional SRO, and once the Board decided that an additional SRO was warranted for security purposes, its executive session privilege for this purpose ended. Additional questions concerning funding or billing, for example, should have been discussed in open session.

The Board also overstepped when it authorized Mrs. Superintendent to communicate to the Police Chief that he could hire an additional SRO and send the Board the bill. Such authorization was essentially a “vote,” which should have occurred in open session.

Similarly, there is more to the story than simply denying Noah Tall access to blueprints of Nutmeg Memorial High School. The Freedom of Information Act lists a number of records that public agencies may keep confidential. Conn. Gen. Stat. § 1-210(b). Included on the list is the following: “(19) Records when there are reasonable grounds to believe disclosure may result in a safety risk, including the risk of harm to any person, any government-owned or leased institution or facility or any fixture or appurtenance and equipment attached to, or contained in, such institution or facility.”

Given this provision, school officials can maintain the confidentiality of blueprints, schematic drawings and the like, but it is not simply a matter of denying access to such information. Significantly, the determination of whether there are such reasonable grounds is not left to the public agency. The FOIA goes on to provide that such determination must be made “by the Commissioner of Emergency Services and Public Protection, after consultation with the chief executive officer of a municipal, district or regional agency, with respect to records concerning such agency.” Conn. Gen. Stat. § 1-210(b)(19). Here, we would expect that providing public access to blueprints for a public school would indeed be considered a safety risk, and that Noah’s request will be denied. But it is important to recognize that the FOIA provides that public agencies must ask that the Commissioner of ESPP make this determination.

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