By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short,
law-related questions of practical concern to school administrators. Each week, we will select a question and publish an
answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues.
We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagcasciacorg. __________________________________________________________________________________________________________________

Dear Legal Mailbag:

About three months ago, I appointed a committee of teachers and parents to make recommendations on the amount of homework that teachers should assign each day. Actually, I was quite proud of myself for thinking of this collaborative approach to a thorny issue. The committee worked well, and the other day it prepared its recommended homework guidelines in draft form. I had some concerns with the recommendations, and I asked the committee to revise the guidelines. However, now I am being hounded by the reporter for the local newspaper for a copy of the draft guidelines. I am not up on all the FOIA rules, but I told her that this was a private matter between teachers and parents and, besides, the guidelines were still in draft form. The reporter is claiming nonetheless that she has a right to receive a copy of the draft guidelines under the FOIA. It’s not that bad, is it?

Signed,
Cleverly Secretive

Dear Secretive:

Actually, it is worse. Apparently unbeknownst to you, you have created a public agency subject not only to the “records” requirements under the FOIA, but also to the “meetings” requirements as well. Though you may not feel this way, it is likely that the Freedom of Information Commission will consider you to be a “public official” (and as such a “public agency”) under the FOIA. Moreover, committees created by a public agency are themselves public agencies that are subject to FOIA rules.

As you likely already know, records that you create or receive in your capacity as a school principal are public records to which the public has access except as exemptions from disclosure may apply (e.g., FERPA-protected student records, security strategy memoranda). Given that the committee that you appointed is also a public agency, however, the records it creates are subject to public disclosure as well.

I do note that the committee’s recommendations are still in draft form. However, the FOIA provides that “[disclosure shall be required of] (1) Interagency 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.” Conn. Gen. Stat. Section 1-210(e)(1). In plain English, any draft that the committee discusses is subject to disclosure because it is part of the “process by which governmental decisions and policies are formulated.”

To make matters worse, given that the committee is a public agency, it should have posted its meetings, and the reporter and any other interested party would have been free to attend. To be sure, not every get-together of a public agency is a “meeting” under the FOIA. For example, the FOIA definition of meeting excludes an “an administrative or staff meeting of a single-member public agency,” and thus most of the meetings you hold as principal would be outside of the FOIA rules. In addition, I have never seen a decision requiring posting of meetings held by a single-member public agency. However, the meetings of this committee are a different story. Given that you created this committee and that it is advising you on the public’s work, its meetings should indeed be posted and the public should be permitted to attend – if they have nothing better to do, of course.