Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
Late last school year, I received an anonymous email from someone at ConcernedCitizen@gmail.com, alleging that one of the teachers in my school was having parties at her house that included students. The anonymous writer expressed concern that the teacher was unfit to work with children and asked for copies of any complaints received from parents about this teacher.
As the principal of an elementary school, I have a strict policy of ignoring anonymous complaints about employees working at my school. Here, I did one better – I deleted the email and went about my business without giving this anonymous email a second thought.
That changed this week. My superintendent called me to tell me that he had received word from the Freedom of Information Commission that ConcernedCitizen@gmail.com has filed a complaint claiming that I violated the Freedom of Information Act (FOIA) by failing to respond to his request for parent complaints about teachers at my school. As it turns out, ConcernCitizen@gmail.com has now revealed his identity as a parent who in fact had sent me a complaint about the teacher, and he is the complainant in the pending case. Moreover, I had also received complaints about this teacher from two other parents.
Now that this parent has come clean, I wonder whether these complaints are subject to disclosure under the FOIA. In any event, however, I can’t imagine that I should have responded to the anonymous email from ConcernedCitizen@gmail.com when I received it. Please tell me that I don’t have to respond to an anonymous email.
Who’s There?
Dear Who:
Legal Mailbag would like to provide the comfort you seek. However, in the first instance, complaints about teachers are public records subject to disclosure under the FOIA. Schiller v. Meriden Board of Education, Docket #FIC 87-83 (August 23, 1989). That said, as you may know, Conn. Gen. Stat. § 1-210(b)(17) provides that personally-identifiable student information in records maintained by a school district that is confidential under FERPA is exempt from disclosure under the FOIA, and any such student information contained in a complaint must be redacted before it is shared.
Under the FOIA, there is no requirement that parties identify themselves when requesting public records, and on occasion journalism students and others will simply appear at a public agency and ask to inspect records, pointedly declining to identify themselves. Similarly, anonymous email requests for records may be made under the FOIA, and such requests for records must be honored. It is only when a complaint is filed with the Freedom of Information Commission that the Commission requires that the complainant identify him- or herself to pursue that complaint.
Here, the anonymity of the writer did not excuse you from complying with this request for records under the FOIA. If the complaints were in email format, you could have (and should have) simply forwarded these records to the ConcernedCitizen@gmail.com email address to comply with your obligations under the FOIA. To be sure, it would be different if the complaints were letters in hard copy only, because you would not have an affirmative obligation to scan the letters for electronic submission. In such case, it would have been appropriate to notify ConcernedCitizen@gmail.com that some records responsive to his request are only in hard copy and ask whether ConcernedCitizen@gmail.com would like to come in to inspect the records or for you to provide him copies of the records at a cost of $0.50 per page in accordance with the FOIA.
Please also note that Section 1-214 of the FOIA requires in such cases that employers notify affected employees of requests for records that relate to them and are contained in “employees’ personnel or medical files and similar files.” Where, as here, the records are clearly subject to public disclosure, the public employer is simply required to notify the employee of the request “within a reasonable time after such disclosure.” By contrast, when there is a reasonable basis for concluding that disclosing the record would be an invasion of the employee’s privacy, public employers must notify the employee and his or her collective bargaining representative (if any) of the request. The public employer must then maintain the requested records as confidential until (1) the employee agrees to permit disclosure, (2) seven business days elapse without objection from the employee or the collective bargaining representative after they receive the notification, or (3) a complaint is filed and the Freedom of Information Commission orders that the records are subject to public disclosure.
Now that a complaint has been filed, Legal Mailbag notes that the Commission assigns an ombudsman to all complaints. Legal Mailbag urges your district to reach out to the assigned ombudsman because it is often possible with the assistance of the ombudsman to resolve FOIA complaints prior to hearing.
Legal Mailbag questions your practice of simply ignoring anonymous complaints and even throwing them away. First, anonymous complaints, as unreliable and obnoxious as they may be, are public records. Once a public agency receives a complaint or any other recorded information related to the business of the public agency, that information becomes a “public record” subject to the record retention requirements of the Public Records Administrator.
Finally, on occasion school officials receive important information through anonymous complaints. They must therefore make a judgment call, and sometimes it will be appropriate to investigate the allegations made anonymously to assure the safety of students or staff. Such judgments must be made on the facts presented, but a general rule of simply ignoring anonymous complaints is not appropriate.
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