Privacy Rights v Open Records

Robert Freeman

 

Robert Freeman, Chair of the Committee on Open Government and a person who has extensive knowledge of New York State and Federal Freedom of Information laws, has recently quoted Civil Rights Law §50-a.  saying said that the annual performance ratings of all public employees in NYS are able to be FOIL'd, whether they are written in words and/or numbers, and there’s nothing the NY State Education Department could do to block the results of the teacher evaluation data from being released every year and printed in the media. He added that the performance ratings of all charter school teachers could also be FOILed, whether they participate in the TDR program or not.

 

Here is an article from Edweek on the issue of privacy v open records for public employees:

 

Published: May 10, 1989

Open Records: A 'Legitimate Public Interest'?

By Lisa Jennings, EDweek

LINK

 

When Madonna Tibor asked school officials in the small town of Hebron, N.D., to let her see the records of her son's teacher, she had no idea she was launching a freedom-of-information crusade that would send her first to the courts and then to the state capital. That was in 1987, when she and about 40 other Hebron parents were concerned over problems their children were having in a business-education class at the town's only school. They wanted to know whether any complaints about the teacher had ever been lodged with the school district. As a city worker, Ms. Tibor knew that the records of public employees were open in North Dakota, so she simply asked for the teacher's files.

"If the district had given us the information then," she says, "it would have done away with a lot of rumors and suspicion."

But the district refused, citing the privacy rights of the teacher.

Ms. Tibor has since won a victory in the North Dakota Supreme Court and a gubernatorial veto of legislation exempting teacher records from the state's open-access law. And she remains firm in her conviction that taxpayers deserve to know all there is to know about those who teach their children.

She is not alone. The Hebron case is one of several nationwide this year to focus attention on the delicate balance between a school employee's privacy and the public's right to secure protection for its children and accountability from the system.

Lawsuits over access to school personnel records have also been filed in Colorado, Connecticut, Texas, and Washington State.

Teachers' unions in those states have argued that because educators have already met certain minimum requirements when becoming certified and are continually being evaluated, their files contain more personal data than those of other public employees and should be accorded a different status under open-records laws.

But freedom-of-information advocates counter that open records are particularly important in education, where "accountability" has become the latest reform catch phrase.

Gov. George Sinner of North Dakota expressed these sentiments in his veto message on the teacher-exemption bill last month.

"Teachers, administrators, school boards, and students need to be held accountable to parents and to the public for their performance--or lack of performance," he said. "Open records help assure such accountability in North Dakota."

Every state has a law similar to North Dakota's. Often called "sunshine" laws, they determine whether and when public meetings or records will be open to citizen scrutiny.

Every state also has exemptions to these laws, usually to protect medical records, family information, and other personal facts not deemed of "legitimate public interest," according to a 1986 report on state sunshine laws by the Council of State Governments.

But in many states, the personnel records of school employees have remained largely unexamined--either because teachers' unions have successfully argued the issue of privacy rights, or because parents and other citizens have remained unaware of their rights under sunshine laws.

Peggy Portscheller, president of the North Dakota Education Association, says privacy was the key concern when her union took the position that the Hebron case amounted to little more than a "witchhunt."

"Our main bone of contention was the access to teacher evaluations,'' Ms. Portscheller says, noting that state law requires two such evaluations each year. "In order to protect the integrity of that process, we believe those records are best kept between employer and employee."

When Ms. Tibor's lawsuit reached the state supreme court in February 1988, the judge agreed with lower courts that teacher records could be inspected by anyone under the North Dakota law, because the legislature had failed to pass any laws exempting them.

That ruling, and the intense lobbying by the ndea that followed it, prompted lawmakers to take immediate action to close school files.

A bill adopted by a wide margin in both houses of the legislature early this year restricted access to the records of teachers, administrators, and higher-education faculty members, to supervisory administrators and school-board members. The proposal would have allowed those officials to discuss information in the files with parents.

But in his veto message, Governor Sinner said he saw no need for such confidentiality.

"The records are, after all, not 'per4sonal' files, but 'personnel' files," he wrote. "Given the critical role of education and the high percentage of public money expended on it, this bill moves in exactly the wrong direction."

Ms. Portscheller, who says she was "disappointed" by the veto, predicts that the action will "water down" the teacher-evaluation process. "Administrators will be reluctant to put anything substantial down in writing," she says, "and that is certainly not in the best interests of the public."

Ms. Tibor disagrees. "The evaluations won't be watered down if you have an honest administrator," she says. "He'll keep the truth in those files." She and her allies argue that, if the district has nothing to hide, there is no reason to close the files.

Parents and newspaper editors in Texas have contended in access battles there that school districts may in fact have something to hide.

Last year, the Houston Chronicle reported that at least five, and possibly as many as 25, administrators in the Houston Independent School District had purchased mail-order doctoral degrees from an unaccredited California institution.

When the newspaper sought to obtain the academic records of district personnel, however, the school system filed suit to block the request.

A county judge ruled in the district's suit last August that the newspaper lacked legal standing to seek an order forcing the disclosure of the records. The Chronicle has appealed that ruling.

The newspaper's own suit, meanwhile, was merged last year with a class action filed by a group of parents seeking the academic records of teachers in the Klein Independent School District.

The cases were split again last month, and last week a state judge heard arguments in the Houston case. According to Joel White, a lawyer for the newspaper, the judge has decided to review several transcripts to determine whether the information in them should be disclosed.

Litigation in the Klein case is expected to continue for another year or more.

Although teachers' records are generally considered open under Texas sunshine laws, Houston school officials have maintained that academic transcripts are protected by legal precedents established in 1987 covering such personal information as parents' address and religious affiliation, often included in college transcripts.

Lawyers for the district have also pointed out that educators are the only public employees that have their transcripts on file, submitted as part of the certification process.

But Tony Pederson, managing editor of the Houston Chronicle, sees the dispute as an instance of schools seeking to avoid their accountability to the public.

"It is impossible to accurately judge the competence and qualifications of those who make decisions in public schools without public access to those records," he says. "It's simply a matter of discovering flaws in the way the Texas Education Agency watches over the backgrounds of its employees."

Darah S. Headley, a lawyer representing the Klein district, agrees that accountability may be an issue in both cases.

"But we feel that using academic transcripts is a flawed measure8ment of an administrator's qualifications," she says. "And there is a lot of personal information included in those records that is unrelated to their course of study."

Attorney General Jim Mattox last month issued an opinion stating that academic records should be considered public information, according to his spokesman, Ron Dusek.

The opinion is based on court decisions, Mr. Dusek said, particularly a 1987 ruling by the state supreme court that the federal Family Educational Rights and Privacy Act--known as the Buckley Amendment--does not cover an administrator's academic records.

Mr. Mattox had delayed his decision, however, to give the Texas legislature time to work on a measure that would specifically exempt sections of school employees' academic records, such as grades earned, from the sunshine laws.

Variations of the bill have passed both houses of the legislature, but lawmakers had not reached an agreement as of late last week.

Meanwhile, the Texas Education Agency has adopted a policy requiring all school administrators to have degrees from an accredited institution, according to Ms. Headley.

Superintendent Joan Raymond of Houston has also offered the newspaper a list of the system's administrators, with the college they graduated from. But this has apparently not satisfied the newspaper, which plans to pursue its lawsuit.

School officials in Washington State have made similar attempts to appease a group of newspapers seeking information on 89 former teachers who voluntarily surrendered their teaching certificates or had them revoked by the state.

Cowles Publishing Company, publisher of the Seattle Spokesman-Review and the Spokane Chronicle, requested the records from the state superintendent of public instruction in January 1988. The newspapers were investigating reports that teachers who had been accused of sexual misconduct with students had been allowed to leave the system quietly, unpunished and unreported.

"It's important for the public to know how these investigations were pursued," says Duane M. Swinton, a lawyer representing Cowles.

Last summer, a state judge ruled that the records should be released, with students' names deleted. (See Education Week, Aug. 3, 1988.)

But lawyers for Frank B. Brouillet, the former state superintendent, have appealed that decision and sought a temporary injunction to block release of the records.

Ralph E. Julnes, the superintendent's legal counsel, argued that the files contain much information considered confidential under state statutes, such as student records, psychological profiles, and interoffice communications.

Release of this kind of information, he argued in a legal brief filed last month, would hinder school officials' ability to investigate child-molestation charges because witnesses would be less likely to testify for the public record.

The Washington Education Association, which has intervened in the suit on the superintendent's side, contends that teachers falsely accused of molestation are also included in the files, and that release of such information without due process could be seriously damaging.

This year, the wea lobbied for a bill that would have restricted access to school employees' disciplinary records, says Robert D. Fisher, the union's legislative liaison.

The bill died, however, after a series of amendments to stiffen penalties for child molestation were proposed. Last month, the legislature adopted a bill that would bar from public-school teaching anyone convicted of killing, injuring, or sexually assaulting a minor.

Lawyers on both sides of the Washington case say they will appeal to the state supreme court if the appeals-court verdict is not in their favor.

In Connecticut, open-records advocates say their experience suggests that state high courts, whose justices often have a political background, may not always be sympathetic to open-access issues.

"Our supreme court is psychopathically opposed to freedom of information," charges Chris Powell, managing editor of the Journal Inquirer of Manchester, which has been fighting for years to gain access to personnel records of local school-district administrators.

Last month, the Connecticut Supreme Court refused to rule on a lower-court order in the case that would have required school officials to publicly disclose job-performance records of teachers.

The judges instead asked the state's Freedom of Information Commission--an independent, five-member panel representing citizens' access interests--to reconsider the facts of the six-year-old suit in light of a 1984 statute exempting teacher evaluations and records from Connecticut's access requirement.

Although many states have agencies that handle freedom-of-information complaints, Connecticut's commission is the only one with the authority to mediate complaints and represent citizens in court.

Mitchell W. Pearlman, executive director and general counsel for the commission, said the supreme court's action probably would force the newspaper to drop its request, because pursuing the dispute could take another six years.

The newspapers first requested the documents from the Somers School District in 1983, after a citizens' group complained that the district administration was top-heavy.

The newspaper has contended that knowing the basis on which the administrative promotions were made is an accountability issue, and lower-court judges agreed that the records should be made public.

But the high court concluded that the commission, in its initial finding, had not adequately weighed the balance between privacy interests and the public's right to know.

Mr. Powell of the Journal Inquirer complains that the 1984 law has been applied retroactively. But the high-court judges said in their opinion that the law merely clarified what was already legal intent--to close the records to the public.

The newspaper editor charges that the exemptions for teachers were not legal clarifications, but the result of "powerful lobbying" by the Connecticut Education Association.

Teachers' unions are not always on the side of nondisclosure, however.

In Colorado, the state affiliate of the National Education Association last week said it planned to file suit in the second round of a legal battle over a list of minority teachers employed by the Denver Public Schools.

Both the Denver Classroom Teachers Association and the Colorado Education Association have sought to obtain the list, whose existence has become the subject of heated debate in the city. The unions want it, officials say, as a means of alerting minority teachers to special programs, such as training for administrative positions.

But district officials have denied in court that such a list exists. Last month, in fact, a state court of appeals upheld a district court's decision that the school system could not be forced to disclose a "non-existent" list.

The Rocky Mountain News, however, has reported that it was able to obtain a copy of a list of minority school employees--and that sources within the school system maintain such a list was available in 1987.

Jan Erskine, the Denver union's president, charges that the district also has a list specifically of teachers "with their ethnicity identified."

"The district just does not want to be cooperative," she says. "They want to maintain an adversarial relationship with the unions."

According to Marti Houser, chief attorney for the Colorado Education Association, the unions have obtained a list of black teachers from an unnamed source but still need a list of other minorities.

"It defeats the purpose of open-records laws if your request for information is blocked because you haven't used exactly the right buzzword," Ms. Houser says.

Ms. Erskine maintains that the union should have special access to such records. "We're not just anyone off the street asking for information," she points out.

According to a spokesman for the district, officials had sought not to infringe on employees' privacy rights. Colorado laws exempt most school personnel files from the public record.

Mr. Pearlman of the Connecticut freedom-of-information commission suggests that legislative attempts to weaken open-records laws with exemptions for school employees may be part of the cyclical move toward nondisclosure that has followed the public-right-to-know high of the Watergate era.

But such statutes, he insists, are an example of "what is bad for education in this country."

Others note that the continuing drive toward professionalization of teaching will more than likely harden the divided positions on the issue of records disclosure, as teachers trade greater certification rigor and accountability standards for more pay and autonomy.

Against this backdrop, Ms. Tibor in North Dakota may represent the public's determination to keep its own watchful eye on teaching standards.

"You can't trust a lot of school boards to keep watch," says Ms. Tibor, who has finally obtained at least some of the information she sought but has paid a heavy price in legal fees and time away from her family for the victory. "Only about 1 percent are incompetent, but you've got to be able to watch that 1 percent."