The members of the Nutmeg Board of Education were sick and tired of getting slammed on social media. With every decision they made, it seemed, someone would be upset and unload on social media about the Board members, questioning their actions in offensive and personal terms. Compounding the problem, teachers and other employees will also join them, critiquing the Board members for their decisions.
Veteran Board member Bob Bombast decided to act, and he sent an email to his fellow Board members with a proposed new social media policy. In this draft policy, Bob proposed strict prohibitions against employees making "unkind" or "insulting" remarks about the Board members. Bob explained to his Board colleagues that a policy would be the best way to hold the "cry-baby" teachers and others accountable. Anticipating opposition, however, he told the Board members to keep his idea under their hats until the Board was ready to vote on the new policy. To keep his proposed policy confidential until then, Bob carefully marked it "DRAFT" and he even included Ms. Board Attorney on copy.
Most of the other Board members were just as sick as Bob of the continual abuse on social media, and by return email they enthusiastically endorsed Bob's proposed policy. Some Board members even included in these emails critical and, at times, vulgar comments about the parents and employees whose social media posts had insulted them.
Board member Mal Content, however, was not so sure, and in a conversation with local reporter Nancy Newshound, Mal let slip that he was concerned about Bob's proposal to "muzzle" employees. Nancy was understandably intrigued, and she promptly sent Bob a request for "the draft policy and all related emails in accordance with the FOIA."
When Bob received the request, he was happy he had been cautious in disseminating the draft policy. Bob promptly wrote an email back to Nancy as follows:
Hello Nancy. I can neither confirm nor deny the existence of some purported policy about social media posts. If I did draft such a policy, however, it is not subject to disclosure under the FOIA. Any such draft policy would be just that – a "draft" that is exempt from disclosure under the FOIA. As a reporter, you should know that.
When Nancy Newshound received Bob's email, she promptly wrote back, telling Bob in no uncertain terms that she would be filing an FOIA complaint. Bob was unfazed, and he gave Nancy a call. "Neither of us need to waste our time before the Freedom of Information Commission, do we?" Bob asked. "I admit that I circulated a draft policy, and in due time you will get a copy. However, it was a draft, and the law is clear that drafts are exempt from disclosure. Moreover, Ms. Board Attorney was included on the email when I sent it out. The draft and the related email correspondence were all privileged confidential attorney-client communications. But I promise that you will be the first to know once the policy is public!"
Nancy thanked Bob for the explanation. Bob was therefore surprised a month later to receive notification from the Freedom of Information Commission that Nancy had filed a complaint against him, claiming that Bob's denial of her request for the draft policy and related email correspondence violated the FOIA.
Does Nancy have a case against Bob? Should she have filed against the whole Board?
Nancy has a winning case against Bob. To be sure, Nancy could have filed a separate complaint against the Nutmeg Board of Education, as discussed below. However, board of education members are public officials, and the FOIA defines "public agencies," the entities subject to the requirements of the FOIA as including public officials. As a "public agency," Bob (or school district employees on his behalf) must respond to requests for information, and here Bob withheld public records from disclosure in violation of the FOIA.
Bob claimed in response to Nancy's request that the social media policy was in draft form and, as such, was exempt from disclosure. However, the FOIA exemption from public disclosure for "preliminary drafts and notes" is not the whole story. Conn. Gen. Stat. § 1-210(e) requires disclosure of "recommendations or any report comprising part of the process by which governmental decisions and policies are formulated," provided that disclosure is not 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." (Emphasis added). In sum, when Bob shared his draft with the other Board members, the "preliminary drafts" exemption from disclosure was lost.
Bob also relied upon the exemption from disclosure of records of "communications privileged by the attorney-client relationship." However, Bob's reliance on this exemption was also misplaced. Confidentiality of communications between boards of education and their attorneys is an important protection that permits board members and other school officials to communicate candidly with their attorneys. However, the privilege of confidentiality applies only to requests for legal advice and related responses. Communications between a school district attorney and the board members unrelated to legal advice (such as advice on public relations, as the Commission held in one case) are not privileged.
Here, Bob did not ask Ms. Board Attorney for legal advice about his draft social media policy (though perhaps he should have). Rather, he simply included her on the email he sent to his fellow Board members. Accordingly, those records were not privileged, and they should have been provided to Nancy pursuant to her request.
The records Bob withheld from disclosure were not the only FOIA problem here. The discussion of the draft policy and related issues by the Board members by email was, of course, a violation of the FOIA because this discussion among a quorum by electronic means constituted a "meeting" of the Board that should have been posted. Moreover, the emails that Board members exchanged about the policy (and parents and employees) are also public records that should have been disclosed to Nancy pursuant to her request.
Finally, the Nutmeg Board of Education will have other legal problems if and when it adopts the social media policy proposed by Bob. Prohibiting school district employees from making "unkind" or "insulting" comments about Board members would raise profound issues under the First Amendment. Public employees retain their free speech rights when speaking on matters of public concern except in limited circumstances. First, when public employees speak "pursuant to duty," i.e., as part of their job responsibilities, their speech is not subject to First Amendment protection. Accordingly, the classroom is not a forum for teacher free speech. Second, speech by a public employee may not be protected if it is disruptive of the operation of the employer. In such cases, the courts balance the importance of the speech against its disruptive effect to determine whether the speech is protected. As a general matter, however, public employees have the right to speak out on matters of public concern, even when school board members find such remarks to be "unkind" or "insulting." A prohibition against such comments is too broad and would violate employee free speech rights.
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