Welcome To The Board: What New Board Members Need To Know About The FOIA

Congratulations on your election to the board of education and thank you for volunteering your time to your community.  As you begin to embark on your board journey you will unfortunately, find that way too much of your time will be consumed in trying to avoid legal landmines, including the legal mind field that is Connecticut’s Freedom of Information Act’s (FOIA).  While there are many opportunities to receive training on the FOIA (including through CABE – and including my book on the FOIA, CABE: Books: Understanding the Connecticut Freedom of Information Act), here are some very basics on the FOIA that will hopefully get you started.    

The FOIA in a nutshell: The FOIA essentially has two requirements: 1) meetings of public agencies must be held in the open, and 2) records of public agencies are subject to disclosure and inspection by the public at large. The FOIA also sets forth numerous exceptions to its open meetings and records requirements. 

What is a “meeting”? A meeting under the FOIA includes 1) “Any hearing or other proceeding of a public agency,” 2) any convening or assembly of a quorum of a multimember public agency, and 3) any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.”  While most meetings are self-evident (for example, regular and special meetings of your board), you must be aware of accidentally creating a “meeting” under the FOIA, which leads to …

Be aware of the “inadvertent” meeting (i.e., do not “reply all”): Connecticut’s Freedom of Information Commission (FOIC) had ruled that a series of telephone calls or “telephone polling” (or e-mails and “e-mail polling”) by and between a quorum of board members concerning board business may be deemed to be a “meeting.” As such, if a quorum of board members e-mail each other back and forth to discuss board business, they have created a meeting in violation of the FOIA’s posting and open meetings requirements. While there are exceptions to this rule, be very mindful that there is a risk in sending an e-mail to the entire membership (or quorum) of the board discussing board business and if you receive such an e-mail, do not reply (and be very afraid of hitting the “reply all” button).

What is a “public record”?  The FOIA defines a public record as “any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, …  whether such data or information be handwritten, typed, tape-recorded, videotaped, printed, photostated, photographed or recorded by any other method.”  As you can see, clearly this is a very broad definition. While the FOIA definition (which was created back in 1975) may contain archaic terms, it has been construed to cover modern forms of communications, such as …. 

Electronic messages:  Any electronic messages (including e-mails and text messages) sent or received by a public agency (including board members) relating to the conduct of the agency’s business are subject to disclosure.  While there are certain exceptions to disclosure (for example, communications from your board attorney that are protected by attorney-client privilege), board members should proceed cautiously understanding that any e-mail or text message that they create relating to board business could end up in your local newspaper.  Please also remember that using a personal e-mail account or phone number to send/receive e-mails or text messages concerning public business does not shield such e-mails or text messages from disclosure under the FOIA. 

What happens if you make a mistake?    If it finds that a public agency violated FOIA, the FOIC has the authority to:

  • order the agency to produce or copy any public records that were improperly withheld.
  • impose a fine of not less than $20 and not more than $5,000 against the agency’s record custodian or official if the agency acted 1) “without reasonable grounds” or engaged in 2) “a practice or pattern of conduct that constitutes an obstruction” of any FOIA right or “reckless, willful, or wanton misconduct” in delaying or denying responses to public records requests.
  • declare agency action to be “null and void.”
  • order the agency to provide relief that the FOIC “believes appropriate to remedy the denial of any right conferred by the FOIA” (for example, receive training on the FOIA).

Generally, if you are acting in good faith, and make a mistake, the FOIC will not impose a punitive ruling (for example, a fine), but will require the public agency to cure the mistake.  However, if you are found to have acted “without reasonable grounds” or have engaged in reckless or willful misconduct, you may be subject to fines.   Unlike most situations, where public officials (including board members) are indemnified from personal liability, fines may have to be paid by officials responsible for FOIA violations out of their own pockets; indeed, indemnification by a public agency of an offending agency members’ FOIA fines may be prohibited by law.  As such, it is incumbent upon board members to act in good faith, and also to learn from (and not repeat) any mistakes that they make.

Please note: this post is adapted from an article written by the author for the December 2023 edition of the CABE Journal

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Alerts, commentary, and insights from the attorneys of Pullman & Comley’s School Law practice on federal and Connecticut law as it pertains to educational institutions, whether those institutions be public school districts, private K-12 schools, or post-secondary colleges and universities.

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