FOIA Advisor

Q&A: allegations of misconduct at local school (with follow-up)

Q&A (2015-16)Allan BlutsteinComment

Q.  I filed an FOIA with a local school district to obtain info about allegations against me for unprofessional conduct.  I was told that that information was in a 'private file,' and I was not allowed to see or dispute said information to defend myself.  Can they legally deny me access to information about me?  The allegations were not for any criminal wrongdoing.

A.   As an initial matter, you may have avenues of access to the requested records outside of your State's freedom of information laws if, for example, you have a union contract that permits access or your employer has taken an unfavorable personnel action against you.  Therefore, if you have not done so already, you might wish to speak with your union representative or an employment lawyer. 

Putting those variables aside, however, the school district's FOIA denial may very well be proper.  Although the records in question pertain to you, to be sure, public disclosure of those records (in whole or in part) could jeopardize the privacy and safety of a third party and confidential source.  These potential harms may outweigh your personal interest or the public interest in disclosure, even if you have a reasonable belief about the identity of the complainant.  Under the federal FOIA, such harms are intended to be prevented by Exemptions 6, 7(C), and 7(D).  You have not identified the State in which your employer is located, but most State freedom of information laws are modeled on the federal FOIA. 

Lastly, if you are dissatisfied with the FOIA denial (which I assume you are), you might wish to check your State's applicable statute to determine whether you may (or must) file an administrative appeal before proceeding to court.  Click here for links to State freedom of information laws.

Q.  Follow up question to my earlier question.  First, thank you for such a quick and informative response.  I have been removed from [redacted by FOIA Advisor] by the district and asked not to [redacted by FOIA Advisor].  Due to the severity of their action against me, I feel there must be erroneous if not blatant lies in this "private file." Do I have no recourse in this matter?  Could they not redact identifying information, or at least give me dates times and places for the allegations that apparently they believe are true so that I could directly address them?

A.   You may have multiple remedies.  As I mentioned above, if you have filed a FOIA request that has been denied, your State's freedom of information law may permit an administrative appeal.  If not, it will undoubtedly allow you to file a lawsuit.  Whether the records in question can be redacted and released in part (i.e., de-identified), as you suggest, is impossible to know at this point.  The entire document could tend to identify a third party, including the date and time of any alleged incident.  Or the identifying information and non-identifying information might be so intertwined that a redacted document would be incomprehensible.  In federal FOIA litigation, a court may agree or demand to review the records in camera to assess the propriety of the agency's withholdings.  It otherwise relies upon agency affidavits that describe the information withheld.  I again refer you here for links to State freedom of information resources.

Further, your State's labor laws might permit you to access your personnel file, in whole or in part.  See the following website that addresses each State's applicable law.  I cannot, however, verify its accuracy. 

You might have other causes of action, such as breach of contract or violation of due process, but I am not familiar enough with education law or teachers' rights to advise you.  I can only suggest that you consult with someone who is.