Good Cops? Bad School Boards, and a Useful Hotline

What could have happened? Perhaps you have all stopped covering crime?

Or – wouldn’t this be nice – has there been a change in the approach to FOIA requests from your local police, sheriff and state police barracks? Let me know, if you will, if your experience has really changed for the better this year, or have you all given up?

Next to law enforcement agencies, school boards and superintendents’ offices are my pick for worst consistent offenders on access questions. MDDC FOI Subcommittee Chair Tom Marquardt of The Capital agrees with me on this. "They’re the worst," said Tom while we were puzzling over the lack of calls regarding police records.

You can get the piquant flavor of school board offences in a February 2001 opinion from the Maryland Open Meetings Compliance Board responding to complaints from the Howard County PTA that the PTA could not get minutes or meeting notices from the School Board.

The Compliance Board does a heavy business with school boards, and your Hotline got three calls on efforts to get records about school budgets, an asbestos report and an inquiry from an outside civil rights group regarding a busing program. That’s not a flood of calls, but it is the largest number dealing with the same type of agency.

School boards and superintendents’ offices get no special breaks when it comes to access to the conduct of their business or the treatment of their personnel, either in meetings or in their public records files. (Student records, of course, are a different matter and beyond the scope of this particular column.)

Under the Maryland Public Information Act, access must be denied to a personnel record, including an application for the job, a performance rating or scholastic achievement information.

However, when the Washington County School Board held a closed meeting to discuss approval of employment terms for the school superintendent, the Open Meetings Compliance Board remarked that such a meeting about a new or amended contract could not properly be closed. The School Board, in a splendid display of recalcitrance, did not give the contract to the Compliance Board. The Compliance Board had to say it did not have enough information to reach a firm holding.

The personnel exception in both laws is repeatedly invoked and repeatedly misinterpreted. Where a board wants to evaluate an individual’s performance, records and meetings may be closed. Where the entire class of employees will be affected, neither records nor meetings may be closed.

Twice, the PIA says that exemptions do not apply to the salary of a public employee, i.e. teachers’ and superintendents’ salaries are public records.

It may be helpful down the road if you are aware of the way the "permissive denials" section of that law is written.

Assume that the Board of Education is considering purchase of a piece of land. The opening clause allowing permissive denials says that a real estate appraisal of that property may be withheld, "if a custodian believes that inspection of a part of a public record by the applicant would be contrary to the public interest…." The custodian may not simply recite those words or cite the code section, but must explain in writing why the record should be withheld. The custodian must release the appraisal after the board has purchased the property, and must release the information to the owner of the property, who is not restrained by the PIA from releasing the information to you.

And of course you realize you can see the last purchase price and the mortgage for any piece of property in the county title office. So, the real estate appraisal and discussions about "acquisition" of real property may be closed, but your news story can include the custodian’s denial and explanation, notice of the closed meeting (which must also explain the closure), the title history on the property in question, and, if the owner is willing, an interview about the property. You are not without news copy, even when access is denied.

Remember, the service offered by the MDDC Hotline includes advice on the content of the law, and, when appropriate, some follow-up calls to the agency and a letter or two, if requests for information are not legitimately denied. And, as I have long advocated, if you are frustrated on a legitimate request for information, that is news your readers need to have.

The access laws were written for all of the public, not just the press, so news about access is news of genuine public concern. Call (202) 298-7248 for more help.