The Connecticut Appellate Court recently held that a “last-chance agreement” establishing punishment and penalties for future violations of school policy was subject to disclosure under the Freedom of Information Act (FOIA).

The incident and demand for disclosure

A Tolland High School history teacher showed a film titled Damned in the USA to his American government class. The film was controversial, and the teacher told students several days in advance that they could be excused from class if they didn’t want to watch it. After the film was shown, high-school officials found it “age inappropriate.” Subsequently, the superintendent, the teacher, and the union entered into a “last-chance agreement” that set forth certain discipline and indicated the penalties for subsequent violations of school rules or policy.

Two years later, a reporter for the Journal Inquirer asked for a copy of the last-chance agreement. When the teacher was notified of the request, he filed an objection and cited Section 10-151c of the Connecticut General Statutes, which exempts a teacher’s performance and evaluation records from disclosure as public records. The Journal Inquirer and its reporter filed a claim with the Freedom of Information Commission seeking disclosure of the agreement. The hearing officer assigned to the case reviewed the document and held that it wasn’t a performance or evaluation record and thus ordered its disclosure. The full commission adopted the hearing officer’s report.

The teacher filed an administrative appeal in superior court, which upheld the commission’s decision requiring the disclosure of the last-chance agreement. The teacher then filed an appeal to the appellate court in an attempt to overturn the previous decisions.

Appellate court analysis

The appellate court noted that the FOIA was enacted to require openness in government activities. Thus, disclosure of public records is required unless a clear exception has been established to “protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information.” Section 1-210 of the Act requires disclosure of documents except “as otherwise provided by any federal law or state statute.”

The teacher claimed that the last-chance agreement fell under the purview of Section 10-151c of the Connecticut General Statutes, which states that teacher performance evaluations aren’t deemed public records and aren’t subject to disclosure under Section 1-210. The appellate court, however, noted a 2002 amendment to Section 10-151c stating that records of a teacher’s personal misconduct are deemed public records and subject to disclosure under Section 1-210.

The appellate court noted that during the debate on the 2002 amendment, a member of the general assembly stated that the Legislature’s original intent in enacting Section 10-151c was to prevent parents from “teacher shopping” by reviewing teacher evaluations and then demanding that their children be placed with a particular teacher. Although the teacher’s judgment in showing the film was being evaluated, the superintendent had concluded that the teacher’s decision to show the film required discipline as well as notice of the consequences of similar conduct in the future. Thus, the appellate court agreed with the Freedom of Information Commission that the last-chance agreement constituted discipline rather than an evaluation of the teacher’s performance in showing the film.

Bottom Line

The appellate court’s decision makes clear that any last-chance agreement entered into by a board of education, a teacher, and/or his union is likely to be subject to disclosure to any parent or newspaper requesting it. Further, it’s doubtful that language placed into such an agreement that it’s to be deemed “confidential” won’t prevent its disclosure should someone request a copy of it under the FOIA.