Information requests cited as part of town’s budget problem

In a report to the Board of Finance, school officials singled out parents and news outlets that sought information over the past year as having contributed to the cost overruns that now have the schools operating $807,000 in the red.

A printout spreadsheet was delivered by the Board of Education at the finance board’s May 20 meeting, highlighting $187,463 in costs related to fulfilling requests made under the Freedom of Information Act and the Family Educational Rights and Privacy Act, or FERPA.

Seventy-one FOIA requests have been made since 25 parents filed a complaint with the state Department of Education in March 2013, alleging systemic violations to state and federal special education law. Of those, 31 were filed by The Darien Times, 30 by parents, and the remaining by other parties and media outlets, according to Lynne Pierson, interim superintendent.

Parents also filed a total of 17 FERPA requests to get information about their children. Costs for these requests were lumped into the FOIA expenses, an act that has some parents concerned or even angry that the district would consider its legal obligation to provide parents with information as a cost burden, especially when the district broke the law 32 times and endangered the education of the town’s most at-risk students, according to the official investigations.

“Wouldn’t any parent want to know what’s going on with their child after so much illegal activity was found? I can’t believe they’re including us” in that expense, one parent told The Times.

Complex problems involving children make the power of the FOIA and FERPA that much more vital, notes Rose Cavanagh, executive director of the New England First Amendment Coalition.

“Given the recent revelations of major systemic violations of federal and state special education laws in the district, [and] the clean up and fall out which has cost the district dearly, it seems absurd to point the finger at a newspaper and at interested parents for cost overruns, when these groups are only trying to get information about problems caused by the district’s failure to follow the laws,” Cavanagh said.

Fulfilling FERPA requests might have been costly because some parents reported waiting years for requests to be filled, as the district has not kept records in a central location and some records may have been prematurely destroyed, according to emails obtained through FOIA requests and earlier reported by The Darien Times.

The district’s claims are even more disturbing for some who say that FOIA and FERPA requests were responsible for bringing an assortment of legal and management problems to light. These requests revealed possible conflicts of interest, under-the-table dealings, illegal directives and documents, and an assortment of management errors. During her investigation, attorney Sue Gamm used findings made through FOIA requests filed by this newspaper, because she could not get the information through the district, she reported.

Transparent governance is not without cost, according to Cavanagh.

“FOI requests must be fulfilled and that takes time and resources,” Cavanagh said. “However, it has been shown time and time again that governments without public oversight as provided in Connecticut by the FOIA, routinely waste resources and engage in corrupt and sometimes illegal practices.”

The idea that a public body would claim FOIA requests were a cost burden does not sit well with James Smith, a retired editor and president of the non-profit Connecticut Council on Freedom of Information.

“A financial burden? Give me a break,” Smith said, adding that the district can charge for copies made, but not to inspect documents. “I think all requested government info should be free; after all government officials are merely the holders of the public’s documents.”

Additionally, school boards have been the worst public bodies when it comes to FOIA compliance, according to Mitchell Pearlman, a former 30-year member and chairman of the state’s Freedom of Information Commission and current board member of the New England First Amendment Coalition.

“Historically, they were the worst offenders,” Pearlman said. “Whenever we’ve done surveys on complaints with the Freedom of Information [Commission], the worst violators were boards of education — really, superintendents of schools.”

Ex-superintendent Steve Falcone omitted key documents parents had asked for through the FOIA — documents that were later determined to issue illegal directives to staff in an attempt to cut special education services to save money, according to Gamm’s report.

Superintendent Pierson has been generally responsive to requests, but at times has asked questions to be submitted by citing the FOIA. This could be the new policy developed by school lawyers, Shipman & Goodwin. However, concerns have been raised about the district allowing the same law firm that created an FOIA policy to then request questions be submitted via an official FOIA request, as it would be a clear conflict of interest since the firm would stand to make money on fulfilling these requests.

Pearlman said that Shipman attorney Tom Mooney, who has been helping the schools, would not engage in such activity. Mooney has not responded to requests for comment.

“I have the greatest respect for Tom Mooney,” Pearlman said. “I can’t believe he would be playing any kind of games. I don’t know about others in his firm.”

Smith and Pearlman both noted that a public body cannot demand that a request cite the Freedom of Information Act by name.

“They can’t make you use the magic words,” Pearlman said, referring to the FOIA.

Darien has also paid public relations firm McDowell Jewett Communications nearly $50,000 to manage its public image. No mention of that figure was disclosed at the Board of Finance meeting, nor did anyone comment on the efficacy of this firm’s work, which has been plagued by criticism stemming from the district’s poor communication with parents and media.

Some districts have a communication professional to handle media and public relations, but Darien chooses to lay that responsibility onto the Board of Ed chairman and the superintendent. Or, as was the case this last year, with an outside firm.

The Times was denied access to McDowell’s work by Shipman, but the paper is appealing this denial to the Freedom of Information Commission.

There is also a question of how much time and effort has gone into fulfilling these requests, especially when some seem to involve little legwork to gather. Last summer, Mooney admitted that spending 30 minutes per day fulfilling FOIA requests was enough for then-superintendent Falcone. Now, lawyers are spending dozens of hours fulfilling FOIA requests that have likely become more specific and easier to fulfill than when Mooney made his 30-minute suggestion.

One of The Times’ earliest requests, which was not handled by lawyers, sought to examine all documents and correspondence related to special education since the district hired Deirdre Osypuk to run its special education program. Within weeks, Falcone produced thousands of pages of documents with various redactions.

On March 13 this year, with lawyers managing FOIA requests, The Times asked to examine all correspondence related to the development of the special education manual since 2008. On April 22, the paper asked about its status and was told the district was working on it. Two days later, an electronic file containing a few email exchanges between various employees was provided.

It contained large portions of redactions where information had been deleted. Redactions can only be made as per state statute, and no reference as to why these redactions were made was included in the district’s response. In its request for documents, The Times asked for any redactions to be justified by citing the FOIA, and on May 5, the paper received some of the same emails. This time, however, there were no redactions. That is, the missing information from the first set of emails was included in the second set.

It’s unclear why the items were redacted once but not a second time. In the second response, the district cited redactions made under the clause relating to educational records that are exempt from disclosure, except no redactions were made. It’s unclear if this were the rationale for the first set of redactions. Once the emails were produced in their entirety, it appeared that the redactions were not educational records.

Smith from the FOI council notes that lawyers should not be guiding this process.

“The school board and school superintendent — not their lawyers — should be held accountable for what they are withholding from the public,” Smith said.

A similar cost-related complaint surfaced last summer when school board Chairman Betsy Hagerty-Ross told the finance board that media requests for information were “raising [the schools’] budgets quite a bit,” and that costs could begin to interfere with the district’s ability to educate children.

During a Special Education Advisory Committee meeting, Hagerty-Ross told the packed room of residents that in addition to legal expenses, “there’s costs with FOIs, there’s costs for all these other media outlets and their FOIs that are raising our budgets quite a bit.”

“We have to track all of this, because it is going to cost the district and we have to, at some point in time, figure out if it is going to start to affect our bottom line for services to our students, and if we have to go back to the Board of Finance for additional funds,” she continued. One local news outlet ran with this story, focusing on Hagerty-Ross’s claims, although this perspective has been riddled with criticism since FOIA requests uncovered an assortment of problems that have led to numerous resignations and administrative restructuring.

Additionally, not all FOIA requests filed by The Times were related to special education. However, Shipman & Goodwin appears to be including all its work related to fulfilling FOIA requests under the heading “IDEA Complaint to State Department of Education” (IDEA refers to the federal Individuals with Disabilities Education Act). A review of legal invoices shows no reference to fulfilling FOIA requests under a different heading.

After Hagerty-Ross pegged FOIA fulfillment as a cost burden last year, The Times attempted to learn information informally. When the paper asked school attorney Tom Mooney to answer questions about certain documents, he replied, “I will not be responding to you.”

The paper then filed an FOIA request to get the information, which included release forms the district required parents to sign when they wanted to place their children in another school. When this request was received, the paper printed a story highlighting an assortment of problems with these forms. Soon after, the district publicly announced it would no longer be using these forms.

Last year, this newspaper also reported that the district had actually spent more money on McDowell’s public relations services than it had spent fulfilling FOIA requests. In 2012, the year the problems began to surface, the district chose to cut its legal services aide from the special education budget to save $57,000. This position traditionally handled FOIA requests, according to school officials.

At the Board of Finance meeting, member Bruce Orr suggested that The Times’ FOIA request cost the town roughly $79,000. He then asked The Times reporter in the audience if he “noted that…” and urged him to “report that.”

One person who works in town noted that FOIA and FERPA expenses could be tantamount to a third investigation.

“Gamm cost $196,000 and FOI stuff cost $187,000? If you look at what’s been uncovered, they got off cheap,” he said.

Originally published in The Darien Times.

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