Can a school committee publicly release documents referenced in an ‘open session’ hearing on teacher discipline?

Rhode Island school committees typically address personnel disciplinary matters in closed sessions. However, Rhode Island law permits an employee to request that the hearing be held in a session open to the public. When this occurs, are documents that are referenced and discussed at the open session available to the public and the media? By demanding an open session on the disciplinary matter, has the employee waived his or her privacy interests in the content of the documents? Does a school committee have a legal obligation to turn over these documents when requested by the media? The law is not clear-cut on these questions.

Steve Adams addresses below how school committees can address these potentially thorny issues.

Q. What Rhode Island law governs this scenario?

A. Two statutory provisions are in play. The Rhode Island Open Meetings Act dictates that matters addressed at school committee meetings are open to the public subject to certain exceptions, including discussions related to an employee’s job performance. (R.I.G.L. § 42-46-5(a)(1))  Nonetheless, the law permits the affected employee to request an open meeting discussion, even at the last minute. The second statute at issue is the Access to Public Records Act, which, as a general rule, insures public access to records pertaining to public bodies, including school committees. However, this law permits a public body to shield from public view personnel and other personal individually-identifiable records that would constitute a “clearly unwarranted invasion of personal privacy.” (R.I.G.L. § 38-2-2(4)(b))

Q. By requesting an open meeting on a disciplinary matter, does a school employee waive any privacy interests protected by the Public Records Act?

A. It’s a tough call presently because no Rhode Island court has ruled on that narrow question, nor has the Rhode Island Attorney General, who is charged with enforcing the Act, issued an advisory opinion. The statute is open to interpretation on this point. For instance, does an employee’s demand for an “open discussion” of his or her job performance necessarily sweep into public view documents used during that discussion? Similarly, does referencing information in the documents during the open session make the entire set of documents freely available for inspection by the media and the public? Or does releasing them expose a school committee to a charge that it violated the employee’s personal privacy rights, especially if they contain sensitive information?

Q. Can a school committee look to the statutes or any case law for guidance?

A. Cases interpreting the Public Records Act support the argument that records do not become public records simply because a public body reviews them during an open meeting. Also, the Act warns against disclosing personnel records or other personal individually-identifiable records that would clearly constitute an invasion of privacy. A cautious approach would suggest withholding documents from the public if they contain arguably sensitive or embarrassing information about the employee, especially when it isn’t clear if the employee’s request for an open discussion included an approval to make his or her personnel records related to the discussion available for public inspection.

Q. What potential liability would a school committee face by releasing documents referenced at an open meeting?

A. Three come to mind: civil liability for invasion of privacy, liability under the Public Records Act, and a grievance under a collective bargaining agreement.

Q. What arguments would support a school committee’s desire to release open-session documents to the media and the public?

A. Bearing in mind that each situation depends on the facts, a school committee could argue that the documents are not “personnel records” and that the documents do not contain sensitive, private information. It could also argue that the employee waived any right to privacy in the documents by demanding an open session to discuss the disciplinary matter, which would include reference to documents supporting the reasons for the disciplinary action. However, there is an important distinction between disclosing documents or paperwork, for example, and making an oral presentation in support of a recommendation that the school committee approve an adverse employment action. Under circumstances where an employee has demanded a public hearing of a proposed discipline such as a suspension, the school department can introduce “any available evidence” to support its discipline recommendation. So, even though the propriety of disclosure of the actual documents to the public is not altogether clear, it is certainly appropriate to provide these documents to the school committee. And the underlying information contained within those documents should be grist for the mill during the administration’s oral presentation in support of its case. Indeed, given the fact that the school administration is really in the position of convincing the school committee to support its recommendation for adverse employment action, the administration really should present all of the information that forms the basis for the recommendation – even if that information is salacious or disturbing. In other words, disclosure of the actual documents may or may not be forbidden, but there does not appear to be any prohibition on oral disclosure during the open meeting of every little detail that supports the administration’s recommendation.

Steve is administrative partner in the Providence office of Barton Gilman, where he focuses his practice on advising education institutions and handling a wide range of civil litigation matters.