The New York Times has a widely shared piece this morning, disclosing that Donald Trump reported a nearly $916 million loss on his income taxes in 1995 – a financial drubbing that The Times said could have allowed him to wipe out any income-tax liability for 18 years.
Partisans on both sides are engaged in typical partisan hysteria, and some are wondering on social media: Is this sort of reporting legal?
The story included copies of Trump’s state tax returns from New York, New Jersey and Connecticut. Most people in my profession have salivated over the thought of gaining access to tax filings for those whose background we’re investigating. But personal tax returns naturally are confidential, and the Department of Revenue Services would promptly laugh at us if we asked to see them.
So was The Times on shaky legal ground in publishing Trump’s Connecticut Non-Resident Tax Return?
Laws are often open to interpretation, but the answer is probably not. Yes there are state laws that provide penalties for disclosing tax information; no, those laws probably don’t apply to The Times.
Section 12-15 of the Connecticut General Statutes makes it illegal to inspect or disclose “return information” – including the sort of information The Times reported. But the law’s prohibition is limited to current and former state employees and to others who have authorized access to the returns (such as contractors hired to help process or store returns). Those with unauthorized access – including The Times – aren’t covered by the law. (Connecticut’s law is substantially similar to the federal law on tax-return privacy.)
So if a state official provided the document, that individual may have broken 12-15, which carries a maximum penalty of a year in jail and a $1,000 fine. But that law doesn’t appear to apply to The Times or its reporters. (That said, it seems unlikely the document came directly from the Connecticut Department of Revenue Services; The Times indicates that all three tax returns arrived together in an anonymous package on Sept. 23.)
But if an anonymous tipster broke the law in leaking the records, is The Times still on the hook for publishing them? Again, probably not – although lawyers for Trump have threatened legal action. In 2001, the U.S. Supreme Court considered a case in which a Pennsylvania radio station broadcast a recording of an illegally intercepted cell phone call between union officials during a contentious contract negotiation. The union officials sued, but the court sided with the radio station, ruling that journalists cannot be held liable for publishing illegally obtained information related to legitimate matters of public concern, so long as the journalists did not participate in illegally obtaining the information.
“Privacy of communication is an important interest. However, in this suit, privacy concerns give way when balanced against the interest in publishing matters of public importance,” the court wrote in Bartnicki v. Vopper. “A stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”
The heated debate over the propriety and relevance of The Times’ story will likely go on. Just perhaps not in a court of law.
Over the objections of teacher unions, the Freedom of Information Commission ruled Wednesday that there’s no reason to keep secret the fact that New Milford school officials think about three-quarters of their teachers are accomplished and one quarter are exemplary.
If that doesn’t sound like the sort of information that calls for breaking out the lawyers to keep under wraps, welcome to the strange world of teacher evaluations – the only public-employee evaluations in Connecticut that are kept confidential by law.
Thirty years ago, the legislature cut off public access to “records of teacher performance and evaluation,” swallowing the argument that without secrecy, parents would engage in “teacher shopping” by poring over personnel files and then harassing principals to pair their kids with the “good teachers.” I don’t know how silly that argument sounded three decades ago, but every time I mention it in casual conversation these days, the universal response is, “But everyone already knows who the good teachers are.”
Nevertheless, it’s been the law since 1984 that the public shalt not see a teacher’s performance review (and by “teacher,” the legislature decided that term should apply to librarians and reading specialists and assistant principals and every other certified school professional except the superintendent.)
But the Commission Wednesday permitted a tiny peek under the tent, ruling unanimously that the law protecting records of teacher performance was intended to apply to an individual, identifiable teacher’s evaluation, and not to anonymous, aggregated data for an entire district.
That is a victory for John Spatola, who was turned down when he asked the New Milford school system to release data related to the state’s far-from-perfect effort to uniformly assess the competency of the state’s teaching force. The state plan established a variety of criteria that placed teachers into one of four categories; exemplary, proficient, developing and below standard. (New Milford substituted the term “accomplished” for “proficient.)
So Spatola, a former member of the New Milford Board of Education, asked for data showing the number of local teachers who were placed in each of the four categories. New Milford officials were reluctant to release the data without some assurance that they could do so without breaking the law. The local and state teachers’ unions, meanwhile, intervened and urged the FOI Commission to keep a cloak on the numbers, saying their release would be illegal and would harm teachers.
The legal argument is built on the broad language of the statute, which cuts off public access to “any” record of teacher performance and evaluation. The unions argued that that language covered the aggregated data Spatola was seeking. The Commission disagreed, adopting a hearing officer’s finding that the law was meant to shield records related to individual teachers. “The requested records, which do not identify individual teachers or individual schools,” the hearing officer wrote, “cannot be used for ‘teacher shopping.’ ”
While Spatola hails the ruling as a triumph for transparency, it was somewhat academic; New Milford’s numbers, and those of many other school districts, had already come to light when they were entered as an exhibit in an ongoing lawsuit against the state Department of Education. But the data that came out of that case was heavily redacted, with some information missing for two-thirds of the state’s districts, and all information missing for nearly half.
Given the FOI Commission’s ruling, I’ve sent a request to the State Department of Ed for an unredacted copy of the data. I’ll keep you posted.
In the meantime, isn’t it time for the legislature to remember that it’s the public who ultimately employs the state’s public-school teachers? And to rethink a law that prevents the public from seeing performance evaluations for some of its most important employees?
The University of Connecticut Foundation is back in the news and back at the Capitol for the perennial tug-of-war over opening the foundation’s books. In the last two legislative sessions,
lawmakers have introduced bills that would subject the fundraising arm of the university to the Freedom of Information Act and allow the Auditors of Public Accounts to review the foundation’s finances.
Those bills went nowhere. But this year, a dramatically watered-down version of the legislation has been introduced that would require the foundation to release a laundry list of documents – most of which are already public by state or federal law. Perhaps the most significant change involves the disclosure of how many disbursements the foundation makes for various categories of support, including scholarships and endowed professorships and program support – although the university already reports the total amount spent on those categories.
A second bill, for which a public hearing is scheduled tomorrow, March 18th, would require the foundation to release information on its financial support for faculty and staff (though the bill’s wording leaves it unclear whether that would require more disclosure than the university already makes). And the legislation would make public the names of people and companies donating to the foundation – unless the donor requests secrecy. If that bill passes, it will be particularly interesting to see how the foundation implements that provision.
Click here or the chart below to download our full Charity Check report on the University of Connecticut Foundation (which will open as a Word document). And click the image at bottom to download the foundation’s most recent tax return.
For years, it has been the policy of the state Department of Education to give school superintendents an advance peek at their district’s standardized test scores, a week or so before the high-stakes numbers are released to the public. And for roughly as long, transparency advocates have groused that such a policy seemed to put the public-relations concerns of insiders above the rights of the public to have prompt access to the government records they own.
But it took an enterprising reporter from the Journal Inquirer of Manchester to actually do something about it.
Last Aug. 19, a deputy commissioner at the education department sent an email to every superintendent in the state, announcing that aggregate district-wide data for the Smarter Balanced Assessment Consortium test would be made available to them later that day, but that the data was not to be shared with the press or discussed at a board of education meeting.
“As a courtesy, the embargoed results are made available for districts before results are made public,” the email stated. And breaking that embargo, the email warned, “jeopardizes your district’s access to future embargoed releases.”
Michael Savino, the J-I’s Capitol reporter, caught wind of the Aug. 19 email and immediately requested a copy of the district-by-district data the Department of Education had distributed to districts. The department declined, explaining that the data would be released to the public only after a “final quality control check” was completed.
“We set a high bar regarding accuracy of information that we generate and the public should expect nothing less from us,” a department official wrote in rejecting the request.
Nine days later, the data that had been released to the superintendents was released to the public. And two months after that, the press and the state squared off before a hearing officer with the Freedom of Information Commission to determine whether that nine-day delay was legal.
The department argued that an advance copy of the test data – including student-by-student results – is sent to local school districts so superintendents can notify the department of any anomalies that might indicate errors. The department’s chief performance officer testified that the participation of superintendents is an important part of the department’s verification process.
“In essence,” wrote Attorney Kathleen K. Ross, the hearing officer, “the [department officials] argued that the record containing the aggregate district-wide test results was a ‘preliminary draft’ at the time it was requested because such results had not been verified by the superintendents and the department.”
But Ross wasn’t buying it.
“The Commission does not credit the testimony of the [chief performance officer] regarding the superintendents’ role in verifying the test scores, in light of the conflicting evidence that the aggregate district-wide test results were sent to the superintendents ‘as a courtesy’,” Ross wrote in a proposed decision released last week. Moreover, she said, there was no evidence that the department had asked superintendents to verify the data and report any problems, and no evidence that any superintendents had in fact provided feedback on the results.
Beyond that challenge to the department’s testimony, Ross wrote that the data did not meet the legal definition of a preliminary draft, and that the department violated the Freedom of Information Act when it delayed releasing the data to Savino.
After Ross’s proposed decision was released, an education department spokeswoman told the Journal Inquirer: “We are strong proponents of transparency, but we are also bound by our duty to ensure the information we present to the public is accurate.”
If the full Freedom of Information Commission adopts Ross’s findings at its Feb. 24 meeting, the department will know which of those two interests is paramount.
The state Department of Education took extraordinary measures last week to prevent even the slightest risk that you might find out how qualified your kid’s teacher is.
If that sounds ridiculous, it’s not entirely the department’s fault. A three-decade-old state law exempts from disclosure all records of teacher performance and evaluation (because why would taxpayers care about the quality of the teachers they employ?). So when the state submitted aggregate school-by-school data on teacher ratings as part of a court case last week, they suppressed more than half the data points to make sure there was no possible way anyone could link a particular rating to a particular teacher.
The data show the number of teachers who fell into each of four categories in a new and controversial assessment of the state’s teaching force. The department did release statewide figures, showing that about a third of teachers were rated as “exemplary” by their school districts, a little under two-thirds were deemed “proficient,” and fewer than 2 percent were labeled “developing” or “below standard.”
But when reporting the data at the school level, the state withheld at least some of that information for nearly 7 out of 10 schools. For just under half the state’s schools, all of the numbers were suppressed. And all in service of making sure no one outside of the school system knows which teachers are extraordinary and which are struggling.
The department used an exceptionally strict suppression strategy, hiding the numbers if a particular category had been assigned to between one and five teachers at a school. The thinking apparently was that if four teachers at a school were rated exemplary, and they all knew each other’s rating, then they would know that no other teacher at the school had received that rating. To keep that category’s number secret, they also blacked out the number for the next-highest category. And by the time they were done, most of the numbers had been suppressed.
There are, for example, 66 teachers statewide rated “below standard.” But what schools they’re assigned to is a mystery; not one of the schools with a below-standard teacher is identified in the data.
There is plenty of reason to question the validity of the rankings, as reported by my colleague, Kathy Megan. But this is the teacher-performance scheme the state has imposed on its teachers, and taken $13.5 million from its taxpayers to implement. Does the public have no interest in seeing what the ratings revealed?
As The Scoop has written before, the secrecy surrounding teacher performance dates to 1984, when the legislature was hoodwinked into shutting off access to evaluations of public school teachers, purportedly to thwart teacher-shopping by parents. The law, however, applied to every certified school official below the superintendent, and before long, was extended to professors throughout UConn and the state university system as well.
While the statute was initially seen as a way to keep written performance reviews secret, educational leaders are afraid that releasing even anonymous data will put them on the wrong side of the law. That’s what’s behind a Freedom of Information Commission case in which a New Milford Board of Education member was turned down when he asked for the breakdown of teacher ratings for his district. The local board of ed is wary of releasing the data without direction from the FOI Commission. The teachers union, meanwhile, has intervened to try to keep the numbers from seeing the light of day.
While the Commission’s eventual ruling may resolve the issue for other school boards, the New Milford numbers came out in the court exhibit submitted by the state. Here’s what the union was trying to keep secret: Of the 346 New Milford teachers evaluated under the new system, 72 percent were deemed proficient and 28 percent were deemed exemplary. Not a single one was rated developing or below standard.
Does that sound like the sort of information that should be kept out of the hands of the public by the force of law?
A year ago, The Scoop published “A Transparency’s Advocate’s Legislative Wish List,” with eight suggestions for improving the public’s access to government records. In the 2015 session, legislators resolved one of the issues, fixing a confusing statute covering what arrest information police agencies must release. The other seven options are still on the table, including addressing that 1984 law that exempts teachers from the same level of accountability to which every other public employee is held. This year’s short session will be dominated by the budget. But there’s no reason our lawmakers can’t multitask.
So, legislators: Anyone care to step up in favor of government transparency?
Elected officials in Newington were so eager to be rid of former Town Manager John Salomone that they offered him tens of thousands of dollars of other people’s money to get him to leave.
But they also didn’t want everyone in town to know the details of the whole messy affair, so they did what politicians too often do: They added a confidentiality clause to the severance deal, and then said they were barred from releasing a copy of the signed agreement.
There are two things wrong with this approach. One, it’s generally bad public policy to keep people in the dark when you’re spending their money. And two, in Connecticut anyway, it’s illegal.
Or more particularly: Politicians in Connecticut can draft confidentiality clauses all they want; they just can’t keep them confidential.
That’s been the law of the land here for nearly a decade, but it’s a statute public officials sometimes have trouble remembering. So as a public service, The Scoop offers the following refresher: Connecticut General Statutes 1-214a – appropriately titled “Disclosure of public agency termination, suspension or separation agreement containing confidentiality provision” – specifically mandates just that: the disclosure of public employee separation agreements, notwithstanding a confidentiality clause. Under the law, any termination agreement between a public agency and and an employee “that contains a confidentiality provision that prohibits or restricts such public agency from disclosing the existence of the agreement or the cause or causes for such termination … shall be subject to public disclosure.”
So when the Courant’s Christopher Hoffman asked for a copy of the severance agreement earlier this month after the Newington Town Council approved it 8-0, he should have promptly received a copy. Instead, according to Hoffman’s story, Mayor Roy Zartarian “said that the town had negotiated a severance package with Salomone but declined to reveal its contents, saying both parties had agreed to keep it confidential.”
That’s not what the statutes allow. And to Zartarian’s partial credit, when advised of his obligations under the law, he did ultimately provide a copy of the agreement, while continuing – as he is at least legally entitled to do – to refuse to talk about the town’s actions.
So town residents are still partly in the dark about why their public servants doled out tens of thousands of dollars to the outgoing Town Manager, but at least they now know that’s where their money went. And through Hoffman’s diligence, they now know the extraordinary effort all parties took to assure that the whole messy affair would stay as much in the shadows as possible.
The signed deal, for example, assures that Salomone won’t share any thoughts he might have about whether the public is being ill-served by the town. The agreement bars Salomone from disparaging or criticizing the town and specifically prohibits him from saying anything to the press about his departure “other that what is agreed to by the town.”
Likewise, town officials agreed not to speak openly and honestly with anyone about their opinion of Salomone’s professional abilities or personality, and further barred every Newington town employee from saying anything negative or critical to a potential future employer of Salomone’s. That means, presumably, that no one had anything bad to say about Salomone to representatives of the city of Norwich, which just hired Salomone as their new city manager.
Under the separation deal, Newington officials agreed to give Salomone seven months’ pay while he isn’t working for the town. That’s a month longer than he’s entitled to under a provision in his contract that gives him six month’s salary if the town votes to terminate him. City officials won’t say why they gave him the extra month’s pay – about $12,000 of taxpayer’s money.
“This is a personnel matter and as such, I can make no statement on the issue,” Zartarian told the Courant. In fact, there is nothing in Connecticut law that bars public officials from making statements on personnel matters, and the only thing forcing Zartarian to keep mum is the agreement he chose to sign.
Connecticut’s Freedom of Information Act turns 40 years old today, and in honor of that milestone, let’s write about a transparency success story – the tale of an agency that received a request for public documents and actually produced the records with no delays, no phony roadblocks, and even no cost.
This is not a fictionalized fantasy; it really happened, and it involved the City of Hartford Corporation Counsel, which, under prior regimes, was not always so agreeable when it came to giving, to the public, records that belong to the public.
First, some background: On Nov. 14, 2012 a Hartford man named Lamonte Brown was walking with his dog Boomer on South Marshall Street when police officers investigating a noise complaint confronted him and, he says, beat him, shot him with Tasers, and impounded his dog, which was later euthanized.
Those events led to a lawsuit against the officers in federal court and then, in August, to a formal settlement – with Brown agreeing to drop the suit and city officials agreeing to write Brown a check for $7,500. The settlement was later reported by the Associated Press, in a story that included this curious line: “Brown’s lawyer, John Q. Gale, said he couldn’t discuss the case because of a confidentiality agreement.”
Such confidentiality agreements are common in lawsuit settlements. They are also controversial, with a continuing debate over whether the potential benefit of that secrecy (the ability to settle more cases without the fear of inviting more litigation) outweighs the potential harm (keeping the public in the dark about, say, especially dangerous doctors or dangerous products or serial rapists).
But when it comes to public agencies – at least in Connecticut – that debate is mostly muted. Our Freedom of Information Commission – an independent agency that is the jewel of the law turning 40 today – has consistently held that when government officials settle lawsuits, they can’t keep taxpayers in the dark about the terms of the settlement – unless there are special circumstances that compel a a judge to take the extraordinary step of ordering the settlement sealed.
Which brings us back to Lamonte Brown’s case. Continue reading
It is extraordinarily well-settled law in Connecticut that personnel records related to the official conduct of our civil servants are public records that must – with rare and well-delineated exceptions – be released to members of the public, who employ those civil servants.
And yet, decades after the state Supreme Court resolved any serious question about the obligation of public agencies, the dockets of the Freedom of Information Commission are routinely clogged with cases in which one town or another is trying – through ignorance or willful law-breaking – to keep personnel files secret.
Usually, the arguments are worn and tired, but occasionally an agency will come up with a novel, if misplaced, justification for skirting the law. That’s the case with a complaint brought against the Ansonia Police Department, which refuses to release personnel records for one of its officer. Continue reading
When the Boston Globe sought records related to crashes involving Massachusetts State Police cars, the agency said it would be happy to comply – for a fee of $62,200. The agency was also willing to release a log of public-records requests – for $42,750. And the Staties told a reporter for the Bay State Examiner that he would have to pay a $710.50 “non-refundable research fee” just to find out how much the agency would ultimately charge for copies of internal-affairs documents.
For “habitually going to extraordinary lengths to thwart public records requests, protect law enforcement officers and public officials who violate the law and block efforts to scrutinize how the department performs its duties,” the Massachusetts State Police was named one of four finalists for the Golden Padlock Award, a slightly tongue-in-cheek honor bestowed annually by the journalism organization Investigative Reporters and Editors (IRE).
“It normally takes months or longer to respond to news media FOI requests. Requests for basic documents routinely produce refusals, large portions of blacked out documents or demands for tens of thousands of dollars in unjustified fees,” IRE gushed in announcing the department’s nomination. The news organization also quoted a 2013 story in the Worcester Telegram & Gazette that declared: “The Massachusetts State Police is a habitual offender – verging on a career criminal – when it comes to breaking a state law intended to ensure government is accountable to the people it serves.”
This is the third year IRE has led the hunt for “the most secretive government agency or individual in the United States.” Last year, the award was shared by the U.S. Navy FOI office, which not only stymied efforts by a reporter to obtain information on a shooting spree at the Navy Yard in Washington, D.C., but also accidentally sent the reporter an internal memo outlining the plan to keep records secret; and the governors of Oklahoma and Missouri, who went to extraordinary lengths to keep the public in the dark about problems with prison executions.
Joining the Massachusetts State Police as finalists this year are the Colorado Judicial Branch, which keeps records of its spending and disciplinary actions under wraps; The Texas Department of Public Safety, which tried to block inquiries into the validity of its border-security program; and the U.S. Department of Defense, which has stonewalled efforts to learn more about the massacre of 16 civilians in Afghanistan by an Army staff sergeant.
“There is a unique brand of courage displayed by public officials who deny, delay and circumvent the public’s right to know with a straight-faced sense of duty,” said Robert Cribb, a Toronto Star reporter and chair of IRE’s Golden Padlock committee. “They carry forward a rich tradition of undermining open records laws with ingenuity, commitment and condescension deserving of our acknowledgement.”
The winner will be announced at IRE’s annual conference this weekend.