Category Archives: Transparency/FOI

Why Exactly Do We Keep Teacher Ratings Top Secret?

by Categorized: Data, Education, Government, Transparency/FOI Date:

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 two-decade-old state law exempts from disclosure all records of teacher performance and evaluation (because why would taxpayers care about the quality teacherof 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?

Secret Severance Deal For Public Officials? Not In My State.

by Categorized: Government, Politics, Transparency/FOI Date:

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 JohnSalomonewhat 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.

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For CT FOI’s Birthday: A (Mostly) Good-News Story

by Categorized: Government, Law Enforcement, Legal Affairs, Transparency/FOI Date:

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 FOI_Grassoroadblocks, 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

Yet Another Effort to Keep the Public in the Dark about the Public’s Business

by Categorized: Government, Law Enforcement, Legal Affairs, Transparency/FOI Date:

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 oftopsecret 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

Secrecy-Obsessed Bureaucrats Battle for Coveted “Golden Padlock Award”

by Categorized: First Amendment, Government, Law Enforcement, Legal Affairs, Media, Transparency/FOI, Uncategorized Date:

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.golden_padlock

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.

A Transparency Advocate’s Legislative Wish List

by Categorized: Education, First Amendment, Government, Law Enforcement, Media, Politics, Public Safety, Transparency/FOI Date:

I recently obtained an internal email in which a lawyer for a public agency laid out the agency’s strategy for responding to a request for records under the Freedom of Information Act.

Step One was identifying the records the agency was willing to release.

Step Two was identifying the records the agency had no intention of releasing.

And then Step Three, almost as an afterthought, was determining whether there was actually an exception under the Freedom of Information Act that would provide a legal basis for keeping the withheld documents secret from the public.

“As we discussed we can always withhold a document even if there is no exception,” the lawyer wrote, with the understanding that the agency might have to concoct a justification for the illegal act if the requester was savvy enough to pursue an appeal to the Freedom of Information Commission.

It wasn’t the first such email I had been made privy to, and it reminded me of the need for vigilance in Freedom of Information matters and the importance of constantly reminding the public servants who work for us that they do, in fact, work for us. They’re paid by us, they’re sworn to serve us. And with rare exceptions, all of the paperwork and data they produce and collect while on our payroll belongs to us, and should be provided to us without a fight.

So as the Legislature gets down to business this week, here’s one transparency advocate’s wish list, for any lawmakers willing to champion the not-so-radical concept that the people’s business really is the people’s business. Continue reading

Once again, Spending the Public’s Money to Keep the Public in the Dark

by Categorized: Employment, Government, Transparency/FOI Date:

The Connecticut State Colleges & Universities system, with its 90,000 students and $300 million in state aid, is among the most expensive and most important government operations. So when Michael Gargano Jr. abruptly resigned his $224,554 job as provost last month, the taxpayers of Connecticut might have felt entitled to a robust exit interview, to learn why he was dissatisfied with the governance of the system and in particular how his thinking differed from that of his boss, Board of Regents President Gregory Gray.

But that’s not likely to happen.

As my colleague Kathy Megan has reported, a separation agreement Gargano and Gray signed contractually bars Gargano from uttering a sentence that disparages Gray – or anyone else connected to the state’s higher education network. Specifically, Gargano’s deal prohibits him from making any derogatory statement about the Board of Regents, about his employment with the Board of Regents or about any current or previous member, employee or officer of the Board of Regents.

On the other side of the ledger, the agreement continues Gargano’s paycheck for nearly 16 weeks, at a cost to taxpayers of more than $65,000. That payment – roughly equal to a year’s salary for a typical state employee – is not required by Gargano’s employment contract.

As is typical of negotiated employment separations, the agreement also bars Gargano from suing his former employer. There’s no indication he had any basis for a suit, although if he was in fact treated in a way that violated the law, perhaps that, too, is something the taxpayers had a right to know.

So in the end, an employee of the public has signed off on giving tens of thousands of dollars of the public’s money to another public employee as part of a deal that will keep the public in the dark about the public’s business.

Does anyone have a problem with this?

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The Practice Book Rule That Connecticut Judges Rarely Obey

by Categorized: First Amendment, Law Enforcement, Legal Affairs, Media, Transparency/FOI Date:

The arrest affidavit detailing the criminal case against Southington teenager Eric Morelli, who unwittingly caused a fatal fire by tossing firecrackers at a friend’s bedroom window, was ordered sealed three different times in the last month and half, until a Superior Court judge lifted the secrecy order late last week after acknowledging there was no good reason to keep the document under wraps.

This happens too osealedfileften, despite a legal mandate that favors openness in the courts, and clear rules establishing the hurdles that must be cleared and the process that must be followed when judges take what should be the extraordinary step of shutting off public access.

So as a public service, The Scoop would like to publicly remind the state’s judges, prosecutors and defense attorneys of their obligations under the Connecticut Practice Book when seeking to seal arrest warrants and other court documents.

Section 42-49A of the Practice Book begins: “Except as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public.” That presumption is echoed in the commentary of the section, which summarizes the findings of various court cases that make up the established and non-discretionary law of the state. “The public and press enjoy a right of access to attend trials in criminal cases and to access documents filed in connection with such cases,” the Practice Book notes. “This right is well settled in the common law and has been held to be implicit in the first amendment rights protecting the freedom of speech [and] of the press.”

That right, of course, is not absolute – as indicated by the phrase “Except as otherwise provided by law” – and there are various reasons why at least portions of a court document may legally be sealed, such as to protect witnesses or preserve an ongoing criminal investigation that would truly be jeopardized if certain details became publicly known.

But the Practice Book recognizes that is a momentous step and mandates that judges work to minimize the impact on the public’s right to know. As such, a sealing order can be entered “only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public’s interest in viewing such material. The judicial authority shall first consider reasonable alternatives to any such order and any such order shall be no broader than necessary to protect such overriding interest.”

And the Practice Book requires judges to pay more than lip service to that principle by spelling out exactly what they’re doing and why. In sealing a document, “the judicial authority shall articulate the overriding interest being protected and shall specify its findings underlying such order and the duration of such order.” In addition, “the judicial authority shall order that a transcript of its decision be included in the file or prepare a memorandum setting forth the reasons for its order.”

There are no transcripts or memoranda in Eric Morelli’s file and veteran criminal court reporters will tell you that in practice, there is little resembling the formality and gravity envisioned by the Practice Book rules.

In the Morelli case, the initial seal was requested by the prosecutor in what sometimes seems like an automatic action in higher-profile cases. Such requests are rarely rejected by judges. The last extension to the seal order was requested by Morelli’s defense attorney, who said he feared pre-trial publicity could poison a jury pool and that details in the warrant might be embarrassing to those involved.

Defense attorneys are duty-bound to promote their clients’ interests, but seasoned lawyers certainly know those are almost never valid reasons for keeping an arrest warrant secret. Nevertheless, some judges apply an inappropriately low level of scrutiny to such requests. And as in the Morelli case, they often are overturned only after intervention by a newspaper lawyer.

That’s not how it’s supposed to be. So in this, the 223rd year of the Bill of Rights, I offer a modest proposal that the state’s criminal bar and judiciary give Practice Book Section 42-49A a fresh read and recommit to the transparency that has been a hallmark of a reputable judicial branch for centuries.

Is Jailed CCSU Poet a Good Professor? That’s None of Your Business.

by Categorized: Education, Law Enforcement, Transparency/FOI Date:

My colleague Kathy Megan reports this morning that the Board of Regents for the Connecticut State University system will reconsider Tuesday’s decision to grant full professorship to Ravi Shankar – a promotion that occurred while Shankar was behind bars at the Hartford Correctional Center.

In seeking to distance Shankar’s legal troubles from his classroom duties, regents spokesman Michael Kozlowski said he has heard that Shankar, the school’s poet in residence, “has tremendous student ratings, they like him very much, and that his academic record, at least as far as I know, is quite good.”

We’ll have to take his word for it.

As I’ve noted before, there is a strange lack of transparency surrounding the assessment of public university professors in Connecticut, with all records of their performance and evaluation off limits to the taxpayers who employ them. But that cloak confidentialstampof secrecy is yet more stark for faculty employed by the State University System, where the entire contents of personnel files are closed to any outside scrutiny.

Those aren’t my words; that’s the actual language of the faculty union contract, which was given the force of law years ago by the legislature. “The entire contents of personnel files,” the contract reads, “shall be considered private and may not be opened to any outside scrutiny except when ordered by a court of law.”

Those personnel files contain a faculty member’s application for employment, payroll records, disciplinary actions, job-related correspondence with university administrators and “all other relevant personnel actions.”

That unmatched secrecy would typically run afoul of the state’s Freedom of Information laws, which recognize that public accountability is part of the deal when the public pays your salary. But under Connecticut law, when the legislature approves a collective-bargaining agreement, the provisions of the contract supersede any conflicting state law.

So in 1997, the union asked for wholesale secrecy, negotiators for the state agreed, and legislators let it become law.

“One the biggest potential threats to public accountability is a state law (Gen. Statutes section 5-278) that is being used to allow public employee contracts ratified by the legislature to trump FOI statutes when it comes to releasing information in employee personnel files,” the Connecticut Council on Freedom of Information wrote in their Agenda for Open Government last year. “The executive branch should refuse to negotiate, and the legislature should refuse to accept, such back-door assaults on accountability in the state’s union contracts.”

The current state-university contract expires next year and negotiations will begin anew. We’ll see if there are voices in state government willing to stand up for transparency. In the meantime, it’s anyone’s guess whether or not Professor Ravi Shankar’s academic record is in fact “quite good.”

FBI Releases Heavily Redacted Report on Adam Lanza

by Categorized: Law Enforcement, Transparency/FOI Date:

In response to a Freedom of Information Act request by the Courant’s Dave Altimari, the FBI has released 111 heavily redacted pages detailing its investigation into Sandy Hook shooter Adam Lanza. As Altimari reported, another 64 pages were withheld in their entirety.

The government claimed generally that releasing the redacted information would constitute an invasion of personal privacy, reveal the identify of confidential witnesses or interfere with law-enforcement proceedings. The partially redacted pages can be viewed below.