The Government Instinct for Secrecy Backfires Once Again

by Categorized: Education, Ethics, Government, Legal Affairs, Media, Transparency/FOI Date:

Partway through the state Child Advocate’s devastating report on Hartford schools’ failure to protect students, there is a line – almost a throwaway line – illustrating how little respect some public employees have for the citizenry that employs them and pays them.

After school principal Eduardo Genao was caught sending creepy messages to underage girls, the school system quietly took steps not to fire him, but to slide him into a different six-figure job with less direct access to teenagers. Genao, who initially demanded no more than an oral reprimand, ultimately agreed to a vaguely worded written reprimand letter, and made one more request to settle the matter.

“Through his union representative, Mr. Genao requested that the district take an ‘aggressive approach’ to any Freedom of Information Act request regarding the matter,” the Child Advocate’s report states. “A district note accompanying the letter of reprimand included a written caution that the matter must be kept ‘very confidential.’ ”

By law, of course, the misdeeds of a public employee must be kept “not the least bit confidential.” But officials with something to hide have rarely felt any loyalty to the mandates of the Connecticut Freedom of Information Act, or the many decisions of the Freedom of Information Commission explaining again and again that, with limited exceptions, the public gets to know what’s going on in their government.

In 1993, the Connecticut Supreme Court wrote forceful language explaining that secrecy is not permitted when it comes to the misdeeds of those who draw a salary from the taxpayers. “When a person accepts public employment, he or she becomes a servant of and accountable to the public.  As a result, that person’s reasonable expectation of privacy is diminished,” the high court wrote. “The public has a right to know not only who their employees are, but also when their public employees are and are not performing their duties.”

Case closed, right? And yet, year after year, the Freedom of Information Commission has to quote those words to remind bureaucrats who they work for, and order them to release records to the public.

Hartford school officials were not bound by Genao’s request almost a decade ago that they work aggressively to keep his past a secret. But last year, when my colleague Vanessa de la Torre sought the school system’s investigative records, the district’s initial response would surely have pleased Genao.

After two weeks with no reply, the school system’s labor relations specialist declared that “Pursuant to the review of the Office of the Corporation Counsel, there are no other documents response to your request that can be released.” Days later, the Corporation Counsel’s office provided a “privilege log,” declaring that every remaining document was exempt from disclosure under the Family Educational Rights and Privacy Act, which limits the disclosure of students’ personally identifiable information.

The Courant pushed back. Though we’re not lawyers, we know the law, and told the city’s lawyers: “Portions of the document may well be exempt under FERPA, but our request covers the segregable, non-exempt portions, which it would be illegal for the district to withhold. Is the district refusing to release redacted versions of these records?” The city’s lawyers continued to insist that every word of every document was exempt from disclosure.

But we – as the saying goes these days – persisted. And ultimately the city’s lawyers acknowledged that the law was on our side, releasing records with the names and other identifiable information about students redacted, as we had asked for all along.

Had the instinct for secrecy not been so strong when the district was investigating Genao’s disturbing behavior in 2007 and 2008, a full airing of his behavior might have forced him out of his job. A 13-year-old girl might not have been traumatized by the sexually explicit texts he is accused of sending her just last year. Genao might not be facing criminal charges in that case. And the city of Hartford, as well as the school board, school superintendent and other officials, might not be defendants in what could be a costly lawsuit.

When will they ever learn?

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