Briefly: New Haven Independent v. Amistad High School

i. Responsive Records

As an introductory matter, I questioned the completeness of Amistad High School’s production of records regarding Barth’s misconduct, as it seems that Attorney Forbes withheld responsive records.

In her post-hearing brief, Attorney Forbes misconstrues my testimony, saying that I am seeking additional records beyond the scope of what I initially asked for. This is untrue. In my initial request emailed on Apr. 9, 2019, I wrote, “For this request, any written complaints, investigatory findings, supporting statements or corrective action must be released.”

At the contested hearing, I referred to records that I had received through a similar public- records request to the Connecticut State Department of Education, as Attorney Forbes says.

However, Attorney Forbes inaccurately describes those records as relating solely to a former regional superintendent, Jeff Sudmyer.

One document I received was described by Dacia Toll, Achievement First’s co-CEO, in an Apr. 30 email to Regina Hopkins, an education consultant in the state’s turnaround office, as “the full internal investigation report.” Toll did not say that it was about Barth or Sudmyer specifically; instead, she indicated in a follow-up email that it was a “confidential summary of our internal investigation.”

Indeed, Hopkins also understood the document to be a review of the October 2018 incident, not solely about Sudmyer. In a May 7 email to Toll, Hopkins referred to the document as “an internal investigation of the [] 2018 incident wherein Mr. Barth put his hands on a student.”

They were discussing a February 2019 document titled “AF Amistad HS Report.“ In it, Kyoung Lee, Achievement First’s vice-president of talent operations, describes a warning letter, in which she says that Barth was told he needed to attend a restraint and de-escalation training and apologize to the student, the family, and the entire high school staff.

The existence of that document, which describes the “corrective action” that I asked for in my initial request, leads me to believe that Achievement First has not turned over all responsive records about Barth’s misconduct.

My request specifically describes the type of records I sought, and therefore is not “overbroad and unclear,” as Attorney Forbes mischaracterizes it. The issue here is not so much the adequacy of the search, as whether responsive records that were located were improperly withheld.

ii. Education Records

In order to claim this exemption, Attorney Forbes must prove that these records relate directly to a student who could be identified, even with the student’s name and other personally identifiable information redacted.

First, Attorney Forbes must prove that these records contain information directly related to a student (20 U.S.C. § 1232g(a)(4)(A)(i)).

Records about the teachers or staff employed by an educational institution do not automatically count as student records, federal appellate judges have concluded (Klein Independent School District v. Maddox, 830 F.d2 576 (5th Circ. 1987)).

That’s especially clear when educators act inappropriately, as Barth did in this case.
“Congress did not intend FERPA to cover records directly related to teachers and only
tangentially related to students,” one federal judge wrote (Ellis v. Cleveland Municipal School Dist., 309 F. Supp. 2d 1019 (E. Ohio 2004)).

In a case that’s matches this one as a close precedent, #FIC 2013-677, Linda Lambeck and the Connecticut Post v. Chairman, Board of Education, Bridgeport Public Schools, a newspaper reporter sought a videotape of a principal dragging kids down a hallway, close to what Barth had done. There, the Commission found the records “directly relate to the conduct of the school principal and not to the students who appear in them” and ordered their release.

Second, even if the records do relate to a specific student, Attorney Forbes must prove the personally identifiable information is so inextricable from these records that it cannot be anonymized through redactions of the names, addresses or birth-date of the student and his family.

Achievement First contends that the information could be “linked” to a specific student “with reasonable certainty” (34 C.F.R. § 99.3(f)), when compared against the already published YouTube video.

To be clear, I never received a copy of the security-camera footage in itself. I saw what appeared to be a cell-phone video of a computer monitor that was playing the security-camera footage.

The video was so grainy to begin with that individual students cannot be made out. On top of that, a close review of the video shows that the student never actually turns toward the camera, only briefly appearing in profile, not the “unobscured face” that Attorney Forbes inaccurately described.

Still, to be sure, before I posted that clip on YouTube, I blurred out faces to further obscure their identities, as I indicated to Achievement First’s spokesperson before publication. I subsequently deleted the unredacted clip of the video I had received.

As the Commission noted in Lambeck v. Bridgeport Public Schools (#FIC 2013-677), a
surveillance video that was of such low quality “that the identity of the children who appear in the records cannot be discerned” was not personally identifiable information under FERPA, despite what the Commission termed the “heavy media coverage.”

In this case, no other media outlet that followed up on my reporting identified the student, as Pinto confirmed during the contested hearing.

That makes this appeal different from other cases where the student’s identity had been widely reported. (See #FIC 2017-0036, Jay Hardison v. Superintendent, Darien Public Schools, and #FIC 2018-0660, Patrick Eaton-Robb and the Associated Press v. President, University of Connecticut.)

Furthermore, no one from inside Amistad High School has confirmed that the student’s identity is widely known.

The testimony from Pinto, Achievement First’s public-relations director who splits her time between nearly three dozen schools in three states, is dubious. She presented no evidence to back up that assertion, nor to suggest that these are anything more than rumors, which may be inaccurate.

Attorney Forbes also did not present evidence that additional records, if properly redacted, would allow a person with reasonable certainty to confirm their suspicions.

Indeed, in a May 24 phone call, Attorney Forbes had told me that she wasn’t actually worried about the records being linked back to the student. She said that she would release the records to any other media organization that requested them, just not the New Haven Independent.

Still, Achievement First further contends they “reasonably believe” I “know the identity of the student to whom the education record relates” (34 C.F.R. § 99.3(g)).

Usually, this exemption is invoked when parents (#FIC 2012-047, Leah Walsh v.
Superintendent, Bethel Public Schools and #FIC 2015-0566, Judith Shpak v. Superintendent, Oxford Public Schools) or teachers (#FIC 2018-0308, Christopher Cevetillo v. Superintendent, Oxford Public Schools) are trying to obtain records.

I do not know who the student is. In multiple interviews with employees and students at the school over the last year, no one volunteered the individual student’s name. I have made no efforts to find out who the student is, nor will I try if I obtain additional records.

Attorney Forbes mischaracterizes my reporting by saying that, for the January 2019 story, I interviewed “more than 15 students, parents, recent graduates and former staff” about the video. That is incorrect. At that point, the existence of a video was still largely a secret.

In those 15 interviews, I asked primarily about students’ experience in the school. I wanted to understand the larger, systemic issues that allowed a physical incident like this to happen. Most of my conversations, as the story details, were about the high school’s rigid disciplinary system that some described as prison-like.

Indeed, the article contains only a short, 180-word description of the video of Barth shoving a student. Even within that section, I included another 350 words about how Barth pushed another student, whose older brother is named in the story, at his prior job at a Bridgeport middle school. Overall, the article goes into far more detail, in a second 1,400-word section, about the overall school culture.

In sum, the Commission should not allow Achievement First to equate a “suspicion” with a “reasonable belief.” Under their interpretation, any time the news media reports on an educator’s misconduct involving a student — even when that student’s identity has not been publicly disclosed — the school can seal off all its records.

The Commission has previously declined to make such broad conclusions, limiting the applicability of this exemption to cases where requestors obviously had direct knowledge of the student’s identity. It should not go beyond that precedent in this case.

iii. Attorney-Client Privilege

In order to claim this exemption, Attorney Forbes must prove that the communications meet every part of the Connecticut Supreme Court’s four-part test for maintaining the privilege.

Specifically, (1) the attorney must be acting in a professional capacity for the agency; (2) the communications must be made to the attorney by current employees or officials of the agency; (3) the communications must relate to the legal advice sought by the agency from the attorney, and (4) the communications must be made in confidence. (Lash v. FOIC, 300 Conn. 519-520.)

Most importantly, it is not clear that these communications were kept confidential, as they may have been released to Barth or Sudmyer, investigators from the Connecticut State Department of Education or the general public through Shipman & Goodwin’s summary of its external investigation.

To the extent that any records — or even the general impressions of them — have been
disclosed, that confidentiality would have been breached.

Importantly, an entire matter is “actually disclosed” even when the “gist” of the communication is disclosed, leaving the remainder “merely an elaboration of the material disclosed.” (U.S. v. Jacobs, 117 F.3d 82, 90 (2d Cir. 1997)).

While Attorney Forbes takes issue with the Second Circuit’s ruling in Jacobs, it fits with longstanding precedent. “‘[T]he privilege attaches to the substance of a communication and not to the particular words used to express the communications content.'” (Robbins & Meyers, Inc. v. J.M. Huber Corp., 274 F.R.D. 63, 84 (W.D.N.Y. 2011) (quoting U.S. v. Tellier, 255 F.2d 442, 447 (2d Cir.), cert. denied, 358 U.S. 821 (1958)).

The case Attorney Forbes cites, In re von Bulow, 828 F.2d 94 (2d Cir.1987), asks a different question: whether “the publication by an attorney of a book chronicling his client’s case waives the attorney-client privilege — not just as to information actually disclosed in the book — but with respect to all communications underlying the subjects raised in it” (at 97).

Here, I am not arguing that entire communications must be disclosed, just because one part was made public; rather, I am arguing that if the substance was actually disclosed, that part of the communication, even with different wording, must be released.

That’s exactly the standard that the court applied in In re Von Bulow. “Matters actually disclosed in public lose their privileged status because they obviously are no longer confidential. The cat is let out of the bag, so to speak. But related matters not so disclosed remain confidential.” (at 103).

iv. Preliminary Drafts & Notes

In order to claim this exemption, Attorney Forbes must prove not only that these records are “preliminary,” but that Amistad High School “has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.” (C.G.S. § 1-210(b)(1)).

Attorney Forbes argues that some of these documents never made it to Barth. However, these records are still complete, even if they weren’t delivered.

In an May 22 email that Pinto sent me, Toll said that some of these records that Achievement First now claims are preliminary were indeed “finalized.”

“AF made the decision that Mr. Barth should receive a written reprimand, as a result of the investigation that was conducted shortly after the October incident. The letter was drafted and finalized, but we discovered months later that it was never actually delivered to him,” Toll was quoted as saying in Pinto’s email.

These records reflect the “actual decision-making process about the concerns raised by the employee and others concerning [a public official], not a preliminary, deliberative and predecisional process that precedes formal and informed decision making. The records reflect historical facts and decisions, not the [agency’s] deliberations about, or assessments of, those facts.” (#FIC 2013-558, Joe Wotjas and the New London Day v. Director, Department of Administrative Services, Town of Stonington).

But more importantly, there is a significant public interest in seeing how Achievement First investigated Barth’s misconduct, especially given the way teachers felt blind-sided by the disclosure three months later.

The Commission has repeatedly held there’s a significant public interest in seeing how government agencies investigate allegations of misconduct by their own employees.

”There is a legitimate public interest in the manner that town officials receive complaints about public officials, counsel the individual raising the concerns, and investigate those complaints,” it has said. “As in Rocque v. FOIC, 255 Conn. 651, 665 (2001), ‘much of this information is of legitimate public concern in that it reveals, for example, the department’s efforts to secure the complainant’s cooperation, the department’s procedure in questioning witnesses and the complainant’s concern for job-related consequences’” Wotjas v. Stonington (#FIC 2013-558).

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