How to Respond to FOIA Requests For Overall Teacher Summative Ratings?

LR-hands-over-laptopkeysIt has come to our attention that certain school districts in Connecticut have already received requests under the Freedom of Information Act [“FOIA”] for access to overall district and school level summative ratings of all teachers evaluated by the districts in the 2013-14 school year.  By way of background, all Connecticut school districts are required to report to the State of Connecticut Department of  Education [“SDE”] the aggregate counts of educators by their final summative rating (i.e., Exemplary, Proficient, Developing, and Below Standard). School districts have to provide such information for teachers at both the school- and district-level; for principals and all other administrators, such information need only be provided at the district level.  In addition, the aggregate counts of teachers by final summative rating in selected content and grade specific areas is to be at the district-level only.  Finally, the aggregate counts of educators who were partially/not fully evaluated using the new educator evaluation system are also to be reported to the SDE. Parenthetically, for “Commissioner’s Network” schools, such schools are required to report individual educator rating data.

Connecticut school districts would have good cause to decline access to the aggregate ratings/reports.  Generally, teacher evaluation records are exempt from disclosure under the FOIA.  Conn. Gen. Stat. §10-151c provides:

Any records of teacher performance and evaluation maintained or kept on file by the Department of Education or any local or regional board of education shall not be deemed to be public records and shall not be subject to the provisions of [the FOIA], provided that any teacher may consent in writing to the release of such teacher’s records by the department or a board of education. Such consent shall be required for each request for a release of such records. Notwithstanding any provision of the general statutes, records maintained or kept on file by the Department of Education or any local or regional board of education that are records of the personal misconduct of a teacher shall be deemed to be public records and shall be subject to disclosure pursuant to the provisions of [the FOIA].  Disclosure of such records of a teacher’s personal misconduct shall not require the consent of the teacher. For the purposes of this section, “teacher” includes each certified professional employee below the rank of superintendent employed by a board of education in a position requiring a certificate issued by the State Board of Education.

The additional language that is highlighted above is the result of Public Act 13-122 (Section 13), and was ostensibly added in light of school district reporting obligations with regard to evaluations.  This amendment was also originally linked to, but then decoupled from an attempt in 2013 to enact a state “longitudinal data system,” and prior versions of this amendment arguably would have provided a more convincing answer to the questions posed by the instant FOIA request.

While the summative data at issue is in the aggregate, its submission is part of the teacher evaluation process, specifically the State’s oversight of the new evaluation process and data collection by the SDE’s “Performance Office.” Indeed, on May 29, 2014, the SDE issued a comprehensive memorandum governing data collection updates, in which the issue of the reporting of aggregate information concerning teacher summative evaluation ratings is discussed. The SDE memorandum includes discussion regarding privacy and the FOIA as it pertained to the data collected (both with regard to any individual data collected and aggregate data).  The SDE points out the security protocols that it maintains for educator evaluation data (firewall protections, intrusion detection software, limiting access to certain authorized persons).  Furthermore, as to summary/aggregate results, the SDE states that 1) it “appreciates the challenges regarding the comparability of educator evaluation ratings across districts” and thus it “will emphasize important caveats to minimize the likelihood of any misinterpretation of the results,” and 2) it “also recognizes that even aggregate data, especially when collected at the school level, could become identifiable,” and thus it “will employ appropriate data suppression rules to minimize the likelihood of re-identification of an individual educator’s evaluation from the aggregate/summary results.”

These two statements could be viewed as hinting that the SDE views the aggregate data as information that can be shared with the public, with the SDE taking steps to avoid “misinterpretation” of the data and re-identification of individual data.  However, the SDE memorandum then closes by noting that “Section 13 of Public Act 13-122 protects educator evaluation data maintained or kept on file by the [SDE] from being accessed via the [FOIA]” and that as such, “the record of an educator’s performance and evaluation shall not be deemed to be public records and remains protected.”  The memorandum further notes that should the SDE contract with a third-party entity to analyze, maintain, or otherwise process data, this statutory protection will be extended to that third party and “such contract will clearly prohibit the third party from conducting analyses of the data independent of [SDE’s] direction and will prohibit the contracting entity from releasing any reports based on the data that has not been authorized by the [SDE].” Such comments could then be interpreted as indicating that the statutory exemption to disclosure provided for teacher evaluations (as amended by Public Act 13-122) applies to the aggregate data.

In Perry v. Superintendent of Schools, East Haddam Public Schools, #FIC 2013-034 (September 24, 2014), the Connecticut Freedom of Information Commission [“FOIC”] recently considered the issue of student and parent raw survey data that was used as part of the new evaluation process.  In addition to numerous multiple choice questions, such surveys expressly requested that each parent or student filling out the survey recognize one individual teacher and provide further explanation via an essay question. Such survey data is then to be used for establishing individual teaching goals, and evaluation of the teacher will be based upon a determination of whether the teacher has met such goals. Based upon this process, and the fact that parent feedback (10%) and student feedback (5%) are express components of the summative rating, the FOIC held that a) 15% of a teacher’s annual evaluation is inextricably linked to and derives from information contained in parent and student surveys, b) the surveys are an integral part of the evaluation process, and c) the surveys are “records of teacher performance and evaluation,” within the meaning of Connecticut General §10-151c, and that therefore such records are not subject to disclosure under the FOIA.

While the survey data requested in Perry could provide information on some individual teachers via the essay question responses, not all teachers would be mentioned individually in these responses. Nevertheless, the Perry decision did not limit the exemption to disclosure to data reflecting individual/teacher specific information. This would support the view that the statutory exemption for evaluations (while not as broad as teachers’ unions have argued in the past) is broad enough to protect all aspects of the evaluation process, whether or not part of the actual final evaluation and whether or not necessarily impacting an individual privacy interest.  Based upon the language of Connecticut General Statutes §10-151c, as amended, along with the guidance from Perry and the SDE memorandum, school districts could object to the disclosure of the aggregate data provided to the SDE, with the understanding that a complaint may be filed with the FOIC, and the FOIC (and/or the courts) may eventually order disclosure.  While we obviously believe that a decision to withhold disclosure is based upon a correct interpretation of the law, at the very least, it cannot be said that the decision to withhold disclosure is “without reasonable grounds” and there would be no basis for the FOIC to penalize a school district for a decision to refuse disclosure.  Finally, regardless of whether the data at issue is disclosable under the FOIA, “smaller” school districts could be well-positioned to defend themselves against a refusal to provide the records in light of the fact that it may be easier to “disaggregate” and connect to an individual the aggregate data from such school districts, especially with regard to administrators.

One caveat is added to this entire discussion.  This office has been in contact with the SDE as to its position on this issue. However, as of the date of publication of this alert, it is still unclear what the SDE will do if a request is made to it for the same information sought in a FOIA request served upon a local or regional school district.  Thus, while school districts would be justified in refusing to disclose the data in response to the FOIA request, it is possible that the SDE will end up providing the requested data, making this entire matter moot.

To see our School Law Alert on this subject please click here.