SILENCE MATTERS: SCHOOL SAFETY, SECURITY PLANS AND THE CT FOIA

In the aftermath of another senseless and tragic school shooting, school districts are understandably looking inwards as they contemplate the need to adjust their security measures. I am frequently asked how school districts can consider their options while still complying with the Connecticut Freedom of Information Act [“FOIA”].  Fortunately, the FOIA contains protections for schools that balance the public’s “right to know” with common sense concerns about safeguarding sensitive discussions (and documents) about school security measures.

    So can the school board meet in executive session to discuss the district’s security plan and strategy? Generally yes. The FOIA permits executive session for discussions of “matters concerning security strategy or the deployment of security personnel, or devices affecting public security.” Connecticut General Statutes §1-200(6)(C).  As such, a discussion of the layout of the district’s security system, specifically the best types of security devices to use to secure a building and where these devices should be located, would be covered by this executive session provision. Brazzell v. Stratford Boothe Park Commission, #FIC 1990-254 (January 23, 1991). Please note: Any votes that may need to be cast with respect to the security plan or strategy would have to take place in public; a motion to authorize revisions to the security plan “as presented to the board in executive session” would likely suffice.

    Can we withhold from disclosure the actual security/safety plan and strategy? The FOIA contains a common sense, albeit lengthy, exception that exempts from disclosure documents where there are “reasonable grounds” to believe that disclosure may result in a “safety risk.” Specifically, the relevant FOIA provision exempts from disclosure:

Records when there are reasonable grounds to believe disclosure may result in a safety risk, including the risk of harm to any person, any government-owned or leased institution or facility . . . except that such records shall be disclosed to a law enforcement agency upon the request of the law enforcement agency. Such reasonable grounds shall be determined . . . by the Commissioner of Emergency Services and Public Protection, after consultation with the chief executive officer of a municipal, district or regional agency, with respect to records concerning such agency . . . . Such records include, but are not limited to:

(i) Security manuals or reports;

(ii) Engineering and architectural drawings of government-owned or leased institutions or facilities;

(iii) Operational specifications of security systems utilized at any government-owned or leased institution or facility, except that a general description of any such security system and the cost and quality of such system may be disclosed;

(iv) Training manuals prepared for government-owned or leased institutions or facilities that describe, in any manner, security procedures, emergency plans or security equipment;

(v) Internal security audits of government-owned or leased institutions or facilities;

(vi) Minutes or records of meetings, or portions of such minutes or records, that contain or reveal information relating to security or other records otherwise exempt from disclosure under this subdivision;

(vii) Logs or other documents that contain information on the movement or assignment of security personnel; and

(viii) Emergency plans and emergency preparedness, response, recovery and mitigation plans, including plans provided by a person to a state agency or a local emergency management agency or official.

Connecticut General Statutes §1-210(b)(19)(emphasis added). As one can see, school districts and municipalities may have to seek guidance from the State Commissioner of Emergency Services and Public Protection before refusing to disclose security records. In turn, the Freedom of Information Commission [“FOIC”] and the courts should defer to that state agency’s safety risk assessment “unless frivolous, patently unfounded, or in bad faith.” People for Ethical Treatment of Animals, Inc. v. FOIC, 321 Conn. 805, 810–12 (2016).

As an example, in Miner v. Water and Sewer Department, Town of Wallingford, #FIC 2011-005 (December 14, 2011), the FOIC ruled that a report on the municipal water supply was properly withheld from disclosure based on the possible safety risk of release.  Specifically, it was recognized that information that identifies and/or assists in determining  the location of sources of drinking water supply, that describes the manner in which the town water division operates its sources of supply, and technical information relating to the volumes of sources of supply” may result in a safety risk because with such information “an individual or entity seeking to cause harm to a water system would be aided by the ability to identify the locations of facilities or sources of supply, methods of operation, and quantities of water to be contaminated.”

So how far can we go in refusing to disclose security plans and strategies? As you can see from Miner, the FOIC will be cognizant of circumstances where the release of information will aid those seeking to do harm.  While conclusory information that provides a general description of a security system – as well as its cost and quality — may have to be disclosed, specific information relating to strategy and the deployment of security personnel and the specifications of security equipment and systems should be exempt from disclosure.  Of course, from a practical perspective, school boards will still have to balance the need to provide assurance to the public about the strength of their security measures without releasing too much information that could be used by potential wrongdoers.

These and other issues will be discussed in Understanding Connecticut’s Freedom of Information Act, (Fifth Edition) by Mark J. Sommaruga, Esq. Please stay tuned for further details regarding the release and publication of this book.