The FOIA, Charter Schools and “Charter Management Organizations:” The FOIC and the Legislature (Sort Of) Speak

waterside_school_frontR_72DPI_RGBAs noted previously, the intersection between Connecticut’s Freedom of Information Act [“FOIA”] and charter schools has been the source of much noise. Notwithstanding some shrill voices, charter schools have always been subject to the FOIA.  The lingering issue has been whether “charter school management organizations” (e.g., entities some charter schools contract with for educational design, implementation, or “whole school” management services) are subject to the FOIA.

What Sayeth The FOIC?

Connecticut’s Freedom of Information Commission [“FOIC”] was to finally get a chance to answer this question.  The FOIA has been construed to cover not only public agencies but also entities that are the “functional equivalent” of public agencies.  Whether an entity is a covered “functional equivalent” of a public agency is based upon the following: 1) whether the entity performs a governmental function, 2) the level of governmental funding, 3) the extent of government involvement and regulation, and 4) whether an entity was created by the government.  The Connecticut Education Association [“CEA”] and the Hartford Courant asserted in three separate cases that a charter management organization [“CMO”] is such a functional equivalent of a public agency and thus covered by the FOIA.  For purposes of full disclosure, the author was retained by the CMOs in all three cases, and asserted otherwise.

After hearings on the merits, and ample briefing, the FOIC issued proposed final decisions in which it dismissed all three complaints:

In particular, the FOIC agreed with the CMOs and found that they were not the functional equivalent of a public agency. Agreeing with the CMOs’ arguments, the FOIC aptly noted that 1) a CMO is not required to perform its services in the absence of a contract with a charter school, 2) the charter school does not govern, regulate, or control the day-to day operations of the CMO, 3) governmental funding reflects only the consideration for services provided pursuant to a contract, and 4) CMOs are not created by the government. The hearing officers noted that if the legislature wanted a CMO to be a public agency subject to the FOIA, it could have easily defined it as such, as it has for charter schools themselves. Finally, the FOIC noted that an arguably more intrusive law (Connecticut General Statutes §1-218) was not applicable because the value of the CMO contracts at issue was less than $2.5 million.

Under the FOIA, the decisions by the FOIC hearing officers are then subject to approval of the full membership of the FOIC. Two days before the FOIC was to vote to approve and adopt these well written decisions (and ostensibly in an effort to avoid “losing”), the CEA “withdrew” its two cases; the Courant subsequently withdrew its case the night before the scheduled meeting. As a result, the FOIC issued a simple order in all three cases 1) noting that the proposed final decisions were adverse to the complaining parties, and 2) dismissing the complaints.

The author would humbly assert that the decisions are at least binding upon the complaining parties, should they seek to resurrect their requests against the CMOs in the future.

The (Murky) Results of the Legislative Process

In the meantime, the Connecticut General Assembly passed and Governor Malloy signed Public Act 15-239, “An Act Concerning Charter Schools”, which purports to have provisions (via last minute amendments) governing charter school “transparency.”  Ironically, the effects of this new legislation are less than transparent. While there are provisions that govern access by charter schools to CMO records, and there are provisions that govern the right to request from the charter school access to the CMO records that the charter school possesses, there is nothing in Public Act 15-239 that governs or provides a right to make an FOIA request of the CMO itself. Indeed, an attempt to amend the law so as to make CMO “public agencies” (and to make them explicitly covered by the FOIA) was rejected. On its face, there is nothing in Public Act 15-239 that would affect the outcome of these three prior cases, that somehow subjects a CMO itself to the FOIA, or in reality fundamentally alters the law. Charter schools have always been subject to the FOIA, and the law appears to reiterate this basis fact. Nevertheless, it is feared that facts and the law will take a back seat to demagoguery and attempts by legislators at self-congratulation.