One individual’s Freedom of Information Act requests to the Board of Education and school administration have cost the town nearly $100,000 in legal fees alone to process since October.
That information was revealed during a larger discussion of FOI processes at the Board of Ed meeting Tuesday night.
Town officials have been reviewing the policies and procedures Freedom of Information Act inquiries in recent weeks. The town discussion has centered around the possibility of making a log of FOI requests that is freely accessible publicly. On Tuesday night, the Board of Education had their own extensive discussion about FOI procedures. During the opening public comment, Planning and Zoning Commission Chairman John Sini spoke to board about the FOI log.
Sini said the motivation for a public log would be to work towards a completely transparent local government. “I believe it would be insightful and invaluable for our community,” Sini said.
Sini also pointed out the fact that FOI requests are actually subject to an FOI request themselves. The public log offers information on who is asking and what they are asking for, and Sini suggests this would keep the community informed of “serial FOIers” and potential officials acting in their own interest instead of the town’s.
Sini said that following discussions with First Selectman Jayme Stevenson and town counsel, he will recommend that P&Z create public FOI logs, and that the hope was that his comments helped inform the Board of Education’s decision.
Following public comment, board counsel Tom Mooney stepped up to help with legal opinions and to inform the discussion on FOI requests and procedures. Mooney said that FOIA represents an “important public policy.”
Any recorded information relevant to public business is subject to a FOI request, although there are exceptions. Mooney said the exceptions are all things that make sense, such as security plans or medical information.
Complying with an FOI request is normally a, “modest cost of doing business,” said Mooney, and that has been the case for most districts. Then, Mooney laid out some data that left members of the audience taken aback.
In the 2014-15 school year, the district had six FOI requests. In the 2015-16 year, there were eight requests.
In the 2016-17 year, there were a noticeable increase to 33 requests. From the July 1 this year to the present, which is technically this current school year, there were 13 requests and school has not started yet. Mooney said the costs of all these requests are something he was asked to review, and explained that it’s more than just legal costs, but the costs in terms of burdens on the staff.
Mooney also explained FERPA, the Family Educational Rights and Privacy Act, a federal law that imposes an obligation to maintain confidentiality of students.
“Whenever we get FOI requests, we have to keep in mind that under those exemptions is info under FERPA,” said Mooney. The district has the duty to maintain that confidentiality.
And then, the discussion became even more specific, as a single individual was pointed out.
In Darien, “Mr. Jay Hardison has made 24 separate requests for public record since last September,” Mooney said, adding that, “of those, 16 mention Mr. Rob Trifone by name.”
Mooney added that in a 15 day period, Hardison made four separate requests. Mooney outlined the details of those four requests.
Trifone received a two-week suspension in October 2016 following an incident in which he struck the helmet of a player on Oct. 1, according to a release from the Darien school district. Following that suspension, Trifone was suspended for an additional two weeks “effective immediately.” Schools Superintendent Dan Brenner confirmed at the time that the second suspension was related to the same Oct. 1 incident for which Trifone was previously suspended.
Hardison responded to requests for comment via email, and added that his comments were strictly his opinions and do not reflect views of the RTC or RTM as individuals or collectively. Hardison is a member of both, and sits on the RTM Education Committee.
In an email, Hardison responded to mentioning the football coach in his requests, said, “This has nothing to do with Trifone; however, as the striking incident was perpetrated by him, understanding/discovering what is being covered-up has necessitated multiple requests related to him.”
On June 14, Hardison requested all the invoices relating to the upgrading of Darien High School security cameras, along with the access to security footage shot from a specific range of dates reaching back to May. That is just one request.
Asked about this request in particular, Hardison said, “The district is fighting requests to make the security camera video of the incident, and the witnesses' testimonies, public. The district is using a FERPA defense, which is a complete joke, as the district's witness testified under oath that the student did absolutely nothing wrong. If you google "Misuse of FERPA", most examples are to protect an employee, not a student as the law was intended to do.”
Less than two weeks later, Hardison made a FOI request for a copy of a grievance relating to Trifone. Later the same day, Hardison made another request for all email and other communication referenced in the documents attached to the previous FOI request.
Three days later, Hardison made another FOI request for all Board of Education minutes and communication relating to an agreement between Trifone and the Board of Education.
“That’s just a snapshot of time over the last year, of one person filing requests,” Mooney said.
Mooney told the board that Hardison submitted four complaints to the commission, though two were consolidated, so three hearings were held. Information requested by Hardison was said to be under FERPA protection, and a ruling has not yet been announced. Hardison recently asked for those hearings to be reopened, but that request was denied according to Mooney.
Hardison also responded to questions about the hearings, saying, “What Mr. Mooney didn't divulge (apparently) tonight is that there have been no rulings/recommendations to the full commission for any of these hearings, which are only a preliminary step. [NOTE: Mooney did in fact say no decision was yet made] I requested that they be reopened, because I believe the district's witness perjured herself multiple times in those hearings — based on old evidence and on new evidence revealed as a result of my FOIA requests — some of which weren't fulfilled until after the hearings.”
“Mr. Mooney objected vehemently to allowing this new evidence to be introduced; he knows what it is, as most of it was produced via FOIA requests. The hearings were already closed, so it's not a big deal, and there are other avenues of redress,” he said.
Board member Tara Ochman, upon hearing that 26 of the 33 requests were from Hardison, asked if it was possible to encapsulate just how much time and money it took to fulfill them.
According to Mooney, the requests from Hardison from October until the present have cost the district $87,000 in legal costs alone; that is roughly 320 hours of legal work. The staff time is roughly 640 hours, and the dollar figure for time lost was not speculated upon.
“That’s weeks and weeks, just this year, for one individual,” said Mooney.
Hardison said of the amount of money spent, “As for the dollar amount (I FOIA'd that months ago, as I wanted to make it known publicly, that request still is unfulfilled), it's disgusting; as everyone knows, I abhor the spending/wasting of money that occurs in this town.”
Hardison then added, “However, what those requests have produced/revealed is shocking, and someone needs to stand-up for the student [involved in the striking incident] and family; I don't mind taking the heat for doing that, and I will continue to do it.”
“It should have been the administration and board fighting for them. I think what has been perpetrated upon them by the administration and board is an absolute disgrace,” although he did not mention what the requests have produced or revealed.
Hardison continued to say that what was revealed by his requests would, ultimately, be minute next to what the town will pay as a result of what was found, “It is my understanding that the family has made multiple requests for the board to employ an independent investigator, which the board has refused to do. Had that been done, the town wouldn't have spent a penny fulfilling FOIA requests.”
“But, I'm confident that, when the facts are revealed, the amount spent on these FOIA requests will pale in comparison to the amount this town is going to pay out in settlements. And as much as I hate spending money, this family deserves it,” he said.
The town side is also considering publishing a public FOI request log. Last month, First Selectman Jayme Stevenson said she had been in discussions with Town Counsel Wayne Fox about the possibility of putting the policy into effect.
Brenner said that for every hour of legal, the administration spends two hours doing its part fulfilling the FOI requests, with the bulk of the work falling on the human resources department, specifically Marjorie Cion who is the Director of HR. Those who work fulfilling those requests are forced to put aside the tasks with which they are normally charged.
All the other requests together cost the district $19,000 in legal fees.
“Under the law, we don’t have the right to require a person to justify their request,” Mooney said, adding that when it comes to this particular individual, “Mr. Hardison has not explained why he’s made all these requests, and we have no option other than to deal with our legal obligation as a district.”
Hardison responded to questions of his motives by saying, “Tom Mooney (and Brenner and the board) knows exactly the reasons for those requests,” but did not specifically say what the reasons were.
Hardison is on the RTC and sits on the Education Committee of the RTM. He was one of the most outspoken voices against a number of the capital projects on the Board of Education budget as being poor ways to spend taxpayer money.
Board of Education members were clearly frustrated by the fact that there is no legal recourse to deal with the situation they find themselves in. A number of board members recalled the special education scandal that came up years ago, and the large number of FOI requests from that year. The distinction made was that in that case, it was 25 parents with one request each, and that the reasoning and result were clear as requests were made and the problem was uncovered. The board seemed to view the situation with Hardison looks to be one individual with 25 requests that are not uncovering a problem and go unexplained.
Hardison closed his email response by saying, “In conclusion, I won't stop fighting, for this student and his family, against an administration and Board of Education that I believe to be perpetrating a massive cover-up — initially for Trifone, now to protect themselves. It's time to drain the local swamp.”
Hardison did say he would be in favor of making the FOI request log public, as it brings out another question about the requests produced.
Board members were also in agreement that as these FOI requests pile up, school administrators and officials are put in a position of having to spend all their time reviewing and redacting emails for a single person rather than their primary job, working for students.
The board was also aware of the fine line being walked. There is a desire for transparency, but also a desire to avoid being a deterrent. The board did not want to put the public in a situation to be uncomfortable about asking for information that is within their legal rights to obtain. However, Jill McCammon pointed out that if the board does not know why they are being FOI’d, it becomes difficult to respond.
The reason for FOI requests is typically open and spoken about, according to Mooney.
“In most cases there is a dialogue, people have a legitimate question. We want to provide that public information. It can certainly be part of the conversation and it often is,” Mooney said.
A potential major breaking point for this could come as budget season draws closer. The board could be put in a position of having to budget money to fulfill all these requests.
Michael Burke pointed out that since the board has no legal way to limit the requests, nor a way to find out what the endgame of the Hardison’s requests might be, it would need to consider erring on the safe side next budget season when it comes to allocating costs.
As the board continues to work towards being more transparent, something that it has pledged to work on, it would seem that a public FOI request log is more and more likely. Brenner said that the administration, along with Mooney, would compile a sample log for the board to review.
At the federal level, FOI request logs being public is not uncommon. However at the town level, the FOI request log being public is fairly rare.
The first day of school is Thursday, Aug. 31. next Board of Education meeting is Sept. 12.