The Freedom of Information Commission (FOIC) is set to hand Inside Investigator a significant victory in our ongoing bid to comprehensively document sexual misconduct by faculty and staff on Connecticut college campuses.
Read the UConn Proposed Final Decision >
Read the CSCU Proposed Final Decision >
In September 2023, Inside Investigator filed two identical Freedom of Information Act (FOIA) requests with the University of Connecticut (UConn) and Connecticut State Colleges & Universities system (CSCU) seeking “all records pursuant to any investigation into sexual misconduct” from January 1, 2018, as well as disciplinary records and employment contracts. Over a year later, neither school had turned over any responsive records. UConn also hadn’t provided any status update on our request.
When we did eventually get initial batches of records from both schools, there were clearly issues: missing documents, such as attachments to investigation reports, that clearly fell within the scope of the request, and redactions made under the Family Educational Rights and Privacy Act (FERPA) that seemed well beyond the scope of that law. In both requests, we provided a list of documents referenced in those that had been turned over to us that we believed to be outstanding, as well as redactions we believed had not been properly claimed. Both schools’ responses to this raised more issues, as did the arguments both schools’ attorneys made in hearings on our complaints.
Read our investigation, Partial Record: Sexual Misconduct and Transparency at CSCU
We learned from UConn’s testimony at a hearing that they had actually closed our request, without notifying us, and considered the list of documents we believed should have been responsive to our initial request language as a supplemental request. They also testified that they had no duty to turn over those underlying documents we had identified that we believed should be responsive. The documents they did turn over contained summaries of the contents of the documents we were seeking.
UConn officials also refused to turn over unredacted copies of records where FERPA exemptions were in dispute for in camera review by the FOIC hearing officer, claiming that doing so would by itself violate FERPA. They cited a memo from the U.S. Department of Education as preventing them from doing so and said they needed a subpoena to order them to turn over unredacted records.
Their argument rested on the claim that there was no dispute that the records in question were ‘education records’ within the meaning of FERPA. Under the law, education records must directly relate to a student and be maintained by an education agency.
But the FOIC has previously ruled that investigation records of the type we were seeking are not education records. In UConn’s case, the FOIC therefore declined to rule on UConn’s argument that the DOE memo prevented them from turning over unredacted copies from internal review. They found UConn had failed to comply with an order from the commission and stated that, while they would refrain from referring the school to the state’s attorney for criminal prosecution this time, they would consider doing so if they failed to comply with orders in the future.
The FOIC also found UConn’s response, and claim they did not have to provide underlying records responsive to our request because they were summarized in other records, was unreasonable and unilaterally narrowed the scope of our request. They also rejected an insinuation made by UConn during the hearing, where UConn suggested that because our request was “vague,” it was our responsibility to narrow responsive records.
“To the extent that the respondents believe the burden is on the complainants to identify outstanding records in order for the respondents to provide such responsive records, this Commission, likewise, rejects such arguments outright.” the proposed decision reads.
The FOIC found there are likely a “significant number of pages of responsive records” outstanding and that UConn did not take its FOIA duties seriously. They are proposing to fine the school $500 over the handling of our request.
CSCU’s handling of our request raised similar issues. We learned eight months after the request had been filed that the school had consolidated the request, which had initially been sent to each of its six campuses, under their Board of Regents. Delays in handling the case, which saw us go over a year without receiving records, were attributed to staffing issues.
On the date CSCU did provide a series of emails containing responsive documents, we asked if we could expect any more documents or if the request was complete. CSCU said they did not expect to turn over any more records.
Later, they did provide additional records in response to our list of documents we believed to be outstanding. They also made changes to redactions. This was a significant point in our argument before the FOIC: that CSCU was not complying with the spirit of FOIA. They’d turned additional records over on several occasions after telling us the request was complete, so how could we believe it truly was complete?
At a hearing on the complaint, CSCU officials argued that when they said they didn’t anticipate sending additional records, they simply meant on that day, not that more records would not be turned over.
At one point, CSCU also insinuated during the hearing testimony that had we used different language in our request, specifically a word other than “pursuant,” they likely would have interpreted it differently.
Again, the FOIC found CSCU officials’ interpretation of our complaint was “unreasonably narrow” based on this pattern. They noted that while CSCU did have staffing issues, they appeared to have no protocols for handling requests that crossed campuses. Staff, for example, should have entered our request into their GovQA system, but did not.
As in our complaint against UConn, the FOIC found CSCU had not properly claimed FERPA exemptions because the records at issue were not education records. They specifically called out what I consider a particularly egregious example of misuse of FERPA.
CSCU redacted the name of a school sports team that was coached by an employee accused of sexual misconduct, arguing that revealing the name of the sports team could identify the student victim. While our goal has never been to jeopardize any of the students reporting abuse, it is important that school officials take their duties under FOIA seriously.
FERPA is a frequently abused exemption. There are a number of examples of schools using it to shield information they do not want to release because it would reflect badly on them. Ensuring schools know the limits of that exemption and are not using it to avoid transparency is important in ensuring those who are abusing their positions are not given a shield to escape accountability.
The FOIC’s preliminary rulings, which the commission will vote on at its meeting next week, are significant because they substantiate our complaints on almost every single point. They’re a significant win for transparency.
There is no doubt that both of these requests were large requests. Despite frequent objections about the burden of small requests from public agencies, large requests are valid. If agency officials, who have better knowledge of the non-public-facing public records they maintain, believe narrowing a request or changing the scope would better produce responsive records and speed up their compliance efforts, they can communicate with requesters and try to persuade them to alter their request.
But that didn’t happen in these cases. And that failure to communicate is the source of almost all the issues we had with both CSCU’s and UConn’s responses.
Because this is a sensitive topic for those involved, and victims may not be comfortable speaking with the press, it is all the more important that schools take their legal responsibilities under FOIA seriously and proactively communicate with requesters. FOIA is a crucial transparency tool that forces public officials to disclose information they may not want to because it damages them.
When agencies fail to take their responsibilities seriously in cases involving sensitive topics like sexual misconduct, whether maliciously or not, they can help create a black box that prevents the public from learning about misconduct by taxpayer-funded officials and risks misconduct continuing. It’s our responsibility as journalists to ensure that doesn’t happen.
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