Data used to weight the placement algorithm of Hartford’s school choice program is exempt from the Freedom of Information Act (FOIA) according to a ruling from a New Britain superior court. While the Connecticut State Department of Education (CSDE) claimed a FOIA exemption that applies to trade secrets, the court found an exemption that applies to pending litigation.
In April 2021, Alicia Solow-Niederman requested a number of documents related to the “automated decision-making systems” CSDE uses in school lotteries, including documents that revealed what data the department uses in school lotteries and how it is weighted. Solow-Niederman also sought source code, documents validating the procedures the lotteries use, training materials, and correspondence weighing benefits and concerns about the use of lotteries.
While CSDE provided some documents responsive to Solow-Niederman’s request, it withheld others claiming they were exempt under FOIA’s trade secret exemption.
The law defines trade secrets as “formulas, patterns, compilations, programs, devices, methods, techniques, processes, drawings, cost data, customer lists, film or television scripts or detailed production budgets” from which independent economic value can be derived or are the subject of “reasonable” efforts to maintain secrecy. The definition also includes commercial or financial information that is given in confidence.
Solow-Niederman appealed the decision to the FOIC, which ultimately found that CSDE did not “derive independent economic value” from keeping the lottery algorithm confidential and that students placed as a result of it would not derive any economic value from knowing what was weighted in the algorithm.
Sheff v. O’Neill
At the center of the case is Sheff v. O’Neill, a 1996 Connecticut Supreme Court ruling involving civil rights in education. In April 1989, the parents of 18 children from the Hartford area brought a civil suit against the state alleging that their rights to education and protection under the Connecticut constitution had been violated because the state spent less on school districts that had majority Black and Latino students as opposed to schools with majority white students.
While a lower court ruled in the state’s favor, the Connecticut Supreme Court overturned the ruling and found that the state has an affirmative obligation to provide equal education opportunities to students. The ruling also found that school districts based on municipal boundaries are unconstitutional, finding a statute that drew school districts by town and city boundaries was key to creating racially divided school districts in Hartford.
The ruling resulted in legislative action, several settlements, and a 2022 permanent injunction, which led to a comprehensive voluntary school choice plan intended to increase racial integration that includes magnet schools, regional technical high schools, and open choice public schools in high-performing districts.
As part of the 2022 stipulated agreement, CSDE is required to “reformulate” school choice options and annually analyze data about placements and whether socioeconomic diversity goals are being met. To do this, CSDE collects and weights several categories of data, including address, school preferences, whether a student’s sibling is already enrolled in a school, and socioeconomic factors.
According to the FOIC’s ruling in Solon-Neiderman’s complaint, CSDE provides its placement protocol to Blenderbox, a company that provides digital services and caters to government at various levels, which Blenderbox codes for use in the department’s software system. Access to the placement algorithm is strictly limited.
Superior Court Findings
After the FOIC found that the placement algorithm was not protected by FOIA’s trade secrets exemption, CSDE appealed the decision to superior court.
The court found that the placement algorithm data is exempt from disclosure, but under a different exemption than CSDE initially claimed. The court found the algorithm data falls under a FOIA exemption that covers records relating to “strategy and negotiations” in pending litigation involving public agencies, lasting until the litigation is concluded.
The court found that “because the fundamental legal issue that remains to be adjudicated in the Sheff litigation cannot be said to be finally settled or finally decided such that the settlement or decision cannot be altered or undone” the lottery algorithm is exempt.
“By its explicit terms, the injunction gives the Sheff plaintiffs the right to seek court intervention at any time within the next ten years if the Sheff plaintiffs believe the “material terms” of the injunction are not being complied with.” the court found.
Essentially, the Sheff decision has resulted in 30 years of litigation because while the Supreme Court effectively ordered an end to racial segregation in Hartford schools, it did not state how this could be accomplished.
“Nowhere in the injunction does the court adjudicate what the proper legal remedy may be for racial and ethnic segregation in Hartford public schools and do so in a manner that cannot be “modified” or “altered.” Indeed, the injunction explicitly establishes a process by which the Sheff plaintiffs may, as of right, seek additional court intervention” if CSDE does not demands for integrated education, the court found.
Because the court could not order the release of the placement algorithm data without altering the settlement in a way that could not be undone, they found the records were exempt.
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