After almost five years, New Canaan’s Public Schools Curriculum Leadership Council (CLC) has been declared a public agency that is required to follow the Freedom of Information Act’s (FOIA) public meeting requirements. The Freedom of Information Commission (FOIC) recently ruled that the CLC’s meetings are not administrative “gatherings” but public meetings that must follow FOIA’s requirements.

The ruling comes almost five years after Maria Naughton filed a complaint with the FOIC on October 7, 2020, about a July 31, 2020, meeting of the CLC. While a hearing about Naughton’s complaint was held on November 29, 2021, the COVID-19 pandemic disrupted the FOIC’s handling of the complaint.

State statute requires municipal boards of education to create CLCs. Under the law, local and regional boards of education are required to create a “school district curriculum committee” that “shall recommend, develop, review and approve all curriculum for the local or regional school district.”

Naughton’s complaint stated that she had become aware that the New Canaan CLC held a meeting on July 31, 2020, but “like previous CLC meetings” was not publicly noticed. The CLC also didn’t post a meeting agenda or minutes, as FOIA requires for meetings held by public agencies.

The FOIC found that topics discussed at the July 31 meeting included “district training needs and a review of the COVID 19 Operations Guide regarding synchronous and asynchronous instruction.”

Their decision revolved around whether the CLC was a public agency.

They found that the CLC “performed the functions of the school district curriculum committee” for many years before passing a resolution codifying the practice in September 2020. Under that resolution, the New Canaan Board of Education (BOE) codified its “long-standing practice of delegating to the [CLC] as overseen by the Superintendent of Schools, the responsibility to review, develop, recommend and approve the curriculum” of the school district. It also required the superintendent to report annually on the CLC’s activities and the district curriculum at an annual meeting.

The FOIC concluded that because the CLC was created by a public agency (the BOE) and to comply with statute, it fit FOIA’s meaning of a public agency, specifically including committees created by public agencies, including school districts, in its definition.

But New Canaan disagreed, arguing that CLC’s meetings were “gatherings” rather than meetings under FOIA. “[I]nstead, they contend that such gatherings are “administrative or staff meetings” of the respondent Superintendent, who is a single member public agency.” hearing officer Danielle McGee noted in her report.

FOIA defines a public meeting as any “hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency” when matters under its jurisdiction are discussed. It excludes any “administrative or staff meeting of a single-member public agency” from the definition.

New Canaan argued that because the district superintendent oversees the CLC, its membership is “limited to staff members employed” by the BOE and “attendance at the gatherings is limited to those staff members.”

The FOIC rejected this argument because “the meetings of the CLC are meetings of the CLC (a committee created by the respondent BOE) and not meetings of the Superintendent.” In other similar cases that involved determining whether a meeting was a public meeting or an administrative meeting, the FOIC “examined “the composition of the entity in question, how it was created, its authority, and whether the duties and responsibilities of the staff were independent of their duties and responsibilities as a member of the entity.”

McGee examined each factor and found they led to the conclusion that the CLC was a multi-member public agency and its meetings were therefore public meetings. She found the CLC is staffed by members of the superintendent’s staff and that the superintendent does not regularly attend CLC meetings and does not “oversee” it as the district claimed. McGee also found that the CLC approves curriculum and “is authorized to act without the approval” of the BOE or the superintendent, which makes the CLC meetings unlike administrative meetings.

New Canaan also argued the CLC’s work would be “greatly impeded” if it had to perform its work publicly. “For example, the respondents contended that curriculum writing requires technical expertise and public meeting could lead to confusion for members of the public; developing curriculum requires critical and frank debate between experts in a collegial environment; and that, at times, the CLC may discuss sensitive information such as student records or assessment.”

The FOIC rejected this argument, stating it was “no basis for noncompliance” with FOIA’s meeting requirements and reminded the CLC it could conduct executive sessions if the need arose.

Commission members voted unanimously to adopt the hearing officer’s report, which ordered the CLC to follow FOIA’s open meeting requirements in the future, at an October 22 meeting.

The decision was initially slated to be taken up at a September 24 commission meeting, but was pushed back multiple times at the request of New Canaan’s attorneys.

At the October 22 meeting, New Canaan’s attorney also argued that the FOIC did not have jurisdiction over the case since it was filed almost five years ago. The FOIC has one year to act on complaints after they are received, but that was suspended during the COVID-19 pandemic by an executive order issued by Gov. Ned Lamont. New Canaan argued that when that executive order was lifted, the commission had a year from that date to act on the request.

It’s an argument that other attorneys representing clients who are charged with violating FOIA in complaints made prior to or during the pandemic have made before the FOIC. The FOIC has maintained it has jurisdiction over those cases still remaining from the pandemic, noting courts have not yet ruled on the issue, and are a better venue to settle the issue of how it should be interpreted.

New Canaan also claimed the commission’s ruling “misunderstood” state statute relating to the creation of curriculum, again arguing authority rested with the BOE, who delegated it to the superintendent, who in turn delegated it to the CLC and therefore were administrative meetings.

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