One of Inside Investigator’s longest-standing anti-corruption projects involves allegations of sexual misconduct at public universities. Those are long-standing projects in no small part because of the length of time University of Connecticut (UConn) and Connecticut State Colleges & Universities system (CSCU) officials have taken to respond to our Freedom of Information Act (FOIA) requests.
Responses from both schools have taken years and raised multiple issues–including incomplete responses and suspect redactions–that have led us to lodge complaints with the Freedom of Information Commission (FOIC).
Among the issues, of course, is that public agencies have no limit on how long they can take to respond to FOIA requests in Connecticut’s law. Maine is the only other state in New England that doesn’t give agencies a maximum time frame by which they must not only acknowledge a request but turn over records.
In an attempt to make a concrete point about exactly how big an impediment this is to FOIA requesters and to using the law as a transparency tool, I submitted identical public records requests to public universities across the Northeast seeking records related to investigations of sexual misconduct allegations by faculty.
Having submitted public records requests in a number of different states, and having received records in a much speedier fashion in states with real-time limits on public agencies, I anticipated we’d be waiting for a response from UConn and CSCU long after receiving a response from other public universities in the region.
I did not anticipate running into issues with exemptions for personnel records.
Most states have a public records law exemption that prohibits the release of personnel records if doing so would constitute an invasion of personal privacy. Many states also have a process allowing current or former personnel whose records are responsive to a request to object to their release within a certain time frame.
But this is one area where both schools actually don’t deserve any censure, at least from my perspective. Neither UConn nor CSCU has cited the Connecticut FOIA statute’s exemption for personnel records, which allows agencies to withhold “[p]ersonnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy” to block the release of records.
To date, I’ve received two responses from public universities refusing to turn over any records, even with redactions. Both responses, one from Kutztown University in Pennsylvania and a second from the University of New Hampshire, cited their state’s records law exemption.
The University of New Hampshire (UNH) denied any responsive records to our request, citing the New Hampshire Right to Know Law’s exemption for personnel records.
“These records have a high privacy interest because they reveal intimate details of the lives of faculty or staff involved in investigations of claims of sexual misconduct.” a UNH official wrote in a letter articulating the reasons behind their denial.
The state’s law has an exemption for “[r]ecords pertaining to internal personnel practices; confidential, commercial, or financial information; test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examinations; and personnel, medical, welfare, library user, videotape sale or rental, and other files whose disclosure would constitute invasion of privacy.”
UNH further exclaimed that they carried out a balancing test, as outlined by the New Hampshire Supreme Court, and found there was “objectively a privacy interest at stake that would be invaded by the disclosure,” “disclosure would not inform the public about the conduct and activities of the institution,” and “the public interest in disclosure is not greater than the institution’s interest in non-disclosure and the individual employee’s privacy interest in non-disclosure.”
Even being familiar broadly with the personnel records exemption and its application in several states, I find this response flabbergasting. By definition, the release of non-public-facing records informs the public about an institution’s activities and conduct.
There is, of course, an institutional interest in the nondisclosure of embarrassing, inappropriate, or potentially illegal conduct. Public records laws are a vital accountability tool because of this. They speak to a culture where openness is the default, and a particular interest in disclosure doesn’t need to be articulated because the availability of information about the institutions whose actions have influence and power over people is fundamentally recognized as good for civic society at large.
There are understandably some limits on this, particularly where victims and innocent bystanders are concerned, but they should not apply by default to cases where laws or codes of conduct at institutions funded by public dollars are concerned.
And while the idea of a balancing test seems like a good way to sort out the competing interests of different factions in an equitable and fair manner, how fair is it actually when the institution that could be damaged by the release of information about which it has superior knowledge not only gets to articulate the arguments in its own interest and the public’s but issue judgment on them?
Pennsylvania’s law goes further than New Hampshire, prohibiting the release of “written criticisms” of public employees, “[g]rievance material, including documents related to discrimination or sexual harassment,” and “[i]nformation regarding discipline, demotion or discharge contained in a personnel file.” The last does not apply a final action that results in an employee’s demotion or discharge.
It also has a separate exemption for records of noncriminal investigations, including if release would be an invasion of privacy.
Unlike New Hampshire and Connecticut, there’s not even the opportunity for a balancing test to be conducted. The law simply prohibits the release of many allegations of misconduct.
Connecticut also has a balancing test, established by the state supreme court and following a standard from common law tort cases, that specifies release of personnel records invades privacy only if a record does not relate to a legitimate public concern and if disclosure would be highly offensive to a reasonable person.
It’s pretty clear that sexual misconduct by faculty and public universities’ handling of it is in the public interest.
Even with the state’s more limited definition of an invasion of personal privacy, records about misconduct are still incredibly difficult to obtain. There are other exemptions that limit the release of information, including those that protect collective bargaining processes and those that protect students. Plus, of course, the lack of a real-time limit on how long agencies have to respond makes it more difficult for stories of misconduct to come to light. When this happens, it not only means journalists have to rely on witnesses or victims coming forward, it also increases the risk of offenses being repeated while we wait for information to come out.
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