Privileged information? Some teachers’ contracts attempt to skirt law

From John Curry, December 23, 2007
Subject: A friend of and for all Ohio educators although....some groups and individuals seem to have forgotten that, haven't they?

"Later, the court used that opinion to rule in Sensel v. Leone that a superintendent who received anonymous letters complaining about a basketball coach was within the bounds of public records laws when he destroyed the letters."

Privileged information? Some teachers’ contracts attempt to skirt law

The Times-Reporter (Dover-New Philadelphia)
By NOAH BLUNDO, T-R Staff Writer
December 22, 2007

Teacher personnel files are public records open to prompt inspection under Ohio law, but provisions in contracts negotiated between some teachers’ unions and school boards in Tuscarawas County give incorrect impressions about access to those records. The T-R reviewed the teachers’ union contracts of the Dover, New Philadelphia, Claymont, Indian Valley, Strasburg, Tuscarawas Valley and Buckeye Career Center school boards after an investigation by the Columbus Dispatch found many districts statewide had contract provisions out of line with Ohio’s public records laws.

Parties negotiating a union contract “cannot nullify the Public Records Act’s guarantee of public access to public records,” according to Ohio Sunshine Laws 2008, the manual state Attorney General Marc Dann’s office publishes, also known as the Yellow Book.

Claymont City Schools’ contract, which expires June 30, was the only one reviewed that has language explicitly blocking public viewing of personnel files.

“Official personnel files are privileged – open to inspection only by the bargaining unit member, treasurer, or members of the administrative staff, central office staff, the board and/or their representatives,” the contract states.

That language was negotiated before the tenure of Claymont Superintendent Ryan Delaney, but he said it’s not something he would abide by anyway. Only information such as Social Security numbers and medical records – for which there are specific exceptions – could be withheld from a request for a district employee’s personnel file, Delaney said.

Ed Henry, president of the Claymont Education Assn., said he had the same understanding of the law as Delaney – that the personnel files are public – and wasn’t sure how that provision got into the contract.

Strasburg-Franklin and Indian Valley Local school districts’ contracts with teachers also contain language that puts conditions on viewing of personnel files.

Strasburg-Franklin’s contract states teachers must be notified immediately of the name of anyone asking to see his files, and the school board must keep a record of who reviewed the file, when and why.

However, public records laws allow anonymous requests with no reason given. Any public office is allowed to ask for name and reason. Upon doing so, they must inform the requester that he isn’t required to answer, according to the Yellow Book.

Indian Valley’s contract forbids the school board from releasing personnel files until the employee has been notified and been given a “reasonable opportunity” to be present when the file is opened.

The Yellow Book states an office must be “prompt” when someone asks to inspect files and must provide copies “in a reasonable period of time.”

Jeff Clark, who works in the attorney general’s office doing public records training, said that while his office does not give specific legal advice, generally Ohio law states a contract provision cannot interfere with the right to prompt inspection.

So, presumably, the “reasonable opportunity” given teachers could not exceed the length of the “reasonable amount of time” in which copies were given, or the “prompt” time frame in which the files must be presented for inspection.

Hollie Reedy, director of legal services for the Ohio School Boards Assn., said that when her office assists districts with collective bargaining, districts usually are advised against including language like the above.

“Districts should not promise to do something for someone that they can’t legally do,” Reedy said.

“You also have to look at how long a provision like that has been around,” Reedy said, because the contract language might have been put in long ago and just never taken out.

Although his district’s teacher contract doesn’t limit viewing of personnel files, Dover Superintendent Bob Hamm also said that sometimes contracts will have provisions that no one understands the reasoning for simply because they were put in so long ago.

A murkier realm of public records deals with anonymous records.

The majority of the contracts the T-R reviewed had provisions against placing anonymous materials such as complaints in a personnel file.

Ohio law defines a record as any item kept by a public office that is stored on a fixed medium; created, received or sent under the jurisdiction of the office; and documents the organization, functions, policies, decisions, procedures, operations or other activities of the office.

How that definition applies to anonymous notes isn’t set in stone, although the courts have ruled they aren’t records in some cases.

In Beacon Journal Publishing Co. v. Whitmore, the Ohio Supreme Court ruled that a judge who received letters attempting to sway her sentencing decision in a rape case did not have to release the letters because they weren’t used to influence the sentencing and thus didn’t document an action of the judge’s office. Later, the court used that opinion to rule in Sensel v. Leone that a superintendent who received anonymous letters complaining about a basketball coach was within the bounds of public records laws when he destroyed the letters.