Saturday, November 26, 2022

Greenville school board asks for more time to review FOIA denial appeal, associated fees

Greenville Public Schools Board of Education Treasurer Jim Anderson, left, shares his thought’s during Monday’s meeting on an appeal from a city resident over a Freedom of Information Act denial, as Board Trustee Michael Huff listens. The board voted to wait another 10 days before making a decision on the appeal, asking for additional review by legal counsel. — DN Photo | Cory Smith

GREENVILLE — A citizen’s request for information utilizing the Freedom of Information Act has resulted in action by the Greenville Public Schools Board of Education for additional review by legal counsel — along with several other accusations.

During Monday’s meeting of the Board, board members entertained a FOIA denial appeal from city resident Jon Behrends, who asked the board grant two separate appeals regarding FOIA requests he has submitted to the district. 

According to attorney Katherine Wolf Broaddus of Thrun Law Firm, representing the school district, Behrends requested via FOIA from the school district a series of emails between former superintendent Linda Van Houten and “a series of other individuals.”

Behrends’ appeal comes after a portion of results from his FOIA request were redacted, with the school district’s FOIA coordinator, GPS Assistant Superintendent of Human Resources and Operations Lisa Steed, citing the “frank communications” exemption of the FOIA statute in her reasoning. 

Per the statute, frank communications pertains to communications and notes within a public body or between public bodies, of an advisory nature, to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. 

In such cases, Wolfe Broaddus said the district makes a determination as to whether communication between school officials and employees “clearly outweighs” the public’s interest in disclosure.

“Within the documents that were disclosed, certain exemptions were made,” she said. “The exemptions had to do with personal information about students, attorney-client privilege communication and information that the district determined was subject to the frank communications exemption under FOIA.”

Broaddus said the district’s position via Steed is that such information redacted in the FOIA request falls under the exemption.

“It was really a deliberative communication going back and forth between the superintendent and the individuals,” she said. 

In addition to appealing the denial, in desiring non-redacted information, Behrends also asked the fees he has been charged for various FOIA requests be adjusted. 

According to Wolfe Broaddus, Berhends is disputing the amount of time needed to perform searches for the information he is seeking. According to Steed, the increment of time used was a rate of per half hour, whereas Behrends is asserting that the minimum charge should be a rate of a quarter of an hour. 

Additionally, Behrends is appealing a fee of $15,000 for one of his FOIA requests. 

“The individual is also appealing the fee for the number of emails that were hit in one of the searches,” Wolf Broaddus said. “It hit over 20,000 emails, assessing a large fee of over $15,000.”

However, before the board could discuss Behrends’ appeals, one member steered the narrative back a few months in stating he felt no FOIA request should have been necessary in the first place. 

‘Why aren’t we more transparent?’

Board Treasurer Jim Anderson said he believes Behrends’ multiple FOIA requests, made throughout the past year, all come down to an original request he made, but was denied, to obtain the names of members of the social emotional learning (SEL) committee that met at various times throughout the past year to evaluate and recommend various SEL curriculums throughout the school district. 

Greenville Public Schools Assistant Superintendent of Human Resources and Operations Lisa Steed shares her thoughts during Monday’s meeting on an appeal from a city resident over a Freedom of Information Act request that she denied in part (redacted) as attorney Katherine Wolf Broaddus of Thrun Law Firm listens. The board voted to wait another 10 days before making a decision on the appeal, asking for additional review by legal counsel. — DN Photo | Cory Smith

“For whatever reason, in this case, it started out, ‘let’s not tell people in the public who is on our public committee.’ That began the whole chain of events, in terms of trust,” he said. “It doesn’t make sense to me why we do that. We are Greenville Public Schools. Information like that is public.”

Behrends, who was in attendance, stated he submitted a FOIA request in January of this year “to find out the names of who was on the SEL committee.” 

“I asked the superintendent at the time (Van Houten) if I could have the names and she refused to provide that information,” he said. “My only alternative was to FOIA emails.” 

Anderson then took his comments a step further, suggesting that not only should the SEL committee members’ names be made public, but that Behrends should not have to pay a fee, but rather be paid for his efforts. 

“In fact the person who filed the FOIA request — I haven’t talked to him directly about it — but in my opinion, we almost should be paying him, rather than trying to charge him, for just trying to get information that I believe should be out there publicly anyhow … It’s mind boggling we are even in this place to begin with.” 

Anderson then said he felt that between the redacted information and one of Behrends’ FOIA requests resulting in discovery of more than 20,000 emails, that the school district was taking measures to actually make information more difficult for the public to obtain. 

“The second thing is, our district almost seems to be going out of its way to prevent the information from getting out,” he said. “First, by doing a search that comes up with 20,000 emails? Anybody with a brain knows that somebody searching for some of these things doesn’t want every communication in the district. So we are kind of throwing up roadblocks.

“I don’t know why we would ever want to charge someone who just wants information about what’s going on in the public,” he continued. “That’s why we have reporters at our meetings. The old saying is sunshine is the best disinfectant. I’ve been on committees, but I can’t remember being on a committee where we can’t disclose (who is on it). Why are we even in this place? Why don’t we just directly answer questions when they ask, ‘who is on this committee?’ The question is, why aren’t we more transparent?” 

‘People are scared’

Interim Superintendent Matthew McCullough said while he wasn’t the one who denied Behrends’ request for committee member names, he explained the reasoning behind the decision. 

After convening a committee of experts, including school social workers, psychologists, mental health professionals, behavioral specialists and teachers, to work on creating new SEL curriculums, McCullough said he had a hard time finding people who would remain on the committee. 

“I told Linda, my committee is already down 10 people. The reasons why? People are scared,” he said. “They want to do what is best for kids, but they feel they are being attacked in the community. Even though they professionally believe they are doing what is best for kids, they’ve received private messages and other things online, to make them feel unsafe. They are worried.”

McCullough said he told Van Houten to make the choice that she thought was best. 

“It seems she made the choice, and rightfully so, that she wanted to protect the nature of the teachers because they didn’t feel safe,” he said. 

McCullough said he also took issue with Anderson’s assertion that the district was not being transparent enough with the public, especially with SEL. 

“Ultimately with transparency, we’ve had over six days of showing (SEL) lessons where people could come see them and we made additional appointments with anybody that wanted to look at the content separately,” he said. “The only thing I didn’t do was make my assistant come in on a Saturday. That was one request that we didn’t grant.

“But to challenge that there has been no transparency is hard for me to take,” he continued. “I believe everybody that’s been asked a personal question has tried to answer it.”

Board Secretary Ron Billmeier then asked Anderson directly why he was so focused on the release of committee member names. 

“I’m curious, what benefit it would be to even know the committee member names?” he asked. 

“The benefit is this — If you look at what is going on in the county, say windmills or whatever it may be … What if another government body formed a committee, but did not tell you who was on it, and then came up with the rules?” he answered. “That’s the reason we are a public education body and not a chairman-model service committee. People know they can ask questions. As far as feeling safe, I have not seen any evidence that anyone is being attacked or hurt or anything. Why can’t people know who to go to, to ask questions?”

‘ISD, social media, facebook, FOIA, memes, guns or CRT’

Bringing the focus back onto the appeals themselves, Wolf Broaddus said due to the wording of Behrends’ FOIA request, there was no way to avoid a result of fielding more than 20,000 emails. 

Wolf Broaddus said Behrends’ FOIA request asked for emails containing the words and phrases “ISD, social media, facebook, FOIA, memes, guns or CRT” throughout the school district over a period from Aug. 1 to Sept. 15 of this year. 

In asking for such broad terms, Wolf Broaddus said an end result such as 20,000 emails was inevitable. 

“That’s how you get to 20,000 emails because those are such common words that are in our vernacular,” she said. 

Steed further explained the complications that come with a FOIA request generating 20,000 emails, stating that unless Behrends asked for email communications between specific individuals or school departments, the school’s technology team must do a district-wide search of emails. 

As an example, Steed said every teacher in the district is required to place a signature at the end of their email that, among other phrases, contains the word “Facebook.” 

As a result, every email sent by a teacher would have been flagged under Behrends’ request, as he worded it.  

Steed said she also made efforts to help Behrends’ draft a new FOIA request that wouldn’t have resulted in such an excessive number of results.  

“You say you are concerned with how John felt, but I met with John in the lobby when the FOIA request came out showing 20,000 emails,” she said. “I thought I was very generous in trying to explain how the emails popped up, and if he was looking for something specific, I tried to help him understand how to write a FOIA request to make it more specific, to be able to eliminate some of the things that he wasn’t necessarily after.”

Regarding the fees, Steed stood her ground again, saying that while Behrends may have previously been charged at a rate less than a half-hour of an employee’s time in the past, regarding recent FOIA requests, she said her new estimates are more realistic to the time required of the school’s technology department. 

“The fees when they are assessed are very much an estimate. That is assessed by the technology team, for how long it takes them to search and receive those records,” she said. “I personally feel I’ve been very generous with those fees, with the amount of hours that it takes for people to process these things. It’s not just me and it’s a lot more hours than what we are actually charging for. I would love to be able to give information for free, but that would require a budget-add, where we’d have to add a position for someone to do that, because of the amount of hours needed. If that’s something the board wants to consider, I’d be all for that.”

Billmeier defended Steed’s fees as presented to Behrends. 

 “Quite frankly, I look at the amount of time that was involved and I think it’s a pretty reasonable, cheap fee,” he said. “Think of all the time that’s been wasted and involved with multiple people.” 

“The fees could have been avoided if we just gave him the (committee) names,” Anderson countered. 

In total, Steed said Behrends has been charged $197 for the FOIA requests he has received, which included more specific requests such as a request for emails from Van Houten to Baldwin Heights Principal Michael Walsh from Aug. 18 to Sept. 7 of this year, which yielded 36 emails. 

10-day extension and legal review

Not able to reach a consensus, the board entertained a motion that it seek additional legal counsel on whether or not the emails being redacted qualified for redaction under the exemption of frank conversations. 

“I went through the exception, it’s not cut and dry,” Trustee Charlie Mahar said. “I don’t think it would be the worst idea to have a law firm see if we are on the right track for what we are considering is a frank conversation.” 

Members of the board voted unanimously, following the parameters of a 10-day extension of the FOIA denial appeal, to have legal counsel review the exemption claim. 

Moving on to the fees, the board moved back and forth on this subject until Billmeier made a motion that Behrend’s request that the fees be reduced be denied. 

However, not everyone was on board with this direction. 

“I think as a public school system, the least amount of cost to anybody should be important,” Mahar said. “He (Behrends) obviously feels like he was overcharged and that he’s not being treated fairly. I would like to see him charged what he was before, so I’m going to vote no.” 

With the board split on what to do, Trustee Michael Huff suggested the board take action as it did with the first part of the appeal. 

“We’ve used a lot of meeting time here on this issue,” he said. “It seems like it’s something we could have fixed before some of these issues were raised to this level. I wonder if we table this 10 days, too.” 

Billmeier then withdrew his motion, with the board voting unanimously on a new motion to wait 10 days until reaching a decision on the fee portion of Behrend’s appeal. 

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