By Jeffrey A. Roberts
CFOIC Executive Director
The Jefferson County teacher’s union has taken legal steps to block the Jeffco school district from releasing additional names of high school teachers who collectively called in sick last September.
The Jefferson County Education Association (JCEA) won a preliminary injunction Friday that temporarily bars the district from filling an open-records request for the names made earlier this month by a Golden parent of twin sixth-graders.
A motion filed by the union in Jefferson County District Court last week asserts that teacher-absence files are personnel records and “medical information” that must be kept confidential under the Colorado Open Records Act (CORA). Releasing the names, it claims, would violate the teachers’ privacy and “cause (them) irreparable injury.”
“If the requested records reveal publicly that particular teachers took sick leave on dates when a ‘sickout’ was allegedly taking place, these teachers will be put in the position of having to publicly reveal personal information, such as mental or physical health information or the specifics of individual family problems, in order to defend themselves and justify their use of sick leave,” the JCEA contends.
Fifty teachers at Conifer and Standley Lake high schools called in sick Sept. 19 in an apparent protest against school board policies that forced the closure of both schools. Classes at Golden and Jefferson high schools were canceled Sept. 29 after a large number of teachers took either sick or personal days.
Golden parent Kathy Littlefield told the Colorado Freedom of Information Coalition that she requested the teachers’ names because “I don’t want them teaching my kids. I don’t think they showed much respect for the kids, doing what they did. If you’re going to (protest), do it on your own time.” The teachers, she added, should “take responsibility and show who you are. Why are you hiding yourself?”
After Conifer High teachers called in sick, a news release posted on Facebook said they had taken collective action “to raise community awareness” of the Jeffco school board’s “unilateral decision making model,” in particular expressing concerns about proposed changes to the district’s Advanced Placement U.S. History curriculum and a teacher compensation proposal.
Parent and teacher Kyle Walpole asked for the names of the absent Conifer High teachers right after the school was closed. The Jeffco district twice denied his CORA request, first claiming the information is off limits because it is a personnel record and later contending it is “confidential medical information.”
But the district reversed that decision and released a list of Conifer teachers after a volunteer attorney for the CFOIC wrote a letter noting that Walpole hadn’t asked for any specific reasons the teachers took sick leave and that CORA only requires the withholding of “medical … data on individual persons.”
The personnel files exemption in CORA is limited to information such as an employee’s home address, telephone number, financial information and “other information maintained because of the employer-employee relationship.” The JCEA claims that teacher-absence records are “a classic example of ‘information maintained because of the employer-employee relationship.’”
But CFOIC President Steve Zansberg, a media-law attorney, said courts in Colorado have narrowly construed the exemption to apply only to “personal and private information unrelated to an employee’s public functions…The fact that a public employee did not report for work on a particular day is not in that category.
“Furthermore, case law from across the nation makes clear that public employees do not have a reasonable expectation of privacy with respect to the number of days, or which days in particular, they called in sick to work,” Zansberg said. “Both are sets of information which the public has a right to know.”
At the Colorado Press Association’s annual convention on Saturday, two municipal-law attorneys – Geoff Wilson of the Colorado Municipal League and Kendra Carberry – both agreed that a public employee’s absence for “sick leave” on a particular date does not constitute “personnel file” information and should be disclosed. (A video of that panel discussion is posted on CFOIC’s blog.)
After Littlefield’s CORA request, which was sent by email on Feb. 10., the school district notified the teachers’ union that it intended to release the records “on or about” Feb. 18, the motion says. Littlefield received an email from district community relations assistant Veronica Bennett on Feb. 12, saying that she would “forward the documents” on Feb. 18.
But on that day, Littlefield said she was told that the district was waiting to hear by 4 p.m. whether the JCEA had filed for an injunction. “They asked if I would be willing to postpone getting the records. I said, ‘Why would I want to do that?’”
Littlefield received an email from Bennett at 5:09 p.m. on Feb. 18, saying the records wouldn’t be released “at this time” because a court action had been filed.
Jeffco attorney Craig Hess said the district had been put on notice that the union would be filing for an injunction.
A hearing on the matter is set for May 15.
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