In a recent non-binding opinion from the Attorney General’s Public Access Counselor (PAC), the PAC held that a notice to remedy and the related underlying documents were subject to disclosure under the Freedom of Information Act (FOIA).  A board issues a notice to remedy when a tenured teacher engages in serious misconduct that could lead to dismissal.  The notice typically includes a detailed description of the misconduct at issue, as well as directives to correct the misconduct.

In this matter, a reporter sought records from a school district relating to the discipline of a district employee and the reasons for the remedies imposed upon the employee.  The district provided two documents in response to the request: (1) a resolution adopted by the Board approving the notice to remedy and (2) the notice to remedy, which was an exhibit to the resolution and which referenced a letter to the employee. The referenced letter described in more detail the employee’s unprofessional conduct and the directives.  The district asserted the letter was exempt under several FOIA provisions. 

The district first argued that the letter was exempt from disclosure pursuant to Section 7(1)(n) because it related to a public body’s adjudication of an employee disciplinary case and did not involve the final outcome of the case.  The PAC did not agree, holding that the matter was not an adjudication.

The PAC next considered the district’s argument that the letter was exempt under Section 7(1)(a) of FOIA because it would violate the prohibition contained in Section 24A-7.1 of the School Code and Section 11 of the Personnel Records Review Act against the disclosure of performance evaluations.  The PAC concluded, however, that the letter did not involve a performance evaluation because it described the instances of misconduct and the directives related to the misconduct instead of involving an evaluation of an employee’s overall performance.

Finally, the PAC determined that the December 27, 2010 letter was not exempt from disclosure under Section 7(1)(f) of FOIA, which exempts “preliminary drafts, notes, recommendations, memoranda, and other records in which opinions are expressed or policies and actions are formulated.”  The purpose of this exemption is to exempt from disclosure pre-decisional materials used by a public body in its deliberative process.  The PAC found that this exemption did not apply because the district had not established to the PAC’s satisfaction that the school board relied on the letter in its deliberative process regarding its decision to approve a notice to remedy.

Although the PAC’s opinion is non-binding, it provides potentially persuasive authority limiting a district’s ability to claim that materials related to or referenced in a notice to remedy are exempt under FOIA.  If a school district is concerned about the potential disclosure of the underlying documents to a notice to remedy, the school district should work with its attorney and closely review this decision.