A FOIA Attempt

At the first real meeting of the new School Board, returning member Jennifer Bergel accused the six incoming members (the six-pack) of taking secret straw votes on the Board's legislative packet in advance of the meeting.



I knew that the other returning board members were also unhappy about the way that the legislative issues were raised by the six-pack, and that there were emails involved, so I was curious what exactly what was in those emails.

I decided to find out more about what had happened, so I asked the Public Information Office for copies of the emails to which Ms. Bergel referred. I got a quick response that the cost for processing my FOIA request would be $95.34. Knowing the amount of staff time required to track and respond to even simple FOIAs, I think that's a fair number. Mine was probably the simplest FOIA request possible, so I think we can safely assume that $95 is the minimum cost of a FOIA request.

But I figured that I really didn't need a formal FOIA action if the Board members involved would just send the emails directly to me, so I just asked them:

January 6th
School Board members~

I was very interested in the debate regarding the legislative packet changes, and in particular Ms. Bergel's statements about straw votes in advance of the meeting. I understand that there were some emails back and forth on this subject. I contacted the Public Information Office for copies of the emails under FOIA, but that will cost me $95 due to the staff time required. In the spirit of transparency, would you please forward the emails to me directly? The emails will be used for publication.

Thanks in advance.

~John

I heard back from just two board members, Jen Bergel and Tom Reed. None of the new six-pack responded to me, although Eric Hornberger did talk with me about it yesterday. Tom Reed provided two of the emails. Here's how it got started from his perspective:

From Eric Hornberger:

December 30th

Brenda, Jen and Tom,

Attached, please find a chart of 8 sections within the adopted 2012 Legislative Program that at least 3 of the 6 incoming new SB members have concerns about being included in our program. You will notice that 3 of those 8 sections already have 5 or more "straw votes" against them among six of us. I have highlighted these in yellow in the attached chart. We plan to propose motions eliminating these sections from our legislative program at the earliest opportunity.

The remaining five sections currently appear to fall short of receiving the necessary 5 votes to eliminate them but at least three of us have voiced opposition to them. If one or more of you are also in opposition to them, they may reach the necessary 5 vote threshold to also have them removed. I have included them to provide you with this opportunity to include them among those we already plan to bring before the new Board.

Please let me (and the others) know if you have any questions. Meanwhile, I will be working with Ed and Sam to arrange to have appropriate motions brought before the new Board as soon as possible to ensure that the 2012 Legislative Program is in fact that of the new School Board to the maximum extent possible.

Thank you, Eric

The attached document shows clearly that one way or another, the six-pack took votes out of public view. Eric Hornberger refers to it as a straw poll, as did Jennifer Bergel... and its legality would be questionable after the swearing in on January 3rd. The overall effect of the email is not just the straw polling, though. The approach of the six-pack appears to be "We're going to do the work we want to do, and we'll let you veterans know if we need you for an extra vote or two now and then." More than the straw-polling, I think, this is what rubbed the veteran members the wrong way.

And so came the angry response from Tom Reed:

December 30th
Eric;

[First Sentence redacted by Tom as it did not relate to the Legislative Program.] What the Hell are you all afraid of? How pathetic and disappointing that all of the 'new' members felt a need to meet in secret and exclude the rest of the members-elect on this and only you and your 'gang' know how many other issues. I asked for input on the Legislative Program even before the current Board voted, but like nearly everything else, my e-mails went unanswered. Transparency was supposedly a key plank of most of our campaign platforms, I guess it was only meant to apply to the Staff.

Tom

Tom Reed's email prompted other emails in response, but nobody has provided those to me.


As both Tom Reed and Wayde Byard pointed out to me, the six new school board members were entitled by law to have as many secret meetings or straw votes or group emails as they wanted prior to taking office on January 3rd, and emails between them would not be subject to FOIA requests, although emails they sent to sitting Board members would be.

As I mentioned above, Eric Hornberger spoke to me about this matter yesterday. I credit him for his candor. He said he hadn't responded to my request for the emails because as someone who was not on the Board at the time the emails were written, he didn't think it was appropriate to release sitting Board members' correspondence. He made the case that the straw vote was the only way they could lend legitimacy to the legislative packet by modifying it before meeting with legislators before meeting with them. He described his letter as an attempt to include the three returning members, not to exclude them, and to be transparent. I find this credible, but it doesn't settle the issue.

I once laid the cards on the table for a reporter. I told him that sometimes there are emails that violate FOIA laws, usually when too many board members hit "reply all" to an email sent to everyone in a heated moment. It isn't common, but it happens. I offered to disclose some of these incidents. He wasn't very interested, which means he didn't think his readers in the general public would be interested. I don't expect my readers to be any more interested. I also don't think any damage was done to the public in this instance.

But this was a group that campaigned under a banner of transparency, and as such they should go above and beyond when questions of transparency come up, as they inevitably will. I still haven't received all of the emails in question, and I guess that without spending $95, I might never see them. I continue to invite School Board members to release those emails, I invite any private citizen interested in them to finance the FOIA request, and although they did make their case from the dais on January 4th, I also invite Board members to make it again in writing on this blog.

There remains the more important and enduring issue, that of whether the six-pack will continue to treat the returning School Board members as "remainders." I have had the opportunity to talk at length with most of them, and as individuals I know that they don't treat people that way. But sometimes a group creates a dynamic that doesn't reflect any of the individuals. I think that has happened here, and I hope that the six-pack will work to undo the damage.