Following a request for legal opinion from Tennessee Open Records Counsel Elisha Hodge by the Cleveland Daily Banner last week after the newspaper was denied access to the documents, Knoxville-based school board attorney Chris McCarty sent the Banner copies of the requested documents late Thursday.
While the county school board’s attorney disclosed he does not agree with Hodge’s opinion, he nonetheless forwarded the documents to the Cleveland newspaper via email.
“It was our understanding that said sheets were simply ‘working papers’ as defined by Tenn. Code Ann, 10-7-301 (14),” McCarty wrote in a cover letter to the Banner. “As such, we did not and do not believe they can be requested pursuant to an open records request. We understand that Elisha Hodge takes a different position, but we respectfully disagree with Ms. Hodge. With all that said, however, we see no reason to keep debating this issue.”
Hodge’s interpretation of state law came last weekend and was published in Monday’s edition of the Banner.
“It is the opinion of this office that the evaluations that the individual school board members submitted are public records,” Hodge wrote in her response. “Additionally, it is the opinion of this office that if the records exist, they should be made accessible for inspection in response to the public records requests that have been made.”
A Banner reporter had requested to view the forms by individual school board members that would determine how McDaniel would be evaluated. The newspaper’s request came prior to the Thursday, June 12, board meeting in which the governing body voted to accept the results of the annual evaluation that state law requires school boards to conduct.
On Monday, June 9, the reporter had called Sammie Humphrey, assistant to the director, to request the forms. Humphrey said she would have to talk to the school board’s attorney to see if she could release those documents.
Humphrey sent the reporter an email the next day stating she had spoken with the attorney and asked that a written request be delivered to her in person.
“If you will drop this by the Central Office, we will comply according to T.C.A. 10-7-503,” Humphrey wrote.
She was citing the part of state law that outlines provisions allowed by the Tennessee Open Records Act.
Section (a)(1) of the portion of Tennessee Code Annotated 10-7-503 defines what can be released: “As used in this part and title 8, chapter 4, part 6, ‘public record or records’ or ‘state record or records’ means all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency.”
In section B of the same statute, it outlines how open records requests should be handled: “The custodian of a public record or the custodian's designee shall promptly make available for inspection any public record not specifically exempt from disclosure. In the event it is not practicable for the record to be promptly available for inspection, the custodian shall, within seven (7) business days: (i) Make the information available to the requestor; (ii) Deny the request in writing or by completing a records request response form developed by the office of open records counsel. The response shall include the basis for the denial; or (iii) Furnish the requestor a completed records request response form developed by the office of open records counsel stating the time reasonably necessary to produce the record or information.”
Section (2)(A) of T.C.A. 10-7-503 states, “All state, county and municipal records shall, at all times during business hours, which for public hospitals shall be during the business hours of their administrative offices, be open for personal inspection by any citizen of this state, and those in charge of the records shall not refuse such right of inspection to any citizen, unless otherwise provided by state law.”
On Wednesday, June 11, the reporter hand-delivered the written request to receive either print or electronic copies of the forms or have the opportunity to view them in the office without copies being made.
Humphrey then told the reporter she could not view the requested documents onsite and would have to wait for response, again citing the need to speak to the attorney.
Details on the steps the reporter followed to request the documents were detailed in the June 12 edition of the Banner.
Later that afternoon, Humphrey sent the reporter an email that said “because they are ‘working papers’ as defined by Tenn. Code Ann. § 10-7-301(14), individual board member notations used to complete the final evaluation do not fall under the Public Records Act.” Attached to the email were a copy of a final “tally sheet” that averaged the director’s evaluation scores and a copy of a 1982 opinion from Tennessee Attorney General William M. Leech Jr. that sought to define what “working papers” meant.
At the June 12 school board meeting, Board Chair Vicki Beaty made reference to the reporter’s request for information and why it was denied.
“It’s my understanding that Ms. Humphrey had emailed the final evaluation for the director of schools and the tally sheet which was included in the board packet and stated that because they are working papers as defined by Tennessee Code Annotated 10-7-301 14, individual board member notations used to complete the final evaluation do not fall under the Public Records Act.”
Hodge later disagreed with that assessment.
“It is the opinion of this office that the evaluations that the individual school board members submitted are public records,” Hodge wrote. “Additionally, it is the opinion of this office that if the records exist, they should be made accessible for inspection in response to the public records requests that have been made. In Tennessee, in order for the public to be denied access to a record that exists, the record has to be confidential pursuant to a provision within the law. The records custodian has an obligation to provide the requestor with the specific provision within the law that makes the requested record confidential.”
The attachments to the email McCarty sent to the Banner on Thursday included a cover letter and scanned copies of the fronts of the evaluation forms.
“As you will see, the individual evaluations contain the same information found on the initial evaluation report,” McCarty said.
While the forms did include the same information as the summarized report, it also included additional information.
Though it was said in previous meetings that the evaluations would be anonymous, the majority of the school board members chose to sign their names. The final summary provided to board members and to the Banner did not connect board members names’ with their respective scores of McDaniel’s performance.
One form had the initials “CC” written at the bottom, indicating it likely belonged to Christy Critchfield, the only board member with those initials. Four other board members — Rodney Dillard, Charlie Rose, Troy Weathers and Chris Turner — included their full first and last names. Two forms were unsigned.
However, earlier in the day before McCarty’s office sent its email, the Banner received an email from the board’s vice chairman, Nicholas Lillios. He pre-empted the action of the school board’s attorney by sharing his opinion and a copy of his personal evaluation form.
“It is my opinion that all school records are of public record except those of student personal data,” Lillios wrote in his email. “The central office has not been acting under the board's directives in this matter.”
Lillios added, “I and certain other board members have been making efforts to make the school system's actions and business as transparent as possible. ... I would encourage information to flow both directions in order for the public to gain a better understanding of what is happening within their schools and for the board to hear the public's concerns.”
Of the two unsigned forms included with the documents McCarty sent, Lillios’ was one.
Comparing the copy Lillios sent to the Banner with those that were unsigned, it can be determined exactly which one of the unsigned evaluation forms was his. Lillios’ form was the only one filled out electronically instead of by hand, and the scores on an unsigned typewritten evaluation form exactly matched those on the form Lillios sent.
By process of elimination, the second unsigned evaluation form belonged to Beaty.
Three school board members — Critchfield, Dillard and Weathers — gave McDaniel all 5s in every category, indicating they believed McDaniel had performed “significantly above expectations” in all areas. The other board members gave McDaniel scores that ranged widely between 1 and 5.
The numerous individual evaluation criteria included statements like “has a harmonious relationship with the board,” “models the highest professional standards to the community,” “develops cooperative relationships with the news media,” “treats all personnel fairly,” “provides accurate and timely reports to the board on the financial condition of the school system,” “facilitates a community informed of progress toward long-range plans” and “promotes academic rigor and excellence for students so that they are college and career ready.”
The evaluation form, which was designed by the Tennessee School Boards Association, measured McDaniel on such individual pieces of criteria and the larger categories in which the statements were contained. For example, a section that was said to evaluate McDaniel’s vision concerned criteria related to planning and goal-setting.
Board members were to give McDaniel scores on those items ranging from 1, meaning “significantly below expectations,” to 5 for being “significantly above expectations.”
According to Banner calculations based on averaging the individual scores for each subcategory, the board members’ individual ratings for McDaniel on each evaluation category were:
- Board relationship: Beaty, 1.8; Critchfield, 5; Dillard, 5; Lillios, 1.8; Rose, 2.8; Turner, 2; and Weathers, 5.
- Community relationships: Beaty, 2.8; Critchfield, 5; Dillard, 5; Lillios, 2.2; Rose, 3.6; Turner, 2.8; and Weathers, 5.
- Staff and personnel relationships: Beaty, 2.2; Critchfield, 5; Dillard, 5; Lillios, 1.8; Rose, 3.2; Turner, 2.4; and Weathers, 5.
- Facilities and finance: Beaty, 2.6; Critchfield, 5; Dillard, 5; Lillios, 1; Rose, 3.8; Turner, 1.8; and Weathers, 5.
- Vision: Beaty, 2.6; Critchfield, 5; Dillard, 5; Lillios, 1.2; Rose, 3; Turner, 2.4; and Weathers, 5.
- Student achievement: Beaty, 2.8; Critchfield, 5; Dillard, 5; Lillios, 2.8; Rose, 4; Turner, 2.8; and Weathers, 5.
The evaluation score the board approved at its June 12 meeting after all the scores were averaged was 3.58, which included scores of 3.34 for the “board relationship” section, 3.77 for “community relationships,” 3.51 for “staff and personnel relationships,” 3.46 for “facilities and finance,” 3.46 for “vision,” and 3.91 for “student achievement.”
Responding late this morning to a Banner request for comment, Beaty said the decision for McCarty to send the evaluation forms to the newspaper reporter was a decision she was not involved in making. McDaniel allegedly approached McCarty to say he believed the forms should be released, she said.
“I was not contacted by Mr. McDaniel or Mr. McCarty,” Beaty said, citing the need for better communication.
The next step in the director’s annual evaluation will be to “work with McDaniel on deficiencies” in a future work session, she said.
Calling it a “collaborative effort” between the director and the school board, Beaty said the board will be looking at setting “measurable goals” for him to meet and getting started on a new practice that was approved by the board when the budget for the 2014-15 year was passed. The new practice requires the director to present monthly financial reports to the board.
The school board is expected to meet in late July.