School districts seek union advice on Institute FOIA requests

Paul Kersey

Labor law expert, occasional smart-aleck, defender of the free society.

Paul Kersey
/ Labor
September 25, 2014

School districts seek union advice on Institute FOIA requests

Over the course of the summer, the Illinois Policy Institute has been attempting to assess how many teachers have made use of their Hudson rights – their legal right to prevent their dues from being used   for union politics – and how well Hudson rights are understood in Illinois public schools. Do teachers even know...

Over the course of the summer, the Illinois Policy Institute has been attempting to assess how many teachers have made use of their Hudson rights – their legal right to prevent their dues from being used   for union politics – and how well Hudson rights are understood in Illinois public schools. Do teachers even know what their rights are? And if teachers want to assert their rights, do school districts know what to do?

In the process, we’ve learned that school districts were communicating with union officials, and union officials have been leaning on school districts to reveal as little as possible. Back in May, Illinois Education Association, or IEA, Legal Services Director Mitchell Roth sent an email to union staff, letting them know how to respond when school districts called to ask about a Freedom of Information Act request we sent around:

To all,

As I’m sure you already know, the Illinois Policy Institute has sent the attached FOIA request to a significant number of school districts. While inartfully drafted, it requests correspondence and other documents in the possession of districts related to the rights employees have to object to the payment of fair share fees and also the number of “dues paying members” (members of what organizations is not stated) in the district. Many districts are contacting their locals about the request and seeking input on how to respond. A few suggested actions/advice about the request:

  • A district is only required to provide public records “pertaining to the transaction of public business” in its possession or under its control
  • Most of the fair share related documents requested are likely sent out/posted by the local and/or IEA
  • Neither the local nor IEA has any obligation to provide these documents pursuant to this request
  • Districts should read the request carefully
    • some of the request does not ask for names, merely numbers
    • part of the request asks for information about teachers, another part about employees, yet another part about members
    • the request’s reference to “dues paying members” is unclear in that it does not refer to what organization such members are to belong and refers to members who pay “reduced” dues  – a fair share fee payer is not a member
  • While we are researching whether the documents requested fall within the FOIA definition of “public records,” they most likely do, as that definition has been broadly interpreted
  • Districts should consult with their own legal counsel regarding exceptions that might be applied to allow them not to disclose any information they have
  • Districts should take care not to include any “private information” as defined in Section 2(c-5) of FOIA:  http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=85&ChapterID=2

Please get this information out to your locals. Also, please keep us informed of district responses/school legal counsel advice.

If you have questions, please contact the IEA attorney assigned to your area. If we have additional advice/information, we will email it as soon as possible.

Thanks.

Mitch


It’s worth noting that “inartfully” isn’t a word. That aside, the real problem is that unions have no right to be consulted with here, and no business interfering when citizens seek information about labor relations and worker rights. School districts should not be turning to unions for advice on how to deal with a FOIA request like this. Setting aside concerns about union power, the FOIA request in question was asking for information that touches on relations between school employees and the union. The union has its own interests, which are bound to conflict with those of the public. They cannot be relied on to be neutral on what should be released and what should be held back. Union officials are the last people that district officials should be consulting with on this topic.

The IEA might slow things down a bit, but this isn’t going to stop us. Government workers – and that definitely includes public school teachers – have a First Amendment right not to support union politics. We intend to do all that we can to inform teachers of their rights, and help those who don’t agree with the union to find their own voices.

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