An advisory opinion from the state Committee on Open Government says that Schenectady City School District officials should not have withheld release of the entire report into former facilities director Steven Raucci’s alleged workplace misconduct.
The Daily Gazette in June had filed a Freedom of Information Law request seeking access to the report of Rachel Rissetto, who the Board of Education hired at a fee of $100 per hour to investigate whether Raucci harassed and abused colleagues and whether administrators knew of his behavior and did nothing.
This is separate from the criminal case against Raucci, who is facing a 26-count indictment alleging that he planted explosive devices at the homes of his enemies and did other damage.
The Schenectady County district attorney has alleged that school officials were “beholden” to Raucci, who retired from his position in April. The investigation took 21⁄2 months and cost nearly $13,000.
School officials denied the FOIL request in a letter dated June 30 and also denied an appeal on July 17. They claimed that there would be an “unwarranted invasion of personal privacy” if the report were disclosed and that it is an intra-agency report and not a final agency policy or determination.
The district does not have the authority to withhold the entire contents of the report, according to an opinion dated Sept. 1 by Committee on Open Government Executive Director Robert Freeman.
Freeman wrote that the Freedom of Information Law “imposes an obligation on an agency to review the records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.”
Copies of the opinion were sent to the Board of Education and Superintendent Eric Ely.
Contacted for comment on Tuesday, Ely said, “It is not appropriate for me to comment on a board decision or to comment if that decision is being questioned.”
School board President Maxine Brisport also declined to comment “on advice of our legal counsel.”
But Vice President Diane Herrmann believes the report should be released. She said Tuesday that the board should discuss the matter again with its legal counsel. She has pressed the issue but has not heard back from other members.
Gazette Managing Editor Judith S. Patrick said the newspaper is waiting for the school district to review the advisory opinion and make a decision on whether it would change its position on releasing the report.
“We very strongly believe that the school district has a responsibility to make this report available to the public,” she said.
The law permits an agency to withhold records that are not statistical or factual tabulations of data, instructions to staff that affect the public, final agency policy or determinations or external audits.
Freeman believes the report contains factual information that must be disclosed. For example, statements by witnesses about when Raucci arrived at the office and how many assignments were completed at the end of the month are factual information and not intimate or highly personal and can be made public.
In addition, Freeman said case law has found that as a general rule, records relevant to the duties of public persons should be made public.
However, recommendations or clear statements of opinion, such as “I think he’s a bad guy,” can be withheld, according to Freeman.
“In that event, it is reiterated that based on the direction given by the state’s highest court, district staff are required to review the report, line by line, to determine which portions consist of statistical or factual information,” Freeman wrote.
In addition, Freeman said that a description of how Rissetto carried out her duties and her methodology must be disclosed.
The board was going to release some portion of the report, and then it promised a summary. However, the district’s legal counsel advised against releasing any of the report. Then Board President Jeff Janiszewski cited pending or possible litigation against the district by people allegedly harmed by Raucci.
Freeman wrote, “In my view, the more that is disclosed to the public, by whatever means, less is the ability of the district to contend that disclosure would result in an unwarranted invasion of personal privacy. Further, if and when claims against the district are initiated and litigation papers are filed with a court or the district, those records are accessible to the public.”
He also rebutted a contention that Rissetto’s report was merely a draft document that need not reflect a final decision. He said the Court of Appeals has rejected the finding that draft documents can be withheld.