Many school districts have received an e-mail from Daniel Fox
(firstname.lastname@example.org) asking them to send “copies of public records
of individual salary data for all public school employees (with a focus on
teachers and administrators) for as many years as are available between
1995-2016.” Mr. Fox says that he is seeking this information on behalf of
Dr. Joseph Price at Brigham Young University, who he says is doing a study
on the gender gap in teacher pay.
We have reviewed Mr. Fox’s e-mail and have consulted with the
Nebraska Attorney General’s Office about it. We are advising KSB clients
that this is a valid public records request which requires a response. Every
school that received this request will have to do four things promptly:
1) Ascertain which records (in any format) are subject to disclosure in
response to this request;
2) Calculate how much it will cost to fulfill the request – this includes
all the costs that we’ve detailed below;
3) Determine how long it will take you to fulfill the request; and
4) Respond back to Mr. Fox by this Thursday, June 9 (if you got this
request on Friday and your school will be open for business every
day this week). You will either need to provide the documents or
communicate the costs and timeline for your eventual response.
The rest of this update explains these steps.
Requested Documents and Analysis. Schools almost certainly
have records containing the items listed in Mr. Fox’s request, which was the
“year, name, job title, salary information, education, experience, and
gender” of each of its staff members for the last 21 years. At a minimum,
Mr. Fox would like any documents containing the “year, name, salary, and
job title” of teachers and administrators. As we read this request in light of
the Public Records Act, we recommend that you analyze your individual
teacher and administrator contracts, along with spreadsheets, payroll
records, or other documents which contain this information in order to
determine what you must disclose. Gaining an understanding of the
documents which may be responsive to this request, even if you do not
locate all of them immediately, will allow you to estimate the costs discussed
Form of the Documents. Schools are not required to produce or
prepare any records “in a new or different form or format modified from that
of the original public record.” If your district maintains this information
electronically (say, in your payroll software or on a spreadsheet) it should be
fairly straightforward to generate a report that includes this information and
nothing else. However, if the district only has paper records for some of
these years, the district will need to review the records to ascertain which
must be disclosed, redacted, or withheld.
Response Within Four Business Days. Schools must respond to
this request within four business days. That does not mean you have to
gather these documents by then. The Public Records Act states that if the
entire request cannot with reasonable good faith efforts be fulfilled within
four business days “due to the significant difficulty or the extensiveness of
the request,” you can instead communicate back to the requester. That
communication should include a written explanation of why, including the
earliest practicable date for fulfilling the request, an estimate of the
expected cost of any copies, and an opportunity for the requester to modify
or prioritize the items within the request.
Fees for Gathering and Copying These Documents. If it will take
your staff more than four hours to search, identify, redact or copy these
documents, you can charge for that staff time. NEB. REV. STAT. § 84-712(3)(c).
Alternatively, if you decide to pay a third party (an independent contractor
or even your educational service unit) to search your computer or paper files
and gather these documents, you can charge for all of that additional
expense. You may also charge a fee for your actual costs (e.g. copying,
printing, computer analysis) in responding. You are, however, prohibited
from charging the requester for the cost of your attorney reviewing the
public records response.
Deposit. You may request a deposit prior to producing the records if
you reasonably calculate that the total fee (including copying, staff, and
contractor costs) for providing the records would exceed $50.00. Mr. Fox
will then have 10 days either to narrow the scope of his request or to
provide you with the requested deposit.
If you would like assistance in preparing a response to Mr. Fox or if
you have questions about the public records statutes in general, you should
consult with your school district’s attorney or call Karen, Steve, or Bobby.