I’m asking a judge to enforce the Arkansas Freedom of Information Act. Here are two of the main issues.
In May 2019, I sued the Little Rock School District (LRSD) to protect my rights under the Arkansas Freedom of Information Act (FOIA.) Shortly thereafter, my lawyer and I amended my complaint. This week, we’ll amend it again. Hopefully we’ll get get it into an courtroom, this time, before any more problems arise!
As Max Brantley of the Arkansas Times rightly judges, I have become a “thorn in the side of the education establishment with Freedom of Information Act-powered inquiries” into all sorts of problems in public education in Arkansas, where I live. According to my records, I’m averaging two requests per week in LRSD alone. It’s a lot, and it probably cramps their style, but it’s necessary.
LRSD administrators are breaking laws, ignoring their professional responsibilities, covering up for each other, and trying to hide all of these things by inventing non-existent FOIA exemptions and being deliberately disingenuous with the documents they choose to release.
Part One: LRSD Uses “Paid Administrative Leave” to Hide from FOIA
In Arkansas, when you FOIA a public employee’s personnel records, their employer must redact private information and all information that is exempt from disclosure under FOIA. Internal investigations into employee misbehavior are exempt from disclosure under FOIA unless ALL of the following conditions have been met:
- The employee was suspended or terminated;
- There has been a final administrative resolution of the suspension or termination proceeding;
- The records in question formed a basis for the decision made in the determination to suspend or terminate the employee; and
- The public has a compelling interest in the disclosure of the records in question.
LRSD avoids disclosing records of employee misconduct by placing their problematic staffers on “paid administrative leave” until those staffers either resign or retire. Here are three examples I have encountered in the past few months:
Katina Ray was the principal of Baseline Elementary until 2015. Cathy Koehler, former president of the Arkansas Education Association (AEA,) told me she worked hard to get Katina Ray fired from her job. However, when I FOIA’ed Ms. Ray’s personnel file from LRSD, there was no termination letter.
Eric Walker, LRSD’s staff attorney, explained the omission by saying Ms. Ray was never actually terminated. He said there was a letter (presumably from then-superintendent Baker Kurrus) recommending termination, and assigning Ms. Ray to administrative leave with pay. Since “administrative leave with pay” isn’t — in LRSD’s opinion — technically a suspension or termination, Walker says, the letter can’t be released. I guess Katina Ray resigned after receiving that letter, but with LRSD doing these legal backbends to avoid FOIA, I can’t tell for sure.
Angel Cross, the Central High teacher who went viral on Facebook for restraining a child by twisting his arm up behind his back, also got “paid administrative leave” from LRSD.
The arm-twisting incident happened on May 1. Angel Cross took the next two days as “sick leave,” but returned to school the following Monday to continue teaching. On May 6, Cross gave official notice of her intent to retire at the end of the school year. She continued to teach.
On May 8, 2019, a photograph of Angel Cross twisting her student’s arm went viral on Facebook, alongside a story posted under the pseudonym “Baraka M. Chameleon.” Only then (after a week of allowing Cross to remain in the classroom, and allowing her to notify the district of her plan to retire) did LRSD place Angel Cross on “paid administrative leave,” where she remained until the date of her retirement: July 1, 2019.
LRSD’s staff attorney was on vacation when I asked why I couldn’t see Angel Cross’ investigation records, so LRSD hired Chris Heller of Friday, Eldredge & Clark (the same law firm that ended up on the wrong side of history by representing LRSD during the forced integration of Central High) to respond to me. Mr. Heller wrote, “…as I understand it, Ms. Cross was never suspended or recommended for suspension or termination. She was placed on administrative leave pending the investigation of an incident for which she ultimately received a written warning.”
Oh please. Angel Cross was on paid administrative leave until the end of the school year, allowed to retire, and then received a written warning? Smells fishy to me. I have FOIA’ed her attendance records to double check (since different teachers have told me different things about how long Cross was on leave) but haven’t received a response on those either.
It’s entirely possible that LRSD’s investigation into Angel Cross’ contact with this student exonerates her. Nevertheless, LRSD is hiding behind a semantic distinction between “administrative leave” and “suspension” in order to hide the documents. This behavior leads to unnecessary rumors and mistrust.
~~~~UPDATE 8/6/19: I did receive Angel Cross’ attendance records yesterday, confirming the length of Angel Cross’ administrative leave, and using the term “suspension w/pay” to describe its nature. That basically destroys whatever semantic argument LRSD’s outside attorney, Chris Heller, is trying to make against releasing the records of her investigation.~~~~
Finally, Rhonda Hall, the Mabelvale Middle School principal whose infamous punch to the face of a student was caught on a surveillance video last January, has also been assigned “paid administrative leave” by LRSD.
Arkansas Times reported it as a suspension, but Rhonda Hall hasn’t technically been suspended or terminated. Until (and unless) she is, the district will continue to claim that her “evaluation records” — the district’s investigation into her potentially criminal behavior — are exempt from release under FOIA.
Meanwhile, Rhonda Hall has been replaced at Mabelvale Middle School with an interim principal, Eric Henderson. Henderson has appointed Rhonda Hall’s friend, Jennifer Nelson, to be interim assistant principal.
I don’t know the precise nature of Jennifer Nelson’s relationship with disgraced boxer Jermain Taylor. I am much more interested in Nelson’s attempted destruction of Mabelvale student files in June, 2019.
Jennifer Nelson’s attempt (alongside Shikara Linsy, Rhonda Hall’s secretary) to shred sensitive documents immediately after I published my first Mabelvale blog post, last month, was caught on Mabelvale’s surveillance cameras. Surveillance videos also show Nelson and Linsy leaving the school with more documents in a box and a backpack.
These surveillance videos triggered another internal investigation (handled personally by LRSD Director of Safety & Security Ron Self, who swooped in to seize the documents recovered by the Mabelvale custodian) that I’m hoping to write about soon.
Of course, we will only know the whole story if Jennifer Nelson, Shikara Linsy, Ron Self, and Assistant Principal Tyke Troutman (the highest-ranking administrator at Mabelvale while Rhonda Hall was on leave, following the retirement of Assistant Principal David Smith) don’t get put on “paid administrative leave” to keep their personnel records hidden from the public.* Given LRSD’s established pattern of behavior, however, it seems likely a judge will have to intervene if we ever really want to know the truth.
The first time I requested an LRSD surveillance video was in March 2019, when I was following the story of a grievance against Hall High principal Mark Roberts. Ultimately, the grievance was resolved with a simple apology from Dr. Roberts, so I never wrote about the story.
However, the district’s response to my request was the beginning of a pattern of misdirection and disingenuity. Ron Self, LRSD’s Director of Safety & Security, responded, “The video is not subject to FOIA as this video has students on it and we do not have redacting capabilities.”
At this point, my lawyer responded on my behalf. He wrote, “As far as I know, Mr. Self is not a lawyer, so his determination about whether something is ‘subject to FOIA’ is more or less meaningless.”He also went into detail with regard to student privacy and the technological capabilities of different surveillance systems.
Persuaded, LRSD released the video a few days later with an explanation by Valerie Hudson: “Ms. Lyon-Ballay, per Mr. Ron Self, Director of Safety and Security, a video has been provided in response to your FOIA request… It was recently determined that while students may be visible on the video, it does not constitute an educational record under FERPA and the video can therefore be released.”
LRSD hasn’t attempted to use this excuse a second time. However, they are still trying to avoid releasing surveillance videos as required by FOIA.
On June 28, 2019, I requested copies of the Mabelvale surveillance videos showing staff destroying and removing documents, followed by Ron Self arriving to confiscate the documents that had been discarded.I didn’t describe the people or actions I expected to see. Instead, I just provided a range of dates and times that I knew would include the document destruction, removal, and confiscation. I ended by asking for a digital copy to be emailed to me.
Ron Self responded, on July 1, to notify me that the videos constituted 400 GB of data. He claimed, “This will require me to purchase an external hard drive. Based on estimates that I have seen online at Wal Mart this will run in the $45-$60 range depending on which one they have in stock….Unless you have other options we will have to put this on the hard drive.”
I did have other options to suggest. My husband, who is a computer programmer, did some research on the surveillance system (Ocularis) used by LRSD, and helped me formulate my response. First, I asked Ron Self to break down the footage into smaller segments.
Mr. Self immediately told me that would be impossible, since they had already “pulled” the footage.
I knew that the video files he had “pulled” would be unreadable on my computer, since Ocularis requires a Windows operating system to access its proprietary software (and I don’t have one.) Therefore, I next notified Mr. Self that I required the video files in a non-proprietary format, like AVI. AVI is the format that LRSD had used to send me a copy of the Hall High video — once my lawyer strong-armed them into complying with my request — so I knew they could make the conversion without untoward effort or expense.
I sent a copy of the Ocularis user manual to Mr. Self with instructions on how to convert the original footage to a standard video format. The Arkansas Freedom of Information Act provides that “A citizen may request a copy of a public record in any medium in which the record is readily available or in any format to which it is readily convertible with the custodian’s existing software,” so LRSD was legally required to convert the files upon request.
Still, they did not comply.
Instead, there was a two-week silence. I reminded them, twice.
Finally, LRSD responded to say that they couldn’t convert the video files because Ron Self had destroyed their original files when he “pulled” them to load onto the hard drive he was trying to sell me.
Again, my attorney stepped in. “Are you saying that Ms. Lyon-Ballay will have the only copy of those files once she takes the hard drive from you?”
LRSD quickly retracted Ron Self’s original claim that the “original footage no longer exists.” However, they still refused to release the video in AVI format, broken up into “batches” (small segments) as required and allowed under the Arkansas Freedom of Information Act.
Remember, these videos likely show Mabelvale staffers pulling specific documents out of files and loading them into a box, a backpack, and the locked container of discarded documents destined for off-site shredding. They also show Ron Self collecting sensitive documents from the locked container at Mabelvale Middle School for an “investigation” into illicit records destruction and removal.
If LRSD actually releases these videos to me, as required by the Arkansas FOIA, Superintendent Mike Poore will lose his “plausible deniability” regarding this destruction of documents and cover-up that goes at least as high as his Director of Safety & Security.
In an effort to end the standoff, I have asked one of my friends in Little Rock to go to the LRSD central office tomorrow afternoon. She has agreed to sit in front of their computer monitor with her own camera pointed at the screen, and record the specific segments (I’ve made her a list of timestamps) that I am hoping to publish first.
This friend recently resigned from teaching in LRSD with all the symptoms of Post-Traumatic Stress Disorder from the harm she suffered at Mann Magnet Middle School. She says she is happy to be an “assistant to a superhero” and help me expose the corruption behind the scenes.
Although I am grateful for her help, it shouldn’t take heroics to get LRSD to release its surveillance videos appropriately. Nevertheless, it’s clear that if I don’t pursue the release and review of these public records, nobody will.
Education Commissioner Johnny Key, who has been the acting school board for LRSD since he was appointed by Governor Asa Hutchinson in 2015, has failed to provide any meaningful oversight or accountability for the district’s administrators. Without effective leadership or standards enforcement at the state level, it falls to activists and bloggers like me to insist on transparency.
Anybody want to contribute to my legal fees or blogging expenses? I will happily accept your subscriptions to my Patreon account. Right now, I’m getting $23 per month. Johnny Key earns $19,652 per month (or 854 times my Patreon income.) Seems like I’m more effective, for much less money, right? At the very least, your support will help me pay my lawyer!
Thanks, and… you’re welcome!
*I submitted FOIA requests for the personnel files of Jennifer Nelson and Tyke Troutman on July 17, 2019. Three weeks have passed — significantly longer than the three-day “extension” allowable under the Arkansas Freedom of Information Act. No timely response from LRSD means I’ll have to ask the judge to weigh in on this, too. Watch this space.