Residents gather at the Vestavia Hills Board of Education meeting at Pizitz Middle School.
Brian Malcom and Watts Ueltschey Jr. filed a lawsuit in Jefferson County Circuit Court on Feb. 17 against Vestavia Hills City Schools, the city of Vestavia Hills and Vestavia Hills City Schools Superintendent Todd Freeman, arguing the entities have failed to comply with the Alabama Open Records Act.
“Since August 2021, and despite significant efforts to avoid litigation while still seeking transparency from the VHBOE, the VHBOE has demonstrated a pattern and practice of ignoring its obligations under Alabama’s Open Records Act and has instead engaged in dilatory tactics intended to frustrate the citizens of Vestavia Hills, Alabama and prevent transparency as to its decision-making process on matters of significant public importance -- considerations regarding the health and safety of children in Vestavia Hills City Schools and the health of the community as a whole,” Malcom wrote in the complaint.
Malcom, an attorney, and Ueltschey, who works in the technology sector, both have children in the school system and both filed open records requests last fall relating to the school’s decisions regarding the handling of the COVID-19 pandemic. Malcom filed his request Aug. 13 and amended it the next day to include another category of requested documents, while Ueltschey sent his request Aug. 13. Malcom sent a request to Vestavia Hills City Clerk Rebecca Leavings Sept. 14.
Malcom and Ueltschey, along with other parents, filed requests to examine communications and documents that informed the Board of Education and Freeman’s decision making when it came to whether to require masks and other protocols to begin the 2021-22 school year. While COVID-19 numbers have continued to decrease in Vestavia Hills City Schools, when the school year started, the Delta variant was pushing those numbers up and not every school-age child was eligible for a vaccine. Malcom and Ueltschey were two of many parents who spoke at board meetings requesting masks be mandated and questioned how the board was making their decisions.
According to the complaint, documents requested from the Board of Education and Freeman included:
- Communication between Freeman, board members and City Council members regarding COVID-19
- “Data, report, opinion, analysis or information” that board members and Freeman used to make their decisions
- Records of communication with the Alabama Department of Public Health, the Jefferson County Department of Health, the Centers for Disease Control and Prevention and “any other federal, state or local health agency that relates to COVID-19, the prevention of the spread of COVID-19, the health effects of face masks or the efficacy of face masks in preventing the spread of COVID-19”
- “Any record of any data, report, opinion, analysis or information” sent to the board or Freeman that referenced the virus, the “possible negative psychological or health effects of individuals under the age of 19 wearing a facemask to prevent the spread of any virus, including COVID-19”
- “Any consideration or communication relating to or referencing any possible political effect, political consequence or electoral consideration” related to the board making masks mandatory or making masks optional in Vestavia Hills City Schools
- Communication “within and between the Board and its advisors on how to craft and communicate the 2021-22 Operations Plan”
- A “list of people or groups that have had a substantive influence on the Board’s assessment of risk for COVID-19 and any plans or decisions not to mitigate that risk”
The request Malcom made to the city included all records of communication in whatever form between the mayor, council members, city manager and members of the Board of Education and Freeman, as well as a written copy of the legal opinion that the City Council received from City Attorney Patrick Boone “relating to or referencing the city’s ability or inability to pass and enforce a mask ordinance on school property in the city limits.”
Boone said in an August 2021 work session that any mask mandate the council passed would not impact school facilities.
“This action is about transparency in government and the right of citizens in Alabama to inspect and review public documents,” the lawsuit says.
The requests from multiple parents were met only with documents that Freeman previously posted publicly in emails to parents and on the school system’s website, which the lawsuit says did not satisfy his request.
“Though the requests from multiple concerned citizens, residents and parents sought the inspection of or copies of different, unique or various documents under the Open Records Act, the VHBOE and its counsel decided to only produce identical packets of documents to each requestor,” Malcom wrote.
The city has also not provided any documents, Malcom wrote.
Attorney Mark Boardman has represented the Vestavia Hills Board of Education and school system in all matters related to these public records requests. Malcom and Ueltschey both told the Vestavia Voice that Boardman only sent the public updates provided by Freeman, not the documents they requested, and failed to respond further after initial conversation.
In the complaint, Malcom states the school system has had five months to respond for “most of the requests” but has failed to “produce documents responsive to the Plaintiff’s requests under the Open Records Act” or to allow Malcom and Ueltschey to see the documents they requested.
Malcom and Ueltschey are seeking declaratory judgment that the city, school system and Freeman have “repeatedly violated the Open Records Act,” along with the public records previously requested.
The responses from the school system and the city were not filed in court prior to this story. However, both responded with similar but individual public statements.
“The Vestavia Hills Board of Education is in receipt of a formal complaint filed against the Board and City regarding our compliance with the Alabama Open Records Act,” said Vestavia Hills City Schools Director of Public Relations Whit McGhee. “We are confident that we have been and continue to be in full compliance with the law, and we look forward to the Court affirming our position."
“The City of Vestavia Hills is in receipt of a complaint filed by several plaintiffs alleging a lack of compliance to the Alabama Open Records Law, which provides that ‘[e]very citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute,’” said the city of Vestavia Hills’ Communications Director Cinnamon McCulley. “We work diligently to be transparent in responding to all records requests, and the request in question was no different. We are confident that we have been and will continue to be in full compliance with the law and look forward to the Court affirming our position.”
Look for a more detailed version of this story in the April print edition of Vestavia Voice.
