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Photo illustration by Erin Nelson.
Parents have filed open records requests for information about the Vestavia Hills City Schools system’s process for masking decisions during the COVID-19 pandemic in the fall of 2021.
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Photo by Erin Nelson.
Members of the Vestavia Hills Board of Education and Superintendent Todd Freeman, center, meet at the Vestavia Hills Board of Education on Nov. 30.
A lawsuit filed in mid-February is the latest in an effort by multiple parents to obtain what they believe are public records from the Vestavia Hills City Schools system.
At least three parents have filed open records requests related to the school system’s decision-making process for masking decisions during the COVID-19 pandemic in the fall of 2021. With the exception of a few weeks in September, masks have been optional in Vestavia Hills City Schools during the 2021-22 school year.
Brian Malcom and Watts Ueltschey Jr. filed a lawsuit in Jefferson County Circuit Court on Feb. 17 against the school system, 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 [Vestavia Hills Board of Education], 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.
Vestavia Hills City Schools Director of Public Relations Whit McGhee responded to a request for comment on both the lawsuit and this story with a statement.
“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,” McGhee said. “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 offered a similar statement in response to the lawsuit.
“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.”
The city and the board’s response was expected to be filed March 21, four days after the Vestavia Voice’s print deadline. Visit vestaviavoice.com for the story on their response.
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.
Cinnamon McCulley
The requests
Malcom and Ueltschey both filed requests for records from the Vestavia Hills Board of Education on Aug. 13, and Malcom amended his request the next day to include another category of requested documents. Malcom also sent a request to Vestavia Hills City Clerk Rebecca Leavings on Sept. 14.
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.
Malcom told the Vestavia Voice there were concerns about who was making these decisions and how, given the high number of cases in the community from the Delta variant around the time school started.
When push comes to shove and transparency was asked on a hard issue, they resisted and refused to provide transparency.
Brian Malcom
Ueltschey told the Vestavia Voice he was concerned the school system was not following Alabama Department of Public Health guidelines and was doing their own “research.”
Following a month with no response other than an acknowledgment that Freeman and school board attorney Mark Boardman had received his request, Ueltschey had what he said was a 35-minute phone conversation with Boardman on Sept. 17.
In that conversation, Ueltschey said Boardman was “offended” when Ueltschey asked if he knew of a time when records requests made to the board had been delivered. According to notes taken during the phone call by Ueltschey, Boardman accused Ueltschey of wanting to “shame” the Board of Education instead of helping deal with problems caused by the pandemic.
Another parent, Pascal Caputo, sent his first request on Sept. 18, asking to “inspect or obtain copies of public records, including but not limited to email communications, internal memorandums, draft press releases or announcements or any other written or electronic document, drafted or otherwise created between Aug. 30, 2021, and Sept. 17, 2021, that directly or indirectly discuss the policy of the VHCS as it relates to the use of masks or face coverings at school facilities. Without limiting the general scope of the foregoing, I specifically request the opportunity to inspect email communications sent during the above dates by (1) the VHCS superintendent, (2) members of the VHCS board of education and (3) Vestavia City Councilor Kimberly Cook that includes the term ‘mask.’ The request for email communications from the foregoing persons includes emails sent from either their official City or VHCS email address or their personal or non-VHCS/City work email address.”
Caputo has since supplemented his request multiple times but has not received the documents he requested. In a letter to Caputo, which Caputo provided to the Vestavia Voice, Boardman challenged the notion that emails are subject to disclosure.
“Further, please provide legal citations which say all email communications are public writings,” Boardman wrote. “I do not find either in the Open Records Act or cases interpreting the Act.”
Legal questions
In an email to Boardman on Nov. 18, Caputo, a lawyer himself, brought up Chambers v. Birmingham News, a 1989 Alabama Supreme Court case in which he said the court found that “there is ‘a presumption in favor of a record being public, except in narrowly construed cases’ where it is readily apparent that disclosure will result in undue harm or embarrassment to an individual, or where the public interest will be unduly affected. The court also held that ‘the party refusing to make a disclosure bears the burden of proving the records should be withheld from public scrutiny.’”
Caputo, as well as Alabama Press Association Counsel Dennis Bailey, also cited Tennessee Valley Printing Company v. Health Care Authority of Lauderdale County, a 2010 Alabama Supreme Court case in which the court found that “emails between public employees regarding the sale of public assets were subject to disclosure under the Public Records Law.”
Bailey spoke with the Vestavia Voice to share his opinion on the records requests.
In 2020, Alabama Attorney General Steve Marshall filed an opinion, which does not carry the weight of law, stating drafts of a government’s deliberative process are not subject to disclosure. However, in Health Care Authority for Baptist Health v. Central Alabama Radiation Oncology, LLC, a 2019 Alabama Supreme Court Case, the court held that drafts showing the deliberative process were subject to the Open Records Act and rejected attorney general opinions to the contrary.
Bailey said that interpreting the Open Records Act in that way, as Marshall did, makes the act “devoid of purpose.”
Trust and transparency
The only documents the three Vestavia parents say they have received have been public memos sent out by Freeman to every parent in the school system, as well as publicly available information on COVID-19 numbers in the school system as posted on the school system’s website, and do not include the internal documents and communications they requested.
Caputo said that even if the law dictates the school system could keep secret the emails discussing COVID-19 decisions, that does not mean they should.
Ueltschey said the more the school system pushed back against his requests, the more engaged he became. He has spoken at several school board meetings in the past, and while he did not set out to be an activist, he wanted to protect his family and push the board to be more transparent and engaged with medical advice with their decisions, he said.
While COVID-19 cases continue to decline in both the school system and the state, the issue now isn’t masks as much as it is transparency and honesty, both Caputo and Malcom said.
“Something is rotten in the city of Vestavia,” Caputo said. “Something doesn’t smell right.”
“When push comes to shove and transparency was asked on a hard issue, they resisted and refused to provide transparency,” Malcom said.
The Vestavia Voice will continue to follow this issue online.
