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Hearing shows gaps in ed department’s handling of records requests

By Maya Shimizu Harris
Casper Star-Tribune
Via- Wyoming News Exchange

CASPER — Thursday’s evidentiary hearing in a lawsuit concerning public records about an event hosted by former State Superintendent of Public Instruction Brian Schroeder revealed significant gaps in the Wyoming Department of Education’s handling of public records requests. 

Defendant Linda Finnerty, who is responsible for handling public records requests and serves as the department’s chief communications officer, said she had never received training on how to handle these requests, and that a standard protocol for processing requests isn’t written down anywhere in formal policy. 

Finnerty also said she wasn’t aware when the plaintiff’s initially requested records about the event that writing on personal devices and accounts concerning agency business can be considered public records. 

She also wasn’t aware that instant messages wouldn’t be included when she asked agency employees to hand over emails concerning the event. 

What’s more, the search terms used to look for the records weren’t initially adequate to cover everything the plaintiff’s had requested, and there were gaps in who in the agency was initially asked to produce records related to the request. Finnerty said multiple times that she had made mistakes throughout the process of handling the public records requests that the case concerns. 

Rodger McDaniel, a plaintiff and attorney, asked Finnerty whether it would be “fair to conclude” from her testimony “that a citizen cannot rely on your representations in response to an open records request.” Finnerty denied that characterization.

“Several times you’ve said you made mistakes or there were oversights or you came to learn certain things,” McDaniel followed up. “You didn’t know about instant messages or what to do about Mr. Schroeder’s refusal to turn over certain public records. And then you said, ‘At this point we’ve been very thorough.’ At what point did you become thorough?”

 “When I began receiving responses back from yourself that things were missing, I continued to dig deeper and dig deeper throughout the process,” Finnerty responded. 

The complaint, which was filed in February, centers around Schroeder’s “Stop the Sexualization of our Children” event that he hosted in October at Little America in Cheyenne shortly before the end of his administration (Schroeder was ousted in the Republican primaries last year by current State Superintendent Megan Degenfelder). 

Plaintiffs on the suit are McDaniel and George Powers, a Cheyenne attorney. McDaniel and Powers are representing themselves in the case. 

Schroeder’s Oct. 25 event, which was attended by roughly 150 people, focused on the “issue of parental authority and standing up against the inappropriate sexualization” of kids in Wyoming, a topic which had been a focus of Schroeder’s campaign. 

Parents, lawmakers and representatives of No Left Turn in Education — a parental rights organization that has cracked down on school libraries across the country — spoke at the event. 

McDaniel and Powers sought information from the WDE about who had paid for the event, first contacting the agency in October prior to Schroeder’s event. They filed their lawsuit after a drawn out back-and-forth with Finnerty and Schroeder during which McDaniel and Powers pushed the two to produce records about the event. 

The plaintiffs have argued that the agency’s response to their records requests was inadequate, that state officials couldn’t show they had made a “good-faith effort” to find and share the records they had asked for and that defendants have “made repeated misrepresentations of material facts.” 

Schroeder initially intended to organize the event through the department of education in his official capacity as state superintendent of public instruction. 

But on Oct. 19, the Wyoming Department of Education issued a statement saying that Schroeder had “decided to separate the press conference from the Wyoming Department of Education,” and that “no state funds” would be used to pay for the event. 

Finnerty explained in the courtroom Thursday that, by participating in the event, the agency would be “taking a position on something that we don’t have a purview in.” 

Schroeder told reporters at the press conference that he had paid for the event with his own funds, as well as with donations from unnamed persons. He said the event had cost roughly $3,000, and that he had received help from Wyoming Moms for Liberty groups to organize the press conference. 

However, public records produced by the department through Powers’ and McDaniel’s requests show that a little more than $2,416 in state funds were in fact used to pay for airfare and lodging for No Left in Education representatives. 

Part of that cost was later reimbursed with two donations amounting to $2,000. 

Schroeder, who had traveled from Arizona to attend the hearing in person, said on Thursday that the rest of the expenses had also been paid off with private money. 

Finnerty, who is responsible for approving these spending logs, said she didn’t notice the name of Elana Fishbein, founder of No Left Turn in Education and a speaker at Schroeder’s event, when she approved these particular expenses. 

“I’m not necessarily looking at who the ticket might have been bought for,” Finnerty said. “I’m looking at the budget, and that all the transactions are accounted for.” 

Trent Carroll, chief operations officer at WDE, later said in his testimony that it’s “best practice” to review all the supporting material in the spending logs. Though the records were in the possession of the WDE, Finnerty told McDaniel in their correspondences that there were no records about spending because the event wasn’t funded by the agency. 

Finnerty acknowledged during the Thursday evidentiary hearing that, “in hindsight,” this was a false statement, and that her statements about this to McDaniel were “a mistake.” 

Senior Assistant Attorney General Mackenzie Williams, who is representing the defendants, which include the WDE itself in addition to Finnerty and Schroeder, conceded that plaintiffs “made some legitimate criticisms about records and records that could have been responsive.” 

But, he continued, the plaintiffs “also added additional topics and suggested that the department should have known all along to include those topics.” 

“Whenever she received those requests, those additional correspondences, Ms. Finnerty continued to search additional locations and in each case was able to locate some additional records.” 

Records in Schroeder’s possession were an exception to this, Williams added. Schroeder initially declined to hand over personal email accounts and text messages related to the plaintiffs’ records request when Finnerty asked for them, according to testimony. Finnerty said she didn’t have authority to overrule the former superintendent’s decision. 

“He came into my office and said that he’d been consulting with his attorney and that he wasn’t sure he was going to provide those records,” Finnerty testified. 

She didn’t recall if he offered an explanation as to why he didn’t want to produce the records. Finnerty said she informed Williams that Schroeder declined to hand over the records but didn’t inform anyone else at the agency. 

“I wouldn’t have seen that as proper protocol,” she said.

Schroeder explained in his testimony on Thursday that he initially withheld these records while waiting to see if he was required under law to hand them over. He added that he waited because he was told the plaintiffs “wanted the names of the donors who contributed to the event to destroy them.” 

“I had promised anonymity to the donors, and I was intent on keeping my promise,” he said.

Schroeder said that, in addition to Williams, he consulted several people — former Deputy Superintendent of Instruction Chad Auer, State Attorney General Bridget Hill, Wyoming GOP General Counsel Brian Shuck and Cheyenne attorney Drake Hill — about whether the Wyoming Public Records Act required him to turn over these records and received mixed advice. 

Schroeder did eventually produce records from his personal phone. At the request of Judge Steven Sharpe, who is presiding over the case, Schroeder agreed to hand over his phone so that it could be checked for any additional records. 

Despite the missteps made in the process of producing the records that Powers and McDaniel had requested, Williams argued this doesn’t show plaintiffs had malicious intent. 

“I think the plaintiffs have some legitimate points in terms of yes, these record searches should have been better,” Williams said. 

But, he said, the defendants “seem continuously willing” to take what they have learned in the process and provide more records. 

“There’s no actual indication of bad faith or a willful or intentional violation of the Public Records Act.” 

As for Schroeder’s initial unwillingness to turn over records, Williams argued that he didn’t violate the Public Records Act because he “believed, at the very least, that it was arguable whether he had to produce those records.” 

But McDaniel argued that the defendants’ response to the records request showed a “willing blindness.” 

“They say that they were confused, that they had gotten mixed signals,” he said. “Well, if you’re a public records officer and you’re getting mixed signals, you go look, you get more information.” 

As for Schroeder, Powers said he doesn’t understand Schroeder’s ability “to defend his decision to stonewall his own information officer when she came to him and asked to see his personal accounts.” 

“Mr. Schroeder deliberately, knowingly and intentionally withheld those records, and he did not produce them until after this lawsuit was filed, and that, your Honor, is a defeat of the entire purpose of the Public Records Act,” he said.


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