Barrett Seeking Judge's Permission to Reopen Lawsuit Against D86

Six months after he dismissed Dianne Barrett’s lawsuit against the leadership of , DuPage Judge Thomas Dudgeon will hear arguments at a May 15 hearing on whether or not he should allow the board member to file a third amended complaint against Superintendent Dr. Nick Wahl and Board President Dennis Brennan regarding access to district records.

In March, Dudgeon OK’d the reopening of one aspect of the suit that pertains to Barrett’s access to audiotapes of closed-session board meetings she missed. Executive director Natalie Brouwer Potts of the Center for Open Government, the organization supplying Barrett’s legal counsel, said she hopes the judge will expand that action to the entire suit, especially after a recent District 86 board policy was approved that requires board members to demonstrate their need for district documents that they request.

Potts said the downfall of Barrett’s earlier complaints was their lack of detail regarding the desired documents.

“In the third amended complaint we will fix that problem,” Potts said. “So we are hoping, if [Dudgeon] grants it, the entire case is back on track.”

District 86 attorney James Petrungaro wasn’t shocked that the issue of the closed-session tapes was reopened because it was a small piece of Barrett’s case that was never directly resolved by Dudgeon in .

Petrungaro said district-document access, the “overwhelming majority” of Barrett’s case, is a different story.

“That portion of the case has been dismissed with prejudice and there’s nothing left for them to challenge on that portion of the case,” he said.

Potts said the proposed third complaint would include opposition to a new District 86 board policy that changes rules regarding board members’ access to district documents not made available to the public. Under the new policy, which was approved by a 5-1 vote at a March 19 meeting Barrett missed, board members must demonstrate why they need the requested records. 

“With regard to student records, in order to release a student record to a board member without written permission from the parent or eligible student, the board member must assert legitimate educational interest or current demonstrable educational or administrative interest in the student, and the request for records must be made in furtherance of such interest,” the new policy reads.

Potts said the new policy is illegal because it makes board members deal with “false requirements” and “jump through hoops” to access documents she believes board members are entitled to when elected.

“It is too easy for a majority to really impact the rights to access of a minority in a case like this, when you have an outspoken minority member who’s challenging the school district,” Potts said. “The board is basically institutionalizing an illegal approach to access and we think it’s a direct reaction to Dianne Barrett’s lawsuit.”

Petrungaro said the new policy is legal and is indeed a direct response to Dudgeon’s November ruling. The judge declared that Barrett had not presented a justifiable rationale for unfettered access to district records according to the Illinois Student Records Act (ISRA).

“In certain circumstances, there are confidential records and the board member has to assert a justifiable reason for accessing those records,” Petrungaro said. “Absent that justifiable reason, the board is prohibited by law to disclose those records to the board member.”

After the November ruling, Potts said, Barrett had three options: accept the ruling, file a motion to reopen the case, or appeal to a higher court. Potts said they filed the reopener motion within 30 days of the original ruling and received Dudgeon’s approval on March 14.

The May 15 hearing is not meant to deal with the closed-session tapes reopener. Potts said Dudgeon only wants to hear why he should or should not allow the third complaint.

Barrett's original complaint against District 86 stemmed from requests she filed in July 2009 seeking documents related to special-education issues. She took legal action in July 2010 after the district gave her documents with what her side said was significant redaction. The district has maintained that what was redacted was confidential student information.

Barrett was in the news earlier this week when the District 86 board  for an unrelated action. Barrett independently reached out to the Illinois attorney general and the DuPage state's attorney because she believed the board acted illegally when it approved the sale of more than $15 million in bonds that will fund the installation of air conditioning at and .

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