FOI 101 A Crash Course in the FOI Act

FOI 101 A Crash Course in the FOI Act

FOI 101 A Crash Course in the FOI Act Presented by Tracie C. Brown Principal Attorney Freedom of Information Commission FOI 101 Crash Course Road Map Records Provisions

Meetings Provisions The FOI Commission Q&A Public Records Section 1-200(5) Any recorded data or information relating to the conduct of the public's business Prepared, owned, used, received or

retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218 Whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method. Public Records Section 1-210(a)

All records maintained or kept on file by any public agency Whether or not such records are required by any law or by any rule or regulation Except where federal law or state statute provides otherwise. Section 1-210(a) The Public has a right to:

(1) inspect such records promptly during regular office or business hours, (2) copy such records

(3) receive a copy of such records Section 1-212(a) The Act also provides that: Any person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record. The type of copy provided shall be within the discretion of the public agency, except (1) the agency shall provide a certified copy whenever requested, and (2) if the applicant does not

have access to a computer or facsimile machine, the public agency shall not send the applicant an electronic or facsimile copy. Public Records Promptness Without undue delay Take into account the agencys workload FOI requests are a part of the agencys duties and should be given no greater or

lesser priority simply because it is an FOI request Take into account the requesters time requirements Take into account size and difficulty of the request PUBLIC RECORDS GENERAL RULES

Right to inspect records promptly during regular office or business hours Right to receive a copy promptly upon request No duty to conduct research

No duty to create records that do not already exist Electronic scanning of records now recognized by statute PUBLIC RECORDS EXCEPTIONS, EXEMPTIONS & EXCLUSIONS Exceptions are Mandatory

Federal law (includes non-statutory forms of binding law, such as agency regulations) State statute (does not include non-statutory forms of law, such as agency rules or regulations or local law) Conn. Gen. Stat. 1-210(a) PUBLIC RECORDS: EXCEPTIONS, EXEMPTIONS & EXCLUSIONS Exemptions are permissive or discretionary i.e.,

an agency need not invoke them Exemptions are listed and described in C.G.S. sec. 1-210(b) of the FOI Act PUBLIC RECORDS: EXCEPTIONS, EXEMPTIONS & EXCLUSIONS Exclusions are mandatory Theyre listed and described in other sections of the FOI Act (e.g., C.G.S. 1-217 which excludes residential addresses of certain public safety

officials) PUBLIC RECORDS: COST OF COPIES State Agencies no more than 25 cents per page All other public agencies no more than 50 cents per page If any copy requires a transcription, or if any person applies for a transcription of a public record, the fee for such

transcription shall not exceed the cost thereof to the public agency Conn. Gen. Stat. 1-212(a)(1) and (2) PUBLIC RECORDS: COST OF COPIES Computer-Stored Public Records Any agency which maintains records in a computer storage system must provide a copy of any nonexempt data, on paper, disk, tape or any other electronic storage device or medium

requested by the person, if the agency can reasonably make such copy or have such copy made Except as otherwise provided by state statute, the cost for providing a copy of such data shall be in accordance with the provisions of C.G.S. sec.1212 Conn. Gen. Stat. 1-211 Contested Cases Contested Cases

Robert H. Boone and Journal Inquirer v. Metropolitan District Commission Docket #FIC 2000-137 Contest Cases FACTS: The complainants made a request for access to

records that identified the individual employees by name and the discipline each received for their alleged involved in a fire that destroy the MDCs composting facility. Upon receipt of the request, MDC determined only that the records requested would impact the personal privacy of the employees. MDC informed that employees of the request and gave them an opportunity to object to the disclosure of the records

Contested Cases FACTS cont. The employees objected to the disclosure of the records claiming disclosure would invade their personal privacy. Three of the employees were involved in a grievance regarding the disciplinary action taken against them at the time of the request.

Contested Cases What right was alleged to be violated? 1-210(a) every person shall have the right to inspect such records promptly during regular office or business hours Contested Cases MDCs defense:

1-210(b)(2) Nothing in the Freedom of Information Act shall be construed to require disclosure of Personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy Contested Cases MDCs defense cont.

1-214(c) .Upon the filing of an objection as provided in this subsection, the agency shall not disclose the requested records unless ordered to do so by the Freedom of Information Commission pursuant to section 1-206 Contested Cases A CLOSER LOOK AT 1-214

Refer to your copy of the FOI Act Contested Cases Karen Perkins v. FOIC The claimant must first establish that the files in question are personnel, medical or similar files. Second, the claimant must show that disclosure of the records would constitute

an invasion of personal privacy. Contested Cases Karen Perkins v. FOIC In determining whether disclosure would constitute an invasion of personal privacy, the claimant must establish both of two elements: first, that the information sought does not pertain to legitimate matters of public concern, and

second, that such information is highly offensive to a reasonable person. Contested Case What do you think? Contested Cases Dan Levine v.

Public Information Officer, Police Department, City of Hartford Docket 2004-092 Contested Cases FACTS: Mr. Levine asked for access to all internal affairs investigations related to a specific officer. The HPD gave him access one but the officer objected to the

disclosure of the other so HPD withheld it. The off duty conducted was related to his position as a police officer it involved his behavior in a program sanction and promoted by the HPD. The matter was not criminal. The file contained no charges of misconduct and no disciplinary action was taken against the officer. Contested Cases

FACTS cont. The file contained a letter of complaint, a transcript of interviews with the officer addressing the complaint, and a recommendation that the officer conduct the program differently in one respect. Most of the file contained letters from parents written in support of and praising the officer. No discipline was recommended in the report. The letter of complaint questioned the propriety of the participants in the program staying overnight at the officers home. The officer had not reviewed the file before he objected to the disclosure.

Contested Cases What right was alleged to be violated? 1-210(a) every person shall have the right to inspect such records promptly during regular office or business hours Contested Cases Karen Perkins v. FOIC In determining whether disclosure would

constitute an invasion of personal privacy, the claimant must establish both of two elements: first, that the information sought does not pertain to legitimate matters of public concern, and second, that such information is highly offensive to a reasonable person. Contested Case

Given the facts, could the officer meet the test for invasion of personal privacy? What do you think about the fact that he never looked at the file before he objected to its disclosure? Contested Cases

Uncorroborated Allegations 1-210(b)(3)(G) provides in relevant part that Nothing in the Freedom of Information Act shall be construed to require disclosure of Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of

uncorroborated allegations subject to destruction Contested Cases Does the exemption apply? Q&A Any questions?

Practice Skit Public Meetings Public Meetings Definition of Public Meeting

Any hearing of a public agency Other proceedings of a public agency Any convening or assembly of a quorum of a multimember public agency and Any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power

Public Meetings Non-meeting Meetings Exclusions to the open meetings requirements of the FOI Act are generally found in C.G.S. sec. 1200(2), they include: - chance or social gatherings; - collective bargaining strategy and negotiations; - caucuses; and - communications limited to notice of meetings or agendas

Public Meetings 1-225(a) The meetings of all public agencies, except executive sessions as defined in C.G.S. 1-200(6) shall be open to the public Public Meetings EXECUTIVE SESSION Only agency members may attend, except for persons invited to testify or give

opinion (attendance limited to time persons are providing testimony or opinion). The agency must vote, by at least 2/3rds of those present and voting, to convene in executive session in public, and must state the purpose. Public Meetings EXECUTIVE SESSION Permitted executive session purposes are: 1) discussion of appointment, performance, evaluations, health,

& dismissals of an employee (the employee must be notified and can require a public meeting); 2) strategy & negotiations with respect to pending claims and litigation; 3) security matters; 4) real estate acquisition by a political subdivision (if openness is likely to increase the price); and 5) discussions that would disclose records that are exempt from disclosure. Public Meetings

The FOI Act Recognizes 3 Types of Meetings Regular. Special. Emergency (or emergency special). (Conn. Gen. Stat. sec. 1-225(b) and (c)) NOTICE OF MEETINGS Type

Notice Regular File yearly schedule with Secy Of State (state) or Town Clerk (municipal) by

Jan. 31st.** Special Emergency Agenda/ Notice Contents Adding to

Agenda/ Notice Filing Record of Votes Filing Minutes Agenda available at

least 24hrs. before meeting.** Agenda items may be added by 2/3 vote of those members present and voting.

Within 48 hrs. after meeting (if minutes not available within 48 hours). Within 7 calendar days after meeting.*** At least 24 hrs. before meeting,

file at Secy Of State (state) or Town Clerk (municipal).* At least 24 hrs. before meeting. Time, place and business must be included in notice.*

Not permitted Within 48 hrs. after meeting (if minutes not available within 48 hours). Within 7 business days after meeting.***

None required if emergency is justified. None required if emergency is justified. Only emergency

matters may be considered. Within 48 hrs. after meeting (if minutes not available within 48 hours). Within 72 hrs. after meeting. Must state reason for

emergency.*** * Available with Secy Of State (state) or Town Clerk and in place of business. Also, must be posted on agency website. ** Available with Secy Of State (state) or Town Clerk and in place of business. Also, must be posted on websites for state agencies only. ***Must be posted on agency website for state agencies only. 02/22/2020 43

Contested Cases Contested Cases Rick Guinness and the New Britain Herald v. Board of Finance, City of New Britain Docket #FIC 2008-164 Contested Cases

FACTS Pursuant to New Britains charter, town departments were required to submit budget recommendations after which a hearing on the recommendations was required. Two members of the Board of Finance met with the Board of Education to discuss its submitted budget recommendations. There was no quorum of the Board of Finance There Board of Finance has supervision, jurisdiction, control, advisory power over all town budget matters.

There was no notice of the workshop, and there were no minutes of it either. Contested Cases What right was allegedly violated? 1-225(a) The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public.

Contested Cases Was there a meeting? We must ask was there one of the following: A hearing or other proceeding Any convening or assembly of a quorum of a multimember public agency Any communication by or to a quorum of a multimember public agency Was there discussion or action upon a matter over which the Board had supervision, control,

jurisdiction or advisory power. Contested Cases Supreme Court the statutory definition of public meetings contained in 1-18a(b) [re-codified as 1-200(2), G.S.] must be read to limit rather than to expand the opportunities for public agencies to hold closed hearings." See Glastonbury Education Association v. Freedom of Information Commission, 234 Conn. 704, 713-714 (1995).

Contested Cases Supreme Court It is also specifically concluded that it is not necessary to have a quorum in order to have a "hearing" or "proceeding", and therefore a "meeting" pursuant to 1200(2), G.S. Contested Cases Was there a meeting under the FOI Act?

Contested Cases What about the notice and the minutes? See cheat sheet. Contested Cases Marlin James Lively v. Mary Moran, Chairman, Police Commission, Town of Trumbull; John Riordan; James

McNamara; Lino Constantini; David Wilson, as members, Police Commission, Town of Trumbull; and Police Commission, Town of Trumbull Docket #FIC 2002-008 Contested Cases Facts The Mr. Lively and the Police Commission were parties in a

lawsuit which was pending at all times relevant to the complaint. The Police Commission held a regular meeting December 21, 2001 which Mr. Lively and his attorney attended. Prior to the meeting, Mr. Lively was verbally informed that his job performance would be discussed in executive session and he did not object at that time. When the executive session was called, the complainant did not object to the session. Contested Cases

Facts cont. The Police Commission discussed the lawsuit and the complainants job performance in executive session. The Police Commission voted to place the Mr. Lively on administrative leave. The minutes of the meeting were made available six days after the meeting. The minutes did not record the votes to convene in the executive sessions.

Contested Cases What right was allegedly violated? 1-225(a) The meetings of all public agenciesshall be open to the public... Contested Cases The Police Commissions Defense SEE

1-200(6)(A) Personnel Matters 1-200(6)(B) Pending Litigation and 1-231(a) Attendance is limited Contested Cases Was the executive session proper? Contested Cases

What about the minutes and the recording of the votes? Contested Cases See 1-225(a) The votes of each member of any such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken.

Q&A Any questions? Practice Skit THE FOI COMMISSION Comprised of nine members appointed to staggered terms; five appointed by Governor, four appointed by legislature leadership

No more than five members can be members of the same political party THE FOI COMMISSION Mediate, hear and decide citizen complaints Issue declaratory rulings Public education and training of public officials FOI Commission staff represents the Commission in court Makes recommendations to the legislature

THE FOI COMMISSION Order the disclosure of public records Declare null and void votes taken at meetings held in violation of the FOI Act Fine the responsible public officials for violation of the FOI Act without reasonable grounds Fine people who bring meritless FOI complaints frivolously, without reasonable grounds and solely for the purpose of harassment The Process

Clearly written letter of complaint (appeal) to the Commission (enclose request letter and any other documents relevant to the request) File complaint with FOI Commission within 30 days after denial of any right conferred by the FOI Act to avoid loss of subject matter jurisdiction.

The Process The Ombudsman Program Form of mediation Attempt to reach amicable resolution, acceptable to all parties, of complaints Discussions are confidential, no carryover to hearing if negotiations are not successful Ombudsman may not discuss case with Hearing Officer Settlements can include: narrowing of issues, partial

release of requested records or release of redacted records, written admission of FOI mistake, scheduling of FOI workshops by Commission staff The Process Hearings

Contested case hearings are 90 minutes. Non-formal proceeding, however, preparation is important. No lawyer required Testimony, exhibits and arguments are

presented Recommendations, called hearing officer reports, submitted to all parties and the Commission. Commission makes final decision at a meeting. The Process The Commission Meeting 10 minutes of legal argument permitted to each party. Time should be used to advocate for or against

the hearing officers report. No testimony or fact-finding permitted. Commission may accept the hearing officers report, reject it, or change it. Q&A Thank you for attending!

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