FOI 101 A Crash Course in the FOI

ActPresented by

Tracie C. BrownPrincipal Attorney

Freedom of Information Commission

Records Provisions Meetings Provisions The FOI Commission Q&A

FOI 101 – Crash Course Road Map

Public Records

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.

Section 1-200(5)

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.

Public Records

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 1-210(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.

Section 1-212(a)

Without undue delay Take into account the agency’s workload FOI requests are a part of the agency’s

duties and should be given no greater or lesser priority simply because it is an FOI request

Take into account the requester’s time requirements

Take into account size and difficulty of the request

Public RecordsPromptness

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)

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 They’re 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: EXCEPTIONS, EXEMPTIONS & EXCLUSIONS

• 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.1-212

Conn. Gen. Stat. §1-211

PUBLIC RECORDS:COST OF COPIES

Contested Cases

Robert H. Boone and Journal Inquirer

v. Metropolitan District Commission

Docket #FIC 2000-137

Contested 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 MDC’s 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

Contest 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

MDC’s 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

MDC’s 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 Cases

What do you think?

Contested Case

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 officer’s 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 Cases

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 Case

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?

Contested Cases

Any questions?

Q&A

Practice Skit

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 MeetingsExclusions to the open meetings requirements of

the FOI Act are generally found in C.G.S. sec. 1-200(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 Recognizes3 Types of Meetings

Regular.Special.Emergency (or emergency special).

(Conn. Gen. Stat. sec. 1-225(b) and (c))

Public Meetings

* Available with Sec’y Of State (state) or Town Clerk and in place of business. Also, must be posted on agency website.** Available with Sec’y 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.

NOTICE OF MEETINGS

04/19/2023 43

Type Notice Agenda/Notice

Contents

Adding to Agenda/ Notice

Filing Record of Votes

Filing Minutes

Regular File yearly schedule with Sec’y Of State (state) or Town Clerk (municipal) by Jan. 31st.**

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.***

Special At least 24 hrs. before meeting, file at Sec’y 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.***

Emergency 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.***

Contested Cases

Rick Guinness and the New Britain Heraldv.

Board of Finance, City of New BritainDocket #FIC 2008-164

Contested Cases

FACTS◦ Pursuant to New Britain’s 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 §1-200(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

complainant’s 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 agencies…shall

be open to the public...

Contested Cases

The Police Commission’s DefenseSEE…

1-200(6)(A) – Personnel Matters1-200(6)(B) – Pending Litigation

and1-231(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.

Contested Cases

Any questions?

Q&A

Practice Skit

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 FOI COMMISSION

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

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 ProcessHearings

The Commission Meeting◦ 10 minutes of legal argument permitted to each

party.◦ Time should be used to advocate for or against

the hearing officer’s report.◦ No testimony or fact-finding permitted.◦ Commission may accept the hearing officer’s

report, reject it, or change it.

The Process

Q&A

Thank you for attending!