Connecticut FOIA
By William S. Fish, Jr., and Paul Guggina
When it was enacted in 1975, Connecticut's Freedom of Information Act was hailed as marking a "new era" in the law of public access, "opening up the doors of city and state government to the people of Connecticut."
Legislative support for the Act was motivated by a public backlash against government secrecy in the wake of the Watergate scandal. Before the Act's passage, Connecticut's "right to know" statutes were rather anemic. They recognized that that all records kept by public agencies were subject to public inspection, and gave a right of appeal to the state courts in the event of denial of access. But the appellate process was expensive and uncertain, especially given the lack of guidance interpreting the scope of the law’s cursory openness provision.
The cornerstone of the new statutory scheme was the creation of the Freedom of Information Commission (http://www.state.ct.us/foi/), a state agency empowered to review municipalities' and other agencies' actions denying the public access to records or meetings, to order compliance with the Act, and to impose penalties for violations. The access-hungry public wasted no time finding its way to the Commission's doorstep, and more than 200 decisions were issued in the first year.
Over the years, the Act has been amended from time to time - mostly to add new exemptions - but its underlying commitment to openness and user-friendliness has not wavered. The Act isn't perfect - in fact, a recent survey gave it a relatively poor rating because of certain perceived shortcomings - but, in practice, the existence of the Commission goes a long way toward correcting its deficiencies. By providing every person a free, accessible, efficient mechanism for challenging the denial of access to records or meetings, the Commission sets Connecticut apart from states that require their citizens to engage in costly litigation to gain the access to which they are entitled under the law.
Justice under the Act can often be achieved relatively quickly - that is, in months as opposed to years. A municipality or other state agency that denies a request for access to records under the Act must issue its denial within four business days, among the shortest mandated response times of all state access laws. Anyone who is denied access to records - or who gets no response from the agency within four days of his or her request - may appeal directly to the Commission, and is entitled to a prompt hearing. There is no charge to file an appeal, and the process is initiated simply by writing a letter to the Commission.
Unlike many states' public records laws, Connecticut's FOI Act gives every person who is denied access to records or public meetings the right to a hearing before a representative of the Commission. Although the promptness of the hearing depends on the caseload of the Commission at the time, it's common for hearings to take place within three or four months of the appeal.
Before the hearing takes place, an ombudsman employed by the Commission contacts the complainant and the municipality or other state agency in an effort to settle the dispute. Often a compromise can be reached, or the ombudsman can clarify misunderstandings by one party or the other. About half of all disputed cases are resolved through the Commission's ombudsman program.
Cases that aren't settled proceed to a hearing before a hearing officer. The hearing officer is usually one of the five governor-appointed commissioners, accompanied by a staff attorney. Sometimes a staff attorney acts as the hearing officer. Hearings are informal, but the agency that has denied a records request bears the burden of proving that the records are exempt from disclosure. Complainants need not be represented by counsel, and the rules of evidence are relaxed. The hearing officer may review the documents to determine whether an exemption applies.
Parties may appear at hearings without or without lawyers. Witnesses may be subpoenaed to appear and testify, and the hearing officer may obtain a Superior Court order compelling a witness's appearance if necessary. Complainants are given 90 minutes to be heard, but more complex cases can require more time. The hearings are recorded, providing a record for appellate review if necessary. In some cases, parties in addition to the complainant and agency may intervene and be heard - for example, an agency employee whose personnel records are the subject of the FOI request, or a law enforcement agency whose ongoing investigation may be compromised by disclosure of the requested records.
Following the conclusion of the hearing, the parties are given the opportunity to submit written legal arguments supporting their respective positions. The hearing officer then drafts and circulates a proposed written decision, normally within a few weeks of the hearing. The proposed decision is put to a vote of the Commission at one of its bimonthly meetings, at which the parties are given a final opportunity to present arguments. The full Commission typically affirms the proposed decision, but occasionally modifies the hearing officer’s findings or, in very rare circumstances, even reverses the proposed outcome.
A final written decision is published within a few days of the full Commission hearing. All of the Commission's decisions are available in searchable electronic format, which provides a useful resource for citizens and agencies seeking guidance on how the Act is likely to be applied to a particular dispute.
Parties dissatisfied with the Commission's final decision may appeal within 45 days to the Superior court. Such appeals are subject to the Uniform Administrative Appeals Act, and are based on the record before the Commission. Superior Court appeals are typically resolved within a year, after which appeals may be taken to the state appellate courts. During appeals to both the Superior Court and the appellate courts, the Commission is represented by one of its staff attorneys. When an appeal is taken by an agency, the citizen who made the underlying request may participate in the appeal, or may defer to the Commission to defend its decision.
At last count, the FOI statute listed twenty-four categories of documents that were exempt from the Act’s disclosure requirements. Additionally, there are about 70 categories of documents identified in other Connecticut statutes that are subject to at least conditional protection from disclosure. These are comprised primarily of confidential documents filed with the state courts, including certain criminal and family court records.
The same procedure that governs records requests also applies to appeals based on the denial of access to public meetings.
The Act allows the Commission to impose civil penalties of up to $1,000 on agencies that deny access to records without reasonable grounds. Historically, the Commission has exercised its authority to impose fines conservatively, but the trend is toward more frequent use of this tool. Fines are more likely to be imposed against repeat offenders, or in cases where there is evidence of an improper motive for denying the records. Individuals who refuse to comply with orders of the Commission are subject to potential criminal prosecution under the Act, but in practice this provision is rarely enforced.
The Commission has a $2 million annual budget, and employs a staff of 22, including ten attorneys and two paralegals. All Commission employees work from a central office in downtown Hartford, where all hearings take place and where the Commission holds its bi-monthly meetings. In the 2007-2008 fiscal year, the Commission received 725 appeals. About half of them were settled after informal mediation by the ombudsman, and twenty-five proceeded to further appeals in the courts.
The five commissioners are appointed by the governor to four-year terms. Other than a requirement that no more than three commissioners be of the same political party, there are no prerequisites to serving as commissioner. The current board is made up of an attorney, a former newspaper journalist, a retired insurance executive, and a homemaker. (One seat is presently vacant.) The terms are renewable, and most of the present commissioners have served for more than ten years.
For all that is good about Connecticut's FOI Act, the statute is not without its shortcomings. The four-day response deadline for records requests applies only to denials of such requests. Agencies that intend to produce records in response to FOI requests are required to do so "promptly," a term that is not defined by statute and that is dependent on the circumstances of each request. Furthermore, there are no statutory guidelines for the imposition of civil penalties, and prevailing parties cannot recover attorney’s fees (except in rare instances where a "frivolous or dilatory" appeal is taken to the Superior Court, and even then recovery is limited to $1,000). Another criticism of the statute is that it does not provide a process for expedited appeals. The latter is particularly problematic for journalists, for whom a four-month wait for a hearing date is less than expeditious.
These perceived deficiencies in the Act earned it a failing grade in a 50-state report card compiled in 2008 by the Better Government Association and the National Freedom of Information Coalition. The BGA/NFIC survey ranked Connecticut 17th overall, and third among New England states -- behind Rhode Island (9th) and Vermont (12th), but ahead of Maine (32nd), New Hampshire (also 32nd), and Massachusetts (42nd).
As attorneys who have navigated the Act for a combined 35 years, we feel the BGA/NFIC survey doesn't provide an accurate picture of the Act’s effectiveness. By penalizing Connecticut's relatively weak attorney's fees provision, for example, the survey fails to acknowledge the fact that most people don't need an attorney to pursue appeals under the Act, and thereby don't incur any legal fees to begin with. And the survey doesn't account for the user-friendliness of the respective state laws - a consideration that surely would have yielded a better grade for Connecticut.
Our own report card gives the Act high marks for accessibility and ease of use, with room for improvement - especially in the areas of expedited appeals and attorney’s fees. All in all, the Act is truly a "people's law" that more often than not achieves its goal of opening the doors of government to the citizens of Connecticut.
William S. Fish, Jr., and Paul Guggina are attorneys in the Hartford office of the law firm Hinckley Allen & Snyder, LLP. They regularly appear before the state Freedom of Information Commission, often representing members of the news media as part of the firm’s media law practice. They co-author the Connecticut chapter of the Open Government Guide published by the Reporters Committee for Freedom of the Press. They can be reached at (860) 725-6200, or by email at wfish@haslaw.com and pguggina@haslaw.com.
Useful Internet Links
Connecticut's Freedom of Information Commission: http://www.state.ct.us/foi/
National Freedom of Information Coalition/Better Government Association's 50-state Survey of FOI Laws: http://www.nfoic.org/uploads/results1.pdf
The Reporters Committee for Freedom of the Press's Freedom of Information Resources: http://www.rcfp.org/foia/