foi 101 a crash course in the foi act
DESCRIPTION
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). - PowerPoint PPT PresentationTRANSCRIPT
FOI 101 A Crash Course in the FOI
ActPresented by
Tracie C. BrownPrincipal Attorney
Freedom of Information Commission
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
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
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
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
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.***
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
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
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
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