Contempt For Freedom Of Information (And For The Freedom Of Information Commission)

Connecticut, we have a problem.

The media and commentators have consumed much digital ink over the past year discussing the General Assembly’s repeated efforts to undermine and curtail the Freedom of Information Act (“FOIA”). But that is not the problem of which I speak, although that is a big problem. The even bigger problem is that too many state and municipal agencies have nothing but contempt for the FOIA and the body that enforces it, the Freedom of Information Commission (“FOIC”). Even when the law regarding the disclosure of certain types of documents is clear, unambiguous and long-settled, too many state and local agencies simply refuse to produce documents that they are bound by law to disclose.

Two recent FOI decisions illustrate this contempt. On August 28, 2013, the FOIC issued a final decision in a case involving lawyer and Hartford Courant columnist Kevin Rennie’s request that the Office of Legislative Management (“OLM”) (the administrative arm of the General Assembly) produce copies of federal grand jury subpoenas served on the OLM since September 1, 2012. The OLM refused to produce copies of the subpoenas, citing a letter from federal prosecutors that correctly stated that the OLM was free to disclose the subpoenas, but nevertheless asked it not to as a matter of deference to a federal investigation. FOIC Hearing Officer Lisa Fein Siegel properly noted in her decision that

the issue of whether copies of federal grand jury subpoenas must be disclosed pursuant to the FOI Act was decided in the affirmative in a 2010 Superior Court case, Division of Criminal Justice, et al v. FOI Commission, et al, Superior Court, judicial district of New Britain, Docket #CV094020325S (February 25, 2010, Cohn, J.).

In other words, the OLM simply decided not to comply with settled law.

The second FOI decision (actually a hearing officer’s proposed decision, which the FOIC will consider at its scheduled meeting later this month) involved the Associated Press’s request to the Newtown Police Department for recordings of 911 calls made during the attack on the Sandy Hook Elementary School last December.   (The AP’s request, and the Newtown PD’s rejection of that request, both predated legislation adopted at the end of the 2013 legislative session, which exempts from disclosure 911 calls that describe a homicide victim’s condition.)  The Newtown PD refused to release the 911 records, citing a request by state prosecutors that it not do so.  FOIC Hearing Officer Kathleen Ross wrote:

The Commission is dismayed that it is again presented with an issue that it addressed in 2008 wherein a local police department refused to disclose the 911 calls at issue based on a directive from a state’s attorney because such records relate to an ‘ongoing’ investigation.  . . .  In essence, the respondents’ position is that the … records, as part of an ongoing criminal investigation where it is not yet known if a prosecution will ensue, are not required to be disclosed.  . .  However, the Appellate Court explicitly rejected this very argument.

I am not oblivious to the ongoing public debate about the disclosure of the Sandy Hook 911 calls, nor am I insensitive or indifferent to the heartfelt and genuine concerns of family members whose loved ones’ voices may be on some of those calls.  If the result of the public debate is to limit disclosure of certain 911 calls, that will be the law.  My point is that when the AP made its request, the law was clear that the 911 tapes should have been produced.  A hope or expectation that an anticipated law may exempt the disclosure of a document is not grounds to ignore the law as it exists at the time a request is made.

I could cite many more examples of state and municipal agencies refusing to produce documents based on arguments that the FOIC and our state courts have expressly rejected or that are objectively frivolous.

Why do the agencies show such contempt for the FOIA and the FOIC?  Because they can do so with virtual impunity.  Because they know they can get away with it.  They know how to play the “FOI appeal” game to their advantage and they know that there are no real consequences for willfully violating the FOIA.

Here’s how the game works.  A member of the public makes a request for the production of a public record. If the record is not subject to an exemption in the FOIA, the document should be produced promptly. Even if the record is subject to an exemption, however, the agency may still produce it. The law is clearly established that even when an exemption applies, the agency still has the discretion to disclose the document anyway. Let’s assume the agency decides it doesn’t feel like producing the document.  It issues a boilerplate letter identifying one or more exemptions that it says apply to the requested record. The requester then files a complaint with the FOIC, which must resolve the complaint within one year. The FOIC staff, which is inundated with such complaints, works diligently to process them by the statutory deadline. Further assume that the FOIC rejects the agency’s exemption arguments and orders the agency to disclose the requested documents. The requester then gets the documents, right?  WRONG. The agency files an administrative appeal in the Superior Court. While the appeal is pending, the order to disclose the document is stayed.  The administrative appeal process can take another year. Now assume that the Superior Court judge hearing the administrative appeal affirms the FOIC’s decision ordering disclosure of the document. The requester gets the documents then, right? WRONG AGAIN. The agency files an appeal to the Appellate Court, which effectively stays the disclosure order while that appeal is pending, which can take another year.  Finally, assume that the Appellate (or the Supreme) Court affirms the trial court. The record gets disclosed–years after the request was made and when the document’s newsworthiness, and thus its relevance to the public, may have diminished greatly.

And what happens to the agency that simply ignored settled law?  It gets a slap on the wrist.  For example, the sanction in the Kevin Rennie case was this:   “Henceforth, the respondents shall comply with the promptness requirements of §§1-210(a) and 1-212(a), G.S.”  The FOIC has the authority to impose a monetary penalty, but it declined to do so.  It should have.  I understand its reluctance to do so: imposing a monetary sanction on the administrative arm of the legislature is hardly a good way to make nicey nice with the branch of government that provides the funding for your agency.  But that is why the FOIC must have not only decisional independence, but budgetary independence as well.

Connecticut, we’ve got a problem.