A Win For Open Government

Last week the state Supreme Court issued an important Freedom of Information Act decision involving records of alleged misconduct by public school and university teachers. Rejecting an argument that such records constituted “records of teacher performance and evaluation,” which are exempt from disclosure under the FOIA, a unanimous Supreme Court held that misconduct records must be disclosed to the public. Mark Pazniokas has an excellent story about the decision over at The CT Mirror.

I write to make two additional points.  First, Justice Eveleigh wrote a clear, cogent and compelling decision for the court, a decision that reaffirms the long-settled proposition that exemptions to the FOIA must be construed narrowly, a proposition too many state and local agencies often forget–sometimes on purpose I think.

Second, the decision undercuts the argument, voiced by some of my friends in the open government community, that the Supreme Court is actively hostile to the FOIA. To be sure, the court occasionally disappoints me when it comes to FOIA decisions. In close cases, I would prefer that it err in favor of, rather than against, disclosure. (See, e.g., my post about a police records decision it released in July 2014.) But I don’t think it is fair to call the court hostile to our state sunshine law.

Oftentimes, the problem lies not with the court, but with the law that it is interpreting, a law that has been amended too many times since it was enacted in 1975. The best way to get consistently “better” FOIA decisions out of the Supreme Court is to persuade the legislature of the value of open government–just look at the mess in Chicago caused by hiding public records about police misconduct–and fix some of the weaknesses with the act.  On that point I’m sure all of my open government friends agree.


Let The Sun Shine: Pass Raised Bill 6750

The General Assembly held a public hearing last week on Raised Bill 6750, An Act Expanding The Requirement For Disclosure Of Arrest Records During A Pending Prosecution Under The Freedom Of Information Act. The bill seeks to overturn a Connecticut Supreme Court decision last year, Comm’r of Public Safety v. FOIC, which set aside the Freedom of Information Commission’s longstanding (20 years!) interpretation of the Freedom of Information Act concerning the release of arrest records. The Supreme Court decision was bad for government transparency, the proposed bill is good and the arguments against the bill are weak. The legislature should pass the bill and the governor should sign it.

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Arsenic And Old Lace, Ctd.

During oral argument today in an interesting Freedom of Information Act case involving historical records about Amy Archer Gilligan, the long-deceased murderer who inspired the play and movie “Arsenic and Old Lace,” Justice Andrew McDonald asked an interesting question about how a person becomes a public figure. 

According to Hugh McQuaid’s story in ctnewsjunkie, Justice McDonald questioned the notion that a person can become a public figure (as that term is understood in the invasion of privacy exception to the FOIA) by having that status thrust upon them and whether that status, once acquired, can fade with the passage of time.  He seemed skeptical of the first notion and supportive of the second. 

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Arsenic And Old Lace . . . And Freedom Of Information?

The Connecticut Supreme Court will consider arguments tomorrow morning in a case concerning public access to historical records about Amy Archer Gilligan–the murderer who served as the inspiration for the 1944 movie (starring Cary Grant) and the 1941 play, “Arsenic and Old Lace.”  It turns out that Gilligan, who used arsenic to poison a resident in her nursing home, spent the years 1924 through 1962 confined to a Connecticut state mental institution, now Connecticut Valley Hospital.

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Can A Judicial Decision Be Both Right And Wrong At The Same Time?

On Monday the Connecticut Supreme Court released its unanimous decision in an important Freedom of Information Act (“FOIA”) case, Comm’r of Public Safety v. FOICwhich involved a 2008 request for arrest records by the New Haven Register.  The media and open government advocates, myself included, have expressed considerable disappointment with the decision, which holds that the police (both local and state) need only disclose the barest minimum of information about an arrest.  (Disclosure: I supervised several students from the Yale Law School Media Freedom and Information Access Clinic, which wrote a fantastic amicus brief in the case on behalf of a multitude of media and open government organizations.) Read the rest of this entry »

New York Times v. Sullivan, “Breathing Space” And Freedom Of Information

“Whatever is added to the field of libel [individual privacy] is taken from the field of free debate [freedom of information].”

Daniel J. Klau (March 13, 2014) (paraphrasing New York Times v. Sullivan, 376 U.S. 254 (1964)).

* * *

Fifty years (and 4 days) ago, the United States Supreme Court decided the landmark defamation case, New York Times v. Sullivan, which established the “actual malice” standard for defamation claims against public officials.  That standard requires a public official who brings a defamation suit to establish not only that the challenged statements are false and defamatory, but also that the defendant made the statements with: i) actual knowledge of their falsity, or ii) reckless disregard for their probable falsity.  That is a heavy burden for a public official to meet and, not surprisingly, the actual malice standard greatly reduces the likelihood of a newspaper or other media entity being held legally responsible for libeling a public official.  Face it, as much as many people dislike the media, reporters and editors generally are not in the habit of saying things that they know for a fact to be untrue.

What does any of this have to do with freedom of information? I’m getting there, I promise.

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Finally, A Ray Of Open Government Sanity In The State Senate

After a year of emotion clouding reason in the public debate over freedom of information in Connecticut, a ray of sanity broke through those clouds last Thursday.

Efforts to curtail public access to 911 calls and photographs of homicides have gained momentum since last June, culminating in a widely criticized set of recommendations proposed last month by the legislature’s  “Task Force on Victim Privacy and the Public’s Right to Know.”  The Task Force, which was weighted in favor of privacy advocates, and which never even considered the possibility of recommending that the legislature repeal anti-Freedom of Information Act (“FOIA”) legislation it passed in almost total secrecy last June, recommended that 911 emergency calls and other records be made largely exempt from disclosure under the FOIA.

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Executive Order No. 38–A Step In The Right Direction

I have not always been thrilled by some of current administration’s actions with respect to freedom of information, but if someone is going to criticize an administration, he or she also should give credit where credit is due. Read the rest of this entry »

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.

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