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FOI 101 A Crash Course in the FOI Act

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).

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FOI 101 A Crash Course in the FOI Act

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  1. FOI 101 A Crash Course in the FOI Act Presented by Tracie C. Brown Principal Attorney Freedom of Information Commission

  2. FOI 101 – Crash Course Road Map • Records Provisions • Meetings Provisions • The FOI Commission • Q&A

  3. Public Records

  4. Section 1-200(5) • 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.

  5. Public Records 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.

  6. Section 1-210(a) 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…

  7. Section 1-212(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.

  8. Public RecordsPromptness • 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

  9. 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

  10. 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)

  11. PUBLIC RECORDS: EXCEPTIONS, EXEMPTIONS & EXCLUSIONS • 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

  12. 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)

  13. PUBLIC RECORDS:COST OF COPIES • 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)

  14. 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

  15. Contested Cases

  16. Contested Cases Robert H. Boone and Journal Inquirer v. Metropolitan District Commission Docket #FIC 2000-137

  17. Contest 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

  18. Contested 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.

  19. 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…

  20. 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…

  21. 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…

  22. Contested Cases A CLOSER LOOK AT §1-214 Refer to your copy of the FOI Act

  23. 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.

  24. 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.

  25. Contested Case What do you think?

  26. Contested Cases Dan Levine v. Public Information Officer, Police Department, City of Hartford Docket 2004-092

  27. 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.

  28. 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.

  29. 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…

  30. 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.

  31. Contested Case • 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?

  32. Contested Cases 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 …

  33. Contested Cases Does the exemption apply?

  34. Q&A Any questions?

  35. Practice Skit

  36. Public Meetings

  37. 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

  38. Public Meetings Non-meeting Meetings Exclusions 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

  39. 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

  40. 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.

  41. 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.

  42. Public Meetings The FOI Act Recognizes 3 Types of Meetings • Regular. • Special. • Emergency (or emergency special). (Conn. Gen. Stat. sec. 1-225(b) and (c))

  43. NOTICE OF 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.

  44. Contested Cases

  45. Contested Cases Rick Guinness and the New Britain Herald v. Board of Finance, City of New Britain Docket #FIC 2008-164

  46. 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.

  47. 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.

  48. 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.

  49. 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).

  50. 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.”

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