Connecticut Council on Freedom of Information
An Agenda for Open Government
All three branches of Connecticut’s state government, and many municipal governments, are straying from the principles of accountability embodied in the state Freedom of Information Act, passed unanimously by the legislature in 1975 at the urging of then-Gov. Ella T. Grasso.
The law established the state Freedom of Information Commission, the only agency of its kind in the United States. Last year the commission was folded into a super-agency, diminishing its autonomy, costing it key staff and leaving it more overburdened than ever.
In just the past two years, Connecticut’s government has continued to chip away at the people’s ability to know what their government does. For example:
- The General Assembly has continued to pass, at the very end of legislative sessions, “midnight amendments” that further erode the people’s right to know. These amendments bypass public hearings so necessary to understanding the effects of proposed legislation.
- Past financial disclosure statements of elected Congressional and state officials were destroyed by the state Ethics Commission.
- Public universities have kept the discipline of errant professors secret, and the University of Connecticut has continued to hide information of public interest by delegating public functions to private companies and the disclosure-immune University of Connecticut Foundation.
- The legislature has passed laws barring access to historical records that historians and other researchers need to shed light on societal issues.
- The governor’s office has proposed shutting off access to economic development information that has historically been open.
- The state Appellate Court has ruled in favor of more secrecy in arrest records when, in the past, judges have ruled for the public’s right to know, even in the face of stubborn state police opposition.
- The Supreme Court ruled that home addresses of certain public servants could be kept secret in municipal records that have been complete and open for three centuries.
- State employees disciplined for fraud in applying for food stamps in the wake of hurricane Irene are not being identified.
- Public-employee union contracts approved by the legislature are being used to nullify provisions of the Freedom of Information Act that allow the public to hold public employees accountable for their conduct.
- New fees are being proposed for inspection of public records.
The Connecticut Council on Freedom of Information believes our government leaders must reaffirm the commitment to open government embodied in the original Freedom of Information Act and mirror the enlightened leadership that created it. They should make it a priority in dealing with the issues now on the table. This paper outlines the positions CCFOOI believes they should take on these issues.
Virtually secret “midnight amendments” at the end of legislative sessions strike a blow in the dark against a law dedicated to putting government action in the light. They undermine the credibility of the legislative process and the legislature as a deliberative body. At the very least, the House and Senate should pass legislation that requires any measure affecting freedom of information to receive a public hearing before it can be enacted into law.
During the last legislative session, we and other open-government advocates were able to stop a last-minute amendment that would have drastically curtailed access to information about the state’s deals with private companies seeking economic development assistance. The Malloy administration withdrew the proposal and is reworking it. Meanwhile, state Comptroller Kevin Lembo struck the proper tone when he came out in favor of keeping economic development plans open to the public. CCFOI believes the people have an overriding interest in determining whether these deals, made in their name, are a benefit to the public. They deserve maximum access to information about them.
Using yet another midnight amendment, the state Department of Public Health last session closed off access to historical medical records, including early 20th Century information on Connecticut Valley Hospital patient Amy Archer Gilligan, the infamous mass murderess whose crimes were immortalized in the play “Arsenic and Old Lace.” After failing to make it out of committee in the 2011 legislative section, this measure was tucked in as an amendment to the 37th section of a 98-section public health bill in 2012. While contemporary personal records are rightly confidential, this action will obstruct legitimate historical research. For example the bill was prompted by a CCSU professor’s research into the treatment of “Soldier’s Heart,” the Civil War term for what we now know as post-traumatic stress disorder. It has also blocked research by the author of the first-ever Gilligan biography. CCFOI believes the state should adopt the U.S. Archives standard and make such historical records public after 75 years. The federal government, for example, just released a wealth of personal information with disclosure of the 1940 U.S. Census data.
The public records administrator at the Connecticut State Library has blocked the latest application by the state Ethics Commission director to destroy another year of public officials’ financial disclosure statements. That puts a hold on plans to destroy the 2006 statements of about 2,500 elected and appointed officials, ranging from the governor and his agency commissioners to influential state administrators and all state legislators. The ethics agency has already destroyed a quarter century of the reports that public officials are required to file every year on their sources of income, investments and other information. Journalists, historians and researchers into the political process need these records. The Ethics Commission should electronically preserve them permanently.
Much of the University of Connecticut’s athletic fundraising is secret. For example, Webster Bank signed an agreement that makes it a major sponsor of UConn athletics and will help the school build a basketball training center. The university has refused to disclose the contract or say how much money the university is receiving or what benefits Webster is receiving in return. The university is claiming that the information is exempt from disclosure because the contract is between Webster and a private marketing firm UConn has hired to administer key athletic marketing functions. Meanwhile, under a provision passed by the legislature a decade ago, the tax-exempt University of Connecticut Foundation continues to enjoy a blanket exemption from the Freedom of Information Act.
One the biggest potential threats to public accountability is a state law (Gen. Statutes section 5-278) that is being used to allow public employee contracts ratified by the legislature to trump FOI statutes when it comes to releasing information in employee personnel files. The press has recently been denied access to a Central Connecticut State University professor’s personnel file after he was convicted of three criminal offenses. The contract between the state and the professor’s union, the American Association of University Professors, puts the personnel files of members beyond disclosure. “The entire contents of personnel files,” it says, “shall be considered private and may not be opened to any outside scrutiny except when ordered by a court of law. When a file is requested by an outside party for any reason, the affected member shall be promptly notified and provided with a copy of the request and reason therefore.” The executive branch should refuse to negotiate, and the legislature should refuse to accept, such back-door assaults on accountability in the state’s union contracts.
In another case involving discipline of state employees, the governor’s office has refused to make public the arbitration decisions that rescinded the firings of state employees who fraudulently applied for food stamps. The problem was said to be that a state law forbidding the identification of welfare applicants trumps the Freedom of Information Act. If that questionable assertion is true, the law should be amended so that public employees cannot escape accountability for their misconduct; nor can the government dodge scrutiny of its disciplinary decisions.
Some recent setbacks to public transparency have come at the hands of the courts, which have resolved conflicts between the FOI Act and other state laws in favor of secrecy.
For example, it took an enormous effort last year by a wide coalition, ranging from CCFOI to the Town Clerk’s Association and the Connecticut Conference of Municipalities, to fix an ill-advised and unworkable state Supreme Court ruling that for the first time in history made some public employees’ addresses secret in municipal records like property transfers and grand lists. Such records, basic in everyday commerce, and fundamental guarantors of fairness and competence in local government, had been maintained complete and open to the public since Colonial times. The fix engineered by the legislature was unnecessarily incomplete and complex in order to mollify public employee unions.
Now the Freedom of Information Commission is appealing a recent Appellate Court decision that sharply limits the amount of information about criminal arrests that can be obtained through the Freedom of Information Act. The case has its roots all the way back in 1983. In that year, in response to media concerns that some police departments weren’t releasing traditional “blotter” information, the legislature adopted a provision requiring release of the name and address of the person arrested, the date, time, and place of the arrest, and the charge. However, a decade later the state Supreme Court interpreted the 1983 amendment as limiting the information that had to be disclosed, saying it overrode more general provisions of the Freedom of Information Act. The FOI law says documents must be disclosed unless they contain information covered by one of eight so-called “law enforcement exemptions.” Those include:
- The identity of informants or witnesses whose safety would be endangered
- Signed statements of witnesses
- Information to be used in a prospective law enforcement action if prejudicial to such action
- Investigatory techniques not otherwise known to the general public
- Arrest records of a juvenile
- The name and address of the victim of a sexual assault
- Uncorroborated allegations
The next year, the legislature responded by requiring the release not only of basic “blotter” information, but also of a report or news release on each arrest. Now the Appellate Court has held that these still-narrow requirements preempt the broader ones is the FOI Act.
CCFOI will also oppose efforts to discourage public access by imposing charges for access or increasing charges for copying public records. Public records belong to the people. We hire public servants to be the custodians of those records. We pay their salaries, and we may be charged when we ask for copies of records. And now comes a plan to charge for the mere right to read the records. There should be no fees for access to our own public records. State and municipal government also should be much more proactive in posting records online so that anyone can access them at any time.
CCFOI also will work to preserve and increase the autonomy of the state Freedom of Information Commission. All the state watchdog agencies were lumped into an Office of Government Accountability during Gov. Malloy’s first year in office. During the last session, the administrator of the OGA, whose role was to be limited to supervising “back-office functions,” made a bid for more centralized power for himself, which would further dilute the independence of the Freedom of Information Commission and other watchdog agencies. This power grab was blocked after an outcry by the watchdogs and their advocates, but the administrator is now claiming the watchdog agencies do not have the authority to supervise him or set expectations for him. By their very nature, agencies that enforce government ethics, election standards and public access must remain vigorously independent from a bureaucrat beholden to the governor’s office.
The preamble to the Freedom of Information Act encapsulated the intent of the legislature when it passed the new law 37 years ago:
“The legislature finds and declares that secrecy in government is inherently inconsistent with a true democracy, that the people have a right to be fully informed of the action taken by public agencies in order that they may retain control over the instruments they have created; that the people do not yield their sovereignty to the agencies which serve them; that the people in delegating authority do not give their public servants the right to decide what is good for them to know . . .”
The state’s leaders now rarely express such a passion for the people’s right to know. We at CCFOI urge them to recommit themselves to that right.
James H. Smith
G. Claude Albert