By Paul Choiniere
The Connecticut General Assembly needs to get to work in 2015 to repair a state Freedom of Information Act that shows too much deference to government institutions at the expense of citizens.
Last week the Connecticut Supreme Court ruled unanimously that the FOI Act only requires police to provide minimal information about an arrest – “name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested.”
For 20 years involving multiple decisions, the FOI Commission had interpreted the Act far differently, requiring police, if requested, to release reports and other records concerning arrests unless they could make the case that release of the information would interfere with an investigation or was exempt under other provisions of the FOI Act.
However, despite this history, the Supreme Court found no such requirement in the FOI law as written. It is now up to the legislature to fix the FOI Act, by making it clear police reports surrounding arrests are public documents unless police can make the case for an exemption, such as interfering with an investigation. In a free society, police should not be withholding details about why they arrest and incarcerate citizens.
However, this is not the only part of the law that needs fixing. A provision in the FOI Act inserted at the behest of organized labor has led to a “just say no” attitude among many town attorneys and municipal officials when it comes to accessing employee records. This leads to long delays in accessing information that is indisputably public.
The law states that when a public agency receives a request to inspect “records contained in any of its employees’ personnel or medical files and similar files and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency shall immediately notify” the employee or employees.
It goes on to say that if the employee objects, “the agency shall not disclose the requested records unless ordered … by the Freedom of Information Commission,” a process that can take many months, stretching in some cases to a year or more.
While this employee protection provision may appear reasonable, town attorneys wrongly interpret it to require them to notify employees in every instance when a record is requested and give them the chance to object, even if there is no reasonable expectation of an invasion of privacy. Not surprisingly, in most every instance the employee does object to release, delaying access to documents.
In a case in Stonington, The Day sought access to documents involving the disciplinary actions taken against a Stonington Highway Department employee. Though there was nothing remotely private involved – the discipline involved the actions of a public employee in his public job – the town administration gave the worker his chance to object, and he did, delaying release of documents for a year.
It turned out to be a case of workplace violence. The employee had threated a fellow worker, even brandishing a knife. The public’s interest in knowing what happened and how town officials handled it was clear, yet disclosure of the facts was delayed.
The legislature needs to tighten the law to make clear that public employee records are presumed open, unless medical information or other private matters are involved. This is very seldom the case when the records involve the actions of public employees. As things now stand, government employees have too much power to block public access to records.
Finally, I would urge a change in the law to provide for expedited decisions when a document is obviously public. Grievances filed by public unions are, for example, public records. It is settled law. However, a public official can stall release of these public records by simply saying “no,” forcing a prolonged evidentiary gathering and hearing process by the FOI Commission, which faces backlogs.
When facts are not in dispute and records are unarguably public, the FOI Commission needs a mechanism to act quickly in ordering disclosure. Current provisions are inadequate in that regard.
Connecticut was a leader in passing its open-government law, but layers of exemptions to the law have weakened it. It is time for Connecticut to start leading again by giving its FOI law more teeth.
Paul Choiniere is the editorial page editor.