By Mitchell W. Pearlman
With eroded powers and under continuing attack, Connecticut’s first-of-a-kind Freedom of Information Act turns 40 on Thursday.
After being involved in the fight for government transparency and accountability since 1975, I am often asked what are the most important issues facing those working to keep the government and its information open to the public. Unfortunately, many of the most critical issues involve trying to undo damage to the law done by our politicians and courts.
It is one thing to pass a freedom of information law. It is another thing, however, to implement it, and implement it effectively. The uniqueness of Connecticut’s law was that it created an independent government commission to administer and enforce the law. For the most part, the commission has done its job well and is a highly regarded government agency.
Unfortunately, however, in 2011, Gov. Dannel P. Malloy, apparently to exercise political control over the commission and other independent “watchdog” agencies, created a new level of bureaucracy over them. That bureaucracy, ironically — or perhaps cynically — is called the Office of Governmental Accountability. It has hamstrung the Freedom of Information Commission with incompetent and self-aggrandizing administrators who have made it virtually impossible for the commission to effectively deal with its enormous workload on behalf of the people of Connecticut. So, the Office of Government Accountability has made government in Connecticut less accountable.
Since 1980, five years after the Freedom of Information Act was established, the legislature and the courts have led a counterattack against the commission’s broad interpretation of that law in furtherance of public disclosure. Together these branches of government have created, and continue to create, numerous exemptions and loopholes in the law. Among other things, they have permitted government agencies to virtually hide behind a veil of secrecy and created laws governing situations in which the public interest in disclosure clearly outweighs some perceived interest in personal privacy.
These exceptions and loopholes have become so absurd that recently our Supreme Court ruled that the state Department of Mental Health and Addiction Services may withhold from a researcher the records of Amy Archer-Gilligan — the historical figure who inspired the movie and play called “Arsenic and Old Lace.” Archer-Gilligan, who was suspected of killing dozens of people at her nursing home a century ago, died in 1962. She has no family left, thus there is no privacy interest at stake. She was committed to a state facility — the Connecticut General Hospital for the Insane, now the Connecticut Valley Hospital — from 1924 to the day she died. Under federal law, medical and psychiatric records are available for historical purposes 50 years after a patient’s death. Not so in our fair state.
No one could foresee many of the current public policy issues raised by the keeping of electronic records when our freedom of information laws were first enacted in the last century. So the commission has had to figure out how to integrate this new technology into laws designed for paper records. The retention, archiving and destruction of email and text messages remain unresolved issues to this day. Just reading the many news reports about government officials using personal email servers, text messaging and cellphones provides a view of how those in power attempt to bypass our public records laws.
Of course, the new century has brought other challenges as well. Chief among these is the obsession with national security. Almost immediately after the attacks on Sept. 11, 2001, governments at all levels began to shut down access to information. Important public health, environmental and safety information on government websites was removed. Obviously, a more appropriate balance between legitimate security concerns and the public’s right to know has to be established.
The concept of an open and accountable government is essential in any democracy. Unfortunately, the trend over much of the past 40 years has been to close down much critical government information that had been open to public scrutiny with the passage of freedom of information laws. Unless this trend is reversed, I fear that our democracy will continue to wither, if not die.
Mitchell Pearlman is the former executive director of the Connecticut Freedom of Information Commission and is a lecturer in law and journalism at the University of Connecticut. To mark the 40th anniversary of Connecticut’s freedom of information law, First Amendment litigator and educator Floyd Abrams will receive the Walter Cronkite Freedom of Information Award on 0ct. 22. For information, go to ctfog.org/cronkite-awards-3.