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• What is FOI and why is it important
Mar 24, 2008
Just what is “Freedom of Information” (FOI) and why is it important?
“Freedom of Information is one of the foundations of our government... It’s about keeping the populous informed,” said Tom Hennick, public education officer for the Freedom of Information Commission, and a frequent speaker on the topic. “The more people know, the better off everyone — including the people in office — will be.”
Mr. Hennick has seen the FOI Act at work from many different angles. Not only does he field FOI complaints and questions nearly every day, he is also a member of the school board in his hometown, and thus is subject to its rules and regulations; he is a former newspaper reporter, who often made use of FOI to get information; and his father, Frederick Hennick, served on the FOI Commission (as chairman for a number of years) from 1989-1993, and from 1995-2001.
FOI is “all about access,” Mr. Hennick said: Access to public meetings and public records. The act itself was the brainchild of former Connecticut Governor Ella T. Grasso after the Watergate scandal rocked the country. Thirty years later, the FOI Commission is on track to hear upwards of 600 FOI complaints this year.
It’s complicated legislation, Mr. Hennick said, which often means answers to FOI questions are not cut and dry. “There’s a lot of interpretation involved.”
There are, however, some basics tenets of FOI. The two main ones are that all public meetings must be open and accessible to all members of the public, and all public documents must be available to any member of the public, no questions asked.
Meetings
The FOI Act defines a meeting as “any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multi-member public agency, and any communication by or to a quorum of a multi-member 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.”
This wording would seem to indicate that if a quorum is not present, there is no meeting, but that’s not quite true, Mr. Hennick said. Two separate rulings seem to indicate two contradictory decisions. One indicates if there is not a quorum (voting majority), it is not considered a meeting; another indicates if any members of a public agency (boards, commissions, committees, etc.) are meeting to do the board or commission’s work, that is considered a meeting.
Mr. Hennick said in general, the FOI Commission recommends agencies “err on the side of caution” by considering any gathering of members to be a meeting, and thus subject to all FOI rules.
The only time that does not hold true, he continued, is in the case of a caucus (a meeting of members who are of the same party), a chance gathering (i.e. members happen to show up at the grocery store or a football game), a social gathering (holiday party, 4th of July picnic, etc.), or collective bargaining or contract strategy planning sessions.
Three kinds of meetings
Under FOI legislation, there are three kinds of meetings: Regular, special, and emergency.
A list of regular meetings must be filed with the town clerk by the end of each January for the upcoming year. Agendas for these must be available no later than 24 hours beforehand, but agenda items may be added during the meeting if members vote to do so.
Agencies may call special meetings when needed. Notice of these meetings must be posted no later than 24 hours prior to the meeting, and the posting must state what the purpose of the meeting is. Members are not allowed to discuss anything at a special meeting that is not on the posted notice, and they may not add agenda items at the meeting.
An emergency meeting may be held without public notice, but “it must be a real, true emergency,” such as a natural disaster, or an immediate public safety issue, Mr. Hennick said. “Last minute changes to a budget request don’t count,” he said.
Minutes from an emergency meeting that reflect the nature of the emergency, what was discussed, and what was decided must be available within 72 hours. For regular and special meetings, minutes must be available within seven business days.
While FOI guarantees the public the right to attend all public meetings, it does not guarantee them the right to speak or participate during them, Mr. Hennick pointed out.
Executive sessions
Agencies do have the right to hold “executive sessions,” which are not open to the public, during public meetings. Members must vote during the meeting (by a two-thirds majority) to hold an executive session, and they must specify the reason for it.
Executive sessions are only allowed for five specific reasons:
• Personnel. Officials must state publicly who is to be discussed during executive session, and that person must be given advanced (at least 24 hours) meaningful notice he will be discussed. The person then has the right to demand the discussion take place in open, rather than executive, session. The person being discussed may be included in an executive session discussion if the board so chooses, but he does not have the right to be included.
• Pending claims and litigation. Officials may discuss negotiating strategies or consideration of an action to file a lawsuit during executive session.
• Security.
• Sale, lease or purchase of property. This may discussed in executive session only if the discussion might negatively impact negotiations.
• Discussion of records deemed exempt from disclosure (i.e. student records).
All votes must be taken during public sessions, and must be recorded within 48 hours.
E-mail
The question of whether communication via e-mail constitutes a “meeting” is one the FOI Commission is grappling with more and more, Mr. Hennick said.
“I would suggest that (e-mail communication) is not a meeting unless there is a sense members are talking back and forth,” Mr. Hennick said. However, he added, the state of Washington ruled recently that “an active exchange of information and opinions, which suggests deliberation is intentional,” does constitute a meeting.
While they may not be meetings, if a member of a public agency creates an e-mail relating to the agency’s business, he or she is creating a public document, Mr. Hennick pointed out, and, under FOI, any member of the public has the right to see that document.
FOI says every record held by a public agency — with a few exemptions, exceptions, and exclusions — should be available to the public. FOI defines a public record or document as “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.” Records include minutes and most inter-agency and intra-agency memoranda or letters.
“Everyone has the same right to public records. They are literally the public’s records,” Mr. Hennick said.
Any request for public information must be answered with no questions asked: Public officials are not supposed to ask for the requester’s name, why he or she wants the information, etc. Requests made in writing must be responded to within four business days and are supposed to be fulfilled “promptly.” The term “promptly” can be interpreted differently depending on the request, Mr. Hennick said.
The public has the right to inspect public records during regular office hours, but copies, print-outs, or transcripts should be requested in writing. State agencies may charge up to 25 cents per page; non-state agencies may charge up to 50 cents per page.
Exempt records
There are some records, or portions of records, that are exempt from FOI regulations. These include, (but are not limited to):
• Student records
• Department of Children and Families records
• Home addresses of law enforcement officers
• Preliminary drafts or notes (but in the eyes of the FOI, Mr. Hennick said, once “preliminary” information is discussed at a public meeting, it is no longer exempt as a draft.)
• Personnel or medical files, the disclosure of which would result in an invasion of personal privacy (to be considered an invasion of personal privacy, the records must be considered “highly offensive” and not be of public interest, Mr. Hennick said).
• The identity of police informants
• Information in a police record if it would compromise an ongoing investigation, reveal investigation techniques, or information about a juvenile
• Information obtained illegally
• Trade secrets
FOI complaints
The FOI Act guarantees everyone the right to appeal to the FOI Commission the denial of any portion of the act. The most common FOI complaints center around illegal meetings or postings, or denial of requested information, Mr. Hennick said.
Complaints must be filed within 30 days of the alleged violation. The FOI Commission then reviews the complaint, dockets it, and assigns an ombudsman to try to mediate the problem. If mediation fails, the matter then goes to a hearing.
A hearing officer hears both sides and writes a report. The report, including the hearing officer’s recommendations, go to the FOI Commission, which rules on the case.
The commission does have some enforcement powers. It can, for example, void a meeting and any decisions made during it. It can fine an agency. It can also require members of an agency to attend FOI workshops.
For more information on FOI, visit state.ct.us/foi or call (toll free) 866-374-3617.
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