FOI 101 A Crash Course in the FOI Act

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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). - PowerPoint PPT Presentation

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FOI 101 A Crash Course in the FOI Act

FOI 101 A Crash Course in the FOI ActPresented byTracie C. BrownPrincipal Attorney Freedom of Information CommissionRecords ProvisionsMeetings ProvisionsThe FOI CommissionQ&AFOI 101 Crash Course Road MapPublic RecordsAny 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 1-218Whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

Section 1-200(5)Section 1-210(a)All records maintained or kept on file by any public agencyWhether or not such records are required by any law or by any rule or regulationExcept where federal law or state statute provides otherwise.Public RecordsThe 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 Section 1-210(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.Section 1-212(a)Without undue delayTake into account the agencys workloadFOI requests are a part of the agencys duties and should be given no greater or lesser priority simply because it is an FOI requestTake into account the requesters time requirements Take into account size and difficulty of the request

Public RecordsPromptnessPUBLIC RECORDS GENERAL RULESRight to inspect records promptly during regular office or business hoursRight to receive a copy promptly upon requestNo duty to conduct researchNo duty to create records that do not already existElectronic scanning of records now recognized by statute

PUBLIC RECORDS EXCEPTIONS, EXEMPTIONS & EXCLUSIONSExceptions 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)

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

PUBLIC RECORDS: EXCEPTIONS, EXEMPTIONS & EXCLUSIONSExclusions are mandatoryTheyre 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)

PUBLIC RECORDS: EXCEPTIONS, EXEMPTIONS & EXCLUSIONSReturn to written comments.12State Agencies no more than 25 cents per pageAll other public agencies no more than 50 cents per pageIf 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)

PUBLIC RECORDS:COST OF COPIESComputer-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 madeExcept 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

PUBLIC RECORDS:COST OF COPIESContested CasesRobert H. Boone and Journal Inquirer v. Metropolitan District Commission Docket #FIC 2000-137Contested CasesFACTS: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 MDCs 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

Contest CasesFACTS 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.

Contested CasesWhat 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

Contested CasesMDCs 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

Contested CasesMDCs 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 1-206Contested CasesA CLOSER LOOK AT 1-214

Refer to your copy of the FOI ActContested CasesKaren Perkins v. FOICThe 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. Contested CasesKaren Perkins v. FOICIn 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.

Contested CasesWhat do you think?Contested CaseDan Levine v. Public Information Officer, Police Department, City of Hartford Docket 2004-092

Contested CasesFACTS: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.

Contested CasesFACTS 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 officers home.

The officer had not reviewed the file before he objected to the disclosure.

Contested CasesWhat 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

Contested CasesKaren Perkins v. FOICIn 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.

Contested Cases30Given 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?

Contested CaseUncorroborated Allegations1-210(b)(3)(G) provides in relevant part thatNothing 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 Contested CasesDoes the exemption apply?Contested CasesAny questions?

Q&APractice SkitPublic MeetingsDefinition of Public MeetingAny hearing of a public agencyOther proceedings of a public agencyAny convening or assembly of a quorum of a multimember public agency andAny 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

Public MeetingsNon-meeting MeetingsExclusions 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

Public Meetings1-225(a)

The meetings of all public agencies, except executive sessions as defined in C.G.S. 1-200(6) shall be open to the publicPublic MeetingsEXECUTIVE 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.Public MeetingsEXECUTIVE SESSIONPermitted 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); and5) discussions that would disclose records that are exempt from disclosure.

Public MeetingsThe FOI Act Recognizes3 Types of MeetingsRegular.Special.Emergency (or emergency special).

(Conn. Gen. Stat. sec. 1-225(b) and (c))

Public Meetings* Available with Secy Of State (state) or Town Clerk and in place of business. Also, must be posted on agency website.** Available with Secy 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.NOTICE OF MEETINGS5/24/201243TypeNoticeAgenda/Notice ContentsAdding to Agenda/ NoticeFiling Record of VotesFiling MinutesRegularFile yearly schedule with Secy Of State (state) or Town Clerk (municipal) by Jan. 31st.**Agenda available at least 24hrs. before meeting.**Agenda items may be added by 2/3 vote of those members present and voting.Within 48 hrs. after meeting (if minutes not available within 48 hours).Within 7 calendar days after meeting.***SpecialAt least 24 hrs. before meeting, file at Secy Of State (state) or Town Clerk (municipal).*At least 24 hrs. before meeting. Time, place and business must be included in notice.*Not permittedWithin 48 hrs. after meeting (if minutes not available within 48 hours).

Within 7 business days after meeting.***EmergencyNone required if emergency is justified.None required if emergency is justified.Only emergency matters may be considered. Within 48 hrs. after meeting (if minutes not available within 48 hours).Within 72 hrs. after meeting. Must state reason for emergency.***43Refer back to written notes.Contested CasesRick Guinness and the New Britain Heraldv. Board of Finance, City of New BritainDocket #FIC 2008-164

Contested CasesFACTSPursuant to New Britains 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 FinanceThere 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.Contested CasesWhat 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.Contested CasesWas there a meeting?

We must ask was there one of the following:A hearing or other proceedingAny 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.Contested CasesSupreme Courtthe 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).Contested CasesSupreme 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. Contested CasesWas there a meeting under the FOI Act?Contested CasesWhat about the notice and the minutes?

See cheat sheet.Contested CasesMarlin James Lively v. Mary Moran, Chairman, Police Commission, Town of Trumbull; John Riordan; James McNamara; Lino Constantini; David Wilson, as members, Police Commission, Town of Trumbull; and Police Commission, Town of TrumbullDocket #FIC 2002-008Contested CasesFactsThe Mr. Lively and the Police Commission were parties in a lawsuit which was pending at all times relevant to the complaint.

The Police Commission held a regular meeting December 21, 2001 which Mr. Lively and his attorney attended.

Prior to the meeting, Mr. Lively was verbally informed that his job performance would be discussed in executive session and he did not object at that time.

When the executive session was called, the complainant did not object to the session.

Contested CasesFacts cont.The Police Commission discussed the lawsuit and the complainants job performance in executive session.

The Police Commission voted to place the Mr. Lively on administrative leave.

The minutes of the meeting were made available six days after the meeting.

The minutes did not record the votes to convene in the executive sessions.

Contested CasesWhat right was allegedly violated?

1-225(a)T...

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