The Freedom of Information Act And Its Exceptions, 061821 KYWC, 91 CBJ 350

• Author: By Martin B. Burke
• Position: CLAIM 91 CBJ 350

THE FREEDOM OF INFORMATION ACT AND ITS EXCEPTIONS

CLAIM NO. 91 CBJ 350

Connecticut Bar Journal

June 18, 2021

By Martin B. Burke ^[*]

The Freedom of Information Act expresses a strong legislative policy in favor of the open conduct of government and free public access to government records.

The legislature finds and declares 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 and that it is the intent of this law that actions taken by public agencies be taken openly and their deliberations be conducted openly and that the records of all public agencies be open to the public except in those instances where superior public interest requires confidentiality.¹

As to the genesis of the Connecticut Freedom of Information Act, it cannot be emphasized too strongly that the political climate in 1975, in the aftermath of the Vietnam War and Watergate, was such that people were fed up with furtive government. The Watergate scandal set in motion a series of negative changes in Washington resulting in a loss of faith in government and politicians. This mor-phed into the party in power operating without any involvement from the opposite party, making it difficult to function as a nation. Secondly, there was a slide into continuing partisan investigations.^[2]The time was ripe for "good-government" proposals.

Our Freedom of Information Act was enacted in 1975. It built upon statutes enacted as far back as 1957. The first of these, An Act Concerning Public Records,³ declared that all state and municipal records shall be public and may be copied or inspected unless they would adversely affect th public security or financial interests of the state or municipality or if denial is necessary to provide reasonable protection to the reputation or character of the person. It also provided for a de novo appeal. A later act⁴ added a repository for such records and a third⁵ created a limited set of exemptions, as well as setting limitation on public meetings, requiring the adoption of a yearly schedule of meetings, and making provision for special and emergency meetings. Finally, a fourth^[6] created records of investigations of tenant houses.

The 1975 Act went far beyond these provisions in requiring disclosure of public records and open meetings. The key difference was the establishment of the Freedom of Information Commission, an administrative agency open to anyone aggrieved by a denial of the access mandated by the Act.

From the initial draft of the Act, interested parties have sought to carve out exemptions to public records and open meetings. Initially State agencies, concerned with appraisals, sought an exemption from site selection discussions. Others wished discussions of employment, evaluation and dismissal of public employees to be exempt and, of course, discussions of pending claims and litigation needed to be secret for fear of educating the governments' opponents. In addition to matters deemed appropriate for executive sessions, the exempt records section of the act proved fertile ground for staking out what are now some 28 exemptions, not to mention other untold number of exemptions lurking in the General Statutes and United States Code.⁷

This article is about three kinds of public record exemptions. First, there are exceptions within the text of the statute itself, now Section l-210(b) of the General Statutes. Upon passage in 1975, the Freedom of Information Act exempted ten categories of records from disclosure, and authorized closed executive sessions for five reasons. Now there are 28 exceptions.⁸ The recent, Section l-210(b)(27) exception, concerning visual images depicting the victim of a homicide, is a result of the Newtown tragedy. Similarly, Section l-210(b)(28) relates to documents of claims for failing foundations. Thus, some recent serious occurrences are excluded for serious protective purposes.

Second, there have been countless legislative attempts to weaken the Freedom of Information Act by addition or deletion. These must be contrasted with its purpose - free public access to government records, in light of an "overarching policy" favoring the disclosure of public records.⁹

For example, House Bill 5501 proposed to amend Sections 1-200(6) and 1-231 of the Act to eliminate the requirement that a public agency may only convene in executive session for one of the five explicitly permitted purposes before it receives oral testimony or opinion from its attorney. If the bill had passed, it would have allowed multimember public agencies to discuss with their attorneys any legal matter behind closed doors, resulting in significantly less transparency in government operations.¹⁰ Another proposed to authorize municipalities to charge additional fees for public records requested for "commercial purposes."^[11]Others were completely unnecessary. For example, House Bill 6603 would have added an exemption from disclosure for any communication privileged by the marital relationship, clergy-penitent relationship, doctor-patient relationship, therapist-patient relationship or any other privilege established by the common or state law. But statutory protection for these privileged communications already fall within the "except as otherwise provided" language of the Act.

The Commission opposed a portion of Senate Bill 230,¹²which excluded a custodial statement as a public record. It did not oppose stated purpose of the bill - to improve the reliability of confessions by providing that statements made by a person during a custodial interrogation at a place of detention are presumed inadmissible unless the custodial interrogation is electronically recorded. The Commission did object to the bill's provisions excluding the recording of statements made by a person during a custodial interrogation from disclosure under the FOI Act.

A final example of an attempt to erode the Act in the 2010 Regular Session was House Bill 5344, An Act Concerning the Nondisclosure of Information Regarding Persons Arrested for Domestic Violence. The Commission testified in opposition that, if passed, the bill would have severely eroded the public right to access law enforcement records by excluding from public scrutiny a broad category of criminal records without giving the victims of crime the sense of privacy they seek; and that the bill ignored the fact that there are protections in place for victims when to comes to criminal records.

All these failed bills illustrate private and public attempts to withhold governmental information from the public and the mandate "that the records of all public agencies be open to the public except in those instances where superior public interest requires confidentiality."^[13] Some of the proposals, such as the Newtown addition are grounded in common sense exclusions from public records. Others, most of which failed passage, were merely at the behest of special interests for their own limited purposes, adding an incursion into the original intent of the Act, which "is to make every public record and every public meeting open to the public at all times with certain specified exclusions"¹⁴

However, the most important purpose of this article, and perhaps the real "sleeper" in understanding exceptions to public records, is contained in the first eleven words of the opening sentence of Section 1-210(a) which reads:

Except as otherwise provided by any Federal Law or State Statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212.¹⁵

There are hundreds of these.¹⁶

I. EXCEPTIONS WITHIN THE ACT ITSELF

Then and now, the statute excepts specified records from its mandate of public availability. At the time of its adoption, there were ten exceptions. As of this writing, there are twenty-eight.

The original exceptions¹⁷ were:

(1) Preliminary drafts or notes.^[18]

(2) Records of law enforcement agencies not otherwise available to the public and compiled in connection with the detection or investigation of crime.^[19]

(3)Records pertaining to pending claims and litigation.^[20]This exception was later broadened by amending it to "pending claims or pending litigation".^[21]

(4) Trade secrets.^[22]

(5) Test questions, scoring keys and other examination data used to administer a licensing exam.²³

(6) The contents of real estate appraisals and the like, made for or by an agency in connection with the acquisition of property.^[24]

(7) Statements of an applicant's personal worth or personal financial data required by a licensing agency.^[25]

(8) Records, reports and statement of strategy or negotiations with respect to collective bargaining.^[26]

(9) Records, tax returns, reports and statements exempted by federal law or state statutes.^[27]

(10) Communications privileged by the attorney-client relationship.^[28]

Over the past four decades, the number of exceptions within the Act itself has nearly tripled. The ninth and tenth of the original exceptions were combined into one, and nineteen new ones have been added:

The exception for personnel and medical files and similar files, if disclosure would constitute an invasion of personal privacy, was enacted in 1977^[29] and placed in second position with the subsequent exceptions renumbered accordingly. The exception protecting the names and...