A new state House bill could change the current Freedom of Information process for those seeking access to public records from government agencies.
HB 5175, “an act concerning appeals under the Freedom of Information Act,” is described as a bill to “permit the Freedom of Information Commission to grant relief from vexatious requesters to public agencies.”
Read the testimony regarding the bill here.
Vexatious is defined as “denoting an action or the bringer of an action that is brought without sufficient grounds for winning, purely to cause annoyance to the defendant.”
Currently, the FOI act allows any individual to appeal the denial of his or her right to inspect or copy records or attend a public meeting. The new language in the bill allows the commission to charge someone filing an appeal for the second time in a calendar year $125 for that appeal.
In terms of a “vexatious” requester, a public agency can petition the commission for “relief” if it deems a requester is vexatious.
The grounds for being considered vexatious can include the number of requests, the scope of the requests, the nature or content of the requests, and/or a pattern of conduct that amounts to abuse of the right to access information under FOI.
Once that petition is made, the commission can either dismiss the petition, or hold a hearing on the petition after notifying both parties. If the petition is granted, the commission can allow a public agency not to comply with FOI requests from the “vexatious requester” for a period of time not to exceed one year.”
Darien has had extensive FOI discussions over the last two years.
The Board of Education voted to make the FOIA request log a public document in early fall.
This means that anyone can request and receive a log of those who made a FOIA request of the board, when, and what was requested, with all legally private information redacted.
The decision came on the heels of the news that a single person had cost the town nearly $100,000 in legal fees alone with more than two dozen FOIA requests. At this year’s budget approval, the board cut the legal services line of the budget by $75,000, anticipating that the number of FOIA requests would decrease this year.
Read the full text of the bill and its language here.
In August, the Board of Education had a lengthy discussion about the FOI process and costs.
In the 2014-15 school year, the district had six FOI requests. In the 2015-16 year, there were eight requests.
In the 2016-17 year, there was a significant increase to 33 requests. From the July 1 to late August, which was technically the start of the current school year, there were 13 requests; the schools had not opened yet. School attorney Tom Mooney said the costs of all these requests are something he was asked to review. He explained that it’s more than just legal costs, but the costs in terms of burdens on the staff.
Mooney also explained FERPA, the Family Educational Rights and Privacy Act, a federal law that imposes an obligation to maintain confidentiality of students.
“Whenever we get FOI requests, we have to keep in mind that under those exemptions is info under FERPA,” said Mooney. The district has the duty to maintain that confidentiality.
And then, the discussion became even more specific, as a single individual was pointed out.
In Darien, “Mr. Jay Hardison has made 24 separate requests for public records since last September,” Mooney said.
Mooney added that in a 15-day period, Hardison made four separate requests.
Testimony on the bill was varied. The FOI Commission supports the bill. The president of Connecticut’s Society of Professional Journalists opposes the $125 fee.
Daniel Klau, president of the Connecticut Council on Freedom of Information, said his council opposes HB 5175, and also objected to the filing fee.
“The bill would require every individual who files a complaint with the Freedom of Information Commission (FOIC) to pay a filing fee of $125 per complaint after the first complaint in a given year. CCFOI opposes the proposed bill because it would have a serious chilling effect on citizens exercising their fundamental right to access public records and meetings of public agencies,” he said.
Klau said a filing fee “will penalize the overwhelming majority of citizens who, when filing complaints, use the act as intended.”
“The filing fee is a hammer, when what is needed is a scalpel,” he said.
State Comptroller Kevin Lembo testified that “the very concept of placing financial barriers between citizens and government information is misguided and offensive.”
“A person’s ability to seek justice through the state Freedom of Information Commission should not be determined by their capacity to pay,” he said.
The Connecticut Conference of Municipalities said it supports the ability to provide relief to towns and municipalities from vexatious requests. However, it recommended language related to fees and mandatory mediation be removed, and that “the Committee approve HB 5175 with the limited scope of allowing the FOIC to identify and restrict for a limited time period requesters that it has determined to be vexatious.”
Janet Ainsworth of the Freedom of Information Commission sent testimony in support of the bill.
“It is clear to me from years of dealing with them that the requests are submitted for the purpose of harassing the agency. In fact, at least one person I know of was fined by the FOIC for such behavior. Another individual has been sending abusive emails to various government offices for years. He was nearly arrested at an FOIC hearing because of his disruptive behavior,” Ainsworth said.
State Rep. Adam Dunsby of the 135th District, which includes Easton (where Dunsby is also first selectman), Weston and Redding, testified that he supported the bill.
“The public has the right to access public documents and to observe the meetings of public agencies. However the public’s right to records must not be transformed into a right to harass and burden public officials,” he said.
Darien officials weigh in
Regarding the FOI bill, Darien First Selectman Jayme Stevenson said “there are clear abuses of the system at all levels of government and I understand that the abuses create operational and financial burdens.”
“I hope a balance can be struck that upholds the public’s right to information and egregious abuses of the FOI system. It would seem reasonable to assess certain fees for service while still providing access to information,” she said.
An email to the Government Administrations and Elections committee members who brought the bill forward asking for the bill’s status was not returned by press time. Emails to Sen. Bob Duff, the majority leader, Sen. Carlo Leone, and State Rep. William Tong were not returned by press time.
State Rep. Terrie Wood, who represents part of Darien and Norwalk, said she believes the current law governing FOI requests could use some modifying.
“It is critically important to find balance between maintaining transparency and accountability in state agencies, municipalities and those serving the public by finding a way to more thoroughly vet the requests from a few people who currently use the statute to abuse and harass state agencies, municipalities and those serving in elected office,” Wood said.
Board of Ed Chairman Tara Ochman said the Freedom of Information Act “is an important and vital part of our democracy, and it is important to safeguard.”
“Equally important is for citizens to recognize there is an inherent responsibly in utilizing the act and to do wisely and with great care,” Ochman said.
“I do not envy legislators as they try to find the balance between access and abuse, it is hard, thoughtful, cautious work, but; as with all things of great importance, it is worth the time and diligence however difficult the debate,” she said.
Board of Finance Chairman Jon Zagrodzky said “the proposed changes, including the $125 filing fee for the second and subsequent appeals made by a requester in a year (refundable if the appeal succeeds), seem reasonable and should help discourage frivolous filings.”
He added, however, that Ochman was right about the importance of the Freedom of Information Act. .
“We should monitor the impact of these changes, though. The Freedom of Information Act is an important tool for maintaining transparency in government,” he said.
“If we are to make changes to discourage abusers, we need to make sure that the rights of well-intentioned citizens are not compromised in the process,” Zagrodzky said.