I recently obtained an internal email in which a lawyer for a public agency laid out the agency’s strategy for responding to a request for records under the Freedom of Information Act.
Step One was identifying the records the agency was willing to release.
Step Two was identifying the records the agency had no intention of releasing.
And then Step Three, almost as an afterthought, was determining whether there was actually an exception under the Freedom of Information Act that would provide a legal basis for keeping the withheld documents secret from the public.
“As we discussed we can always withhold a document even if there is no exception,” the lawyer wrote, with the understanding that the agency might have to concoct a justification for the illegal act if the requester was savvy enough to pursue an appeal to the Freedom of Information Commission.
It wasn’t the first such email I had been made privy to, and it reminded me of the need for vigilance in Freedom of Information matters and the importance of constantly reminding the public servants who work for us that they do, in fact, work for us. They’re paid by us, they’re sworn to serve us. And with rare exceptions, all of the paperwork and data they produce and collect while on our payroll belongs to us, and should be provided to us without a fight.
So as the Legislature gets down to business this week, here’s one transparency advocate’s wish list, for any lawmakers willing to champion the not-so-radical concept that the people’s business really is the people’s business.
1. Open up public school teacher evaluations
As noted previously in this space, the legislature was hoodwinked 30 years ago into throwing a cloak of secrecy over “records of teacher performance and evaluation,” and inexplicably defined the term “teacher” to cover every school professional except the superintendent. Among those employed by the public, educators are the only class of workers whose evaluations are exempt from public scrutiny – even as they are the perhaps the public servants with the most critical jobs. That’s not good public policy.
2. Open up professors’ evaluations, too
As if it weren’t troubling enough that teacher evaluations are off-limits, the legislature added to the injury five years later by extending the secrecy to evaluations of publicly employed professors at UConn and the state university system. Worse still, the legislature was perhaps napping in 1997 when they signed off on a union contract for those who teach in the state university system that included this language: “The entire contents of personnel files shall be considered private and may not be opened to any outside scrutiny except when ordered by a court of law.” (It’s tempting to adopt the stance that it is not “outside scrutiny” when a member of the public seeks to review personnel records for an employee of the public – but that’s not likely to fly.) This back-door exemption to the Freedom of Information Act has carried the force of law since the legislature tacitly approved it 18 years ago. It should be written out of the next collective-bargaining agreement.
3. Shine some light on the UConn Foundation
Last year a bill that would have subjected the UConn Foundation to the provisions of the Freedom of Information Act went absolutely nowhere. Try again. The Foundation is paid with University funds to perform a public function. The public is entitled to more information about how it operates.
4. Restrict the use of private email accounts for public business
It is too easy for public officials to play cat-and-mouse with public-access rules by conducting business through gmail and other private email servers. The state should either require the use of official email accounts or set clear rules on the use of alternatives, including disclosure of the accounts and assurances that their archiving policies comply with the state’s record-retention laws.
5. Clarify the law on arrest records
Reporters, police officers, lawyers and judges have spent countless hours trying to make sense of the imprecise language of Connecticut General Statutes section 1-215, which mandates the release of certain information after an arrest. The Freedom of Information Commission maintains that statute sets a floor and represents that information that must be released in every case – with additional information subject to the other provisions of the Freedom of Information Act. The state police – and the state Supreme Court after a lengthy deconstruction of the statute – believe that the statute represents the maximum that police agencies are required to release. But no one know for sure. Lawmakers: Your predecessors made this mess. Fix it.
6. Undo the Martin Gould decision
With little fanfare last month, the state Supreme Court ruled 4-3 that arbitration panels established under the Teacher Negotiation Act are not public agencies and therefore not subject to the Freedom of Information. The lengthy ruling, which centered in significant measure on the definition of the words “in” and “of,” led to a stinging dissent by Justice Andrew J. McDonald. “Today’s majority opinion substantially frustrates the clear legislative policy requiring transparency in the operations of government that is contained in the Freedom of Information Act,” he wrote. “In doing so, the majority has undermined the integrity of this court’s previous construction of the FOIA and has thwarted the goal of open government.”
All parties agree that the statute at issue, C.G.S. 10-153f, is ambiguous. So legislators: Fix that, too.
7 Speed up the FOI appeal process
The concept that justice delayed is justice denied is a sentiment not unfamiliar to those who pursue an appeal to the Freedom of Information Commission. The Commission cranked out formal rulings last year at a rate of about one every work day. But demand for their judgment remains strong and complainants frequently wait eight or more months for a hearing. For cases with broad and significant public interest, that’s too long. Transparency in government is a pillar of democracy, and if the Commission needs more resources, they should be provided. Alternatively, the Commission should make greater use of its authority to expedite hearings in cases – yes, including those typically brought by the media – that are neither personal nor commercial in nature, but clearly involve document requests made in the public interest.
8. Require public officials to take FOI laws seriously.
The Commission’s heavy workload would be lightened, of course, if more public officials knew and followed the law. Some jurisdictions around the country have laws specifically mandating that public officials study open-records laws. There are transparency advocates who belittle those laws as wishful thinking, but maybe they’re not such a bad idea, if only to send the message that FOI laws matter. At the Courant, we spend an inordinate amount of time sparring with public officials – even public officials whose specific job is to comply with transparency laws – who make uninformed and erroneous claims about the sorts of documents an agency can legally withhold from the public, or the fees they are permitted by law to charge for those records, or the rules for conducting the public’s business in secret.
If nothing else, it’d be amusing to see who might line up to oppose a bill that would expressly require public officials to read and understand their obligations under the Freedom of Information Act. Before the November election, the Connecticut Council on Freedom of Information asked legislative candidates to sign a pledge supporting transparency laws. Most were defeated. But 11 were elected. So: Any takers?