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. Continue reading →
I began teaching a journalism class at Central Connecticut State University this semester, with the taxpayers and students’ families picking up the tab for my modest salary. At some point, I imagine the school will evaluate my performance, and when that happens, it will be the official policy of the state legislature that it’s none of the taxpayers’ business whether I’m doing a great job or a crummy job.
If you teach in a public school in Connecticut, from Kindergarten to a Ph.D. program, state law deems that records of your “performance and evaluation” are off-limits to the public that pays your salary. I was given a stark reminder of that today, just as transparency advocates are wrapping up “Sunshine Week,” a national campaign highlighting the importance of open government.
Today happened to be the day I was provided with a large number of documents I had requested from the University of Connecticut, which included the draft of a review of Robert Miller, the former UConn music professor now under the microscope for allegations of sexual misconduct that spanned decades.
The evaluation runs 28 pages – 19 of which have been blacked out completely, and the rest of which have no more than a sentence or two visible. There is a list of “Dr. Miller’s Strengths” and another of “Dr. Miller’s Weaknesses” – but they have been almost entirely blacked out. There is a section marked “Comments from the Faculty” – immediately followed by a page and a half of black boxes. Under “PERSONALITY ISSUES,” the report notes that neither the review committee members nor those interviewed are trained psychologists, but the rest of section, taking up nearly two pages, is completely redacted.
This isn’t the university getting overly exuberant with a magic marker; it’s just following the law.
As I’ve written before, a move to keep teacher evaluations secret began 30 years, resulting in the passage of a law titled “Nondisclosure of records of teacher performance and evaluation,” which made teacher evaluations in local public schools exempt from the state’s Freedom of Information Act. Legislators were persuaded that parents would use evaluations to shop for the best teachers and pressure schools to place their children accordingly – though every parent I’ve ever talked to already knows who the great teachers are in their schools.
And even while the bill was pitched as a way to prevent teacher-shopping, the final language covered all professional staff in a public K-12 school except the superintendent. Assistant superintendents, principals, librarians – all covered by the law putting their performance evaluations off limits.
Before long, that sort of secrecy started looking good to those in higher education. And in 1989, a similar statute was put on the books blocking public access to performance records for the faculty and professional staff at UConn, the state university system and the state’s technical colleges.
And that’s why the document below is mostly black boxes.
Transparency advocates would like to change that. I’ll start with my eval. If and when CCSU gauges my performance, I’ll be happy to send a copy to anyone interested in reading it.
Last fall, Gov. Dannel P. Malloy invited the public to chime in on state regulations that are “outdated, unnecessarily burdensome, insufficient or ineffective.” More than 2,000 comments came in to a special website.
And what was on people’s minds?
Guns. Specifically, handguns in state parks and forests.
Danbury State’s Attorney Stephen J. Sedensky III Wednesday formally abandoned his argument that state law gave him the authority to withhold recordings of 911 calls made during the Sandy Hook Elementary School shooting, ending a nearly yearlong battle that highlighted tensions between transparency and privacy.
The Freedom of Information Commission had ordered the tapes released, and they were made public a week ago after a judge ruled he would not keep them secret pending an appeal by Sedensky of the commission’s ruling. Although Sedensky could have pursued the legal arguments even after the tapes were released, he dropped the appeal Wednesday, submitting a one-page form to the court declaring that he was unilaterally withdrawing the suit.
After the Associated Press filed a Freedom of Information Act request for tapes of the 911 calls, Sedensky ordered Newtown police not to release them. Although such tapes are routinely provided, Sedensky argued to the Freedom of Information Commission that the tapes were legally exempt from disclosure because their release would harm a prospective law-enforcement action and because they contained confidential evidence of child abuse and were the equivalent of signed witness statements.
The FOI Commission unanimously rejected those arguments and Sedensky appealed to Superior Court, asking Judge Eliot D. Prescott to stay enforcement of the commission’s order to release the tapes while the appeal was pending. Prescott turned him down, declaring that parts of Sedensky’s argument “bordered on the frivolous” and amounted to a claim by the prosecutor that the tapes are exempt from disclosure “because ‘I say so.’ ”
The tapes became a raw battleground in the emotional aftermath of the mass shooting, with some family members of those killed urging that the recordings never be made public and some transparency advocates saying prolonged efforts to keep them secret had merely fed conspiracy theorists and exacerbated the families’ anxiety over their release.
Prescott wrote that media attention following release of the tapes would probably be “a searing reminder of the horror and pain of that awful day.” But he said access to the tapes would also allow the public to evaluate the response by police.
“Delaying the release of the audio recordings, particularly where the legal justification to keep them confidential is lacking, only serves to fuel speculation about and undermine confidence in our law enforcement officials,” he wrote.
The tapes revealed the terror inside the school in the moments after the shooting began and the steely resolve of several staff members as they alerted police. Officers arrived quickly, although five minutes passed before the first entered the building. Sedensky said that with initial reports of multiple shooters, the actions of the earliest responders was appropriate.
The old adage that watching laws being made is like watching sausage being made was on display Wednesday during a 2½-hour meeting of the state’s Task Force on Victim Privacy and the Public’s Right to Know, at which frustrated members found themselves struggling with parliamentary bureaucracy and entrenched disagreements.
Half-way through the meeting, after a lengthy and complicated series of motions and amendments, Quinnipiac University law professor William Dunlap tried to suggest a way to move toward a vote on a proposal by state Victims Advocate Garvin Ambrose.
“Once we dispose of the Storey amendment, then Ms. Mozdzer-Gil’s amendment is entirely in order, because it’s an amendment to your original motion, as amended to conform with Sen. Fasano’s proposal,” he said.
But by then, Ambrose had given up.
“I have a solution,” he said. “I’m going to take the entire issue off the table and just withdraw my motion completely so we can start fresh, because this is getting beyond ridiculous at this point.”
But it wasn’t quite so easy. Instead, the panel spent another two minutes discussing whether Ambrose could in fact unilaterally withdraw his motion or whether the full task force had to vote on whether or not the full task force could stop considering the issue.
The task force, which will make recommendations to the legislature, was created during the last legislative session, following the mass shooting at Sandy Hook Elementary School and fears that records related to victims and witnesses would be released publicly. The same legislation that created the task force also temporarily amended the state’s Freedom of Information Act to exclude from mandatory disclosure “the identity of minor witnesses” in records created by police during criminal investigations.
State Sen. Leonard Fasano, a member of the task force, said at an earlier meeting that that language was added at the request of Bridgeport lawmakers in response to the 1999 murder of Leroy “B.J.” Brown, an 8-year-old city boy who witnessed a shooting and was killed before he could testify.
The boy’s name came out as part of the criminal trial, not as a result of a Freedom of Information Act request, and the recent change in the law would have no impact on a similar scenario. But it has become something of a line in the sand between privacy advocates and transparency advocates on the task force.
Transparency advocates say existing law already allows police to withhold the names of witnesses of any age who might face intimidation or threats. Privacy advocates say minor witnesses and accusers deserve special protection and a presumption that their identities should be confidential, just as juvenile defendants are afforded special protections. During Wednesday’s meeting, those points were made over and over.
As the gathering neared the one hour and 45 minute mark, co-chairman Don DeCesare’s patience was wearing thin, as illustrated in the video below, from CT-N. DeCesare said the group was “bunkered in” and seemingly unable to move forward.
Forty-five minutes later, after a discussion of whether or not they had to take a vote on whether to take a vote, the deeply divided panel did in fact call the roll on a proposal to restrict access to the identify of witnesses under age 13 – but to make that information releasable once the witnesses turn 18.
The 17-member Task Force on Victim Privacy and the Public’s Right to Know is typically a cordial bunch, despite having strong voices at polar opposites on the issues. Garvin G. Ambrose, the state’s victim advocate, for example, evaluates victim privacy and media rights through a completely different lens than, say, James H. Smith, a former newspaper editor and now executive director of the Connecticut Council on Freedom of Information. And Chief Public Defender Susan O. Storey sits right next to Chief State’s Attorney Kevin T. Kane, leading to frequent side-by-side disagreements, but also to occasional friendly banter.
But despite the normally civil tone, the task force, created in response to the Sandy Hook shootings, “can be a pressure cooker,” Smith said. And that below-the-surface tension made a rare and dramatic appearance during a marathon hearing Wednesday, when a frustrated DebraLee Hovey, a task force member and state representative from Newtown, laid into a transparency advocate who suggested that civil laws might already address the sort of harmful behavior members of the committee were looking to curtail.
Rosanna Cavanagh, a lawyer and executive director of the New England First Amendment Coalition, told task force members that relatives of the Newtown victims had seemed to indicate through their attorney that they were primarily concerned about graphic details of the crime being misused by those on the fringe who were intent on causing pain to the families. She said those actions could run afoul of laws already on the books that punish the intentional infliction of emotional distress.
That earned a sharp rebuke from Hovey, who assailed Cavanagh’s perspective – and lawyers in general. You can view the exchange below, and watch the entire hearing on CT-N.com, the website of the Connecticut Network.
The task force was established by the legislature to “consider and make recommendations regarding the balance between victim privacy under the Freedom of Information Act and the public’s right to know.” Those recommendations are due Jan. 1.
Political provocateur Larry Ward made a huge splash last January with “Gun Appreciation Day,” a campaign that prompted rallies from coast to coast intended to counter legislative efforts to tighten gun control in the wake of the Sandy Hook Elementary School shooting a month earlier.
The boisterous rallies highlighted the deep cultural rift over firearms in America, with millions of citizens believing the Sandy Hook shooting tragically illustrated the danger of guns and millions more believing the shooting tragically illustrated the danger of gun control.
That cultural divide, which the Courant covered extensively in print and in collaboration with the PBS documentary series Frontline, is back on display as the anniversary of the Newtown massacre approaches. Larry Ward and a coalition of pro-gun groups are back, too. But this time, their instinct for the dramatic may have gotten the better of them.
Ward’s Washington public relations firm, Political Media, Inc., last week began promoting “Guns Save Lives Day,” which was slated for Dec. 14 – one year after Adam Lanza shot his way into Sandy Hook Elementary and killed 26.
“Guns Save Lives Day is on December 14, 2013, the Anniversary of Newtown,” a web site set up by Ward proclaimed. “We plan to honor these victims by doing everything within our power to prevent misguided gun control laws from leaving Americans defenseless or worse victims. Don’t be a victim, ARM YOURSELF.”
Groups on both sides of the gun-control battle have accused their opponents of politicizing the Sandy Hook shooting, and the plan for “events and activities in all 50 states” during Guns Save Lives Day prompted significant backlash, particularly within Newtown. “For this group to use our Sandy Hook tragedy as a springboard for political action is disrespectful to our community of Newtown and is of particularly insensitive timing,” Newtown First Selectwoman Pat Llodra said. “I respect their right to promote their beliefs regarding guns. I ask that they respect our community and not use us for their purposes.”
That sort of reaction apparently had the desired effect. Organizers of Guns Save Lives Day have now pushed the day off Dec. 14, and the web site was reworked to read: “Guns Save Lives Day is on December 15, 2013, Bill of Rights Day, the day after the Anniversary of Newtown.”
But for organizers, the message of the day remains the same.
“Americans are concerned about attempts to erode their gun ownership rights, and for good reason,” said Alan Gottlieb, president of the Second Amendment Foundation and chairman of the Citizens Committee for the Right to Keep and Bear Arms, which are both co-sponsors of the day. “Our mission with Guns Save Lives Day is to assure them our groups are working day and night to thwart government gun-grabbers at every opportunity. We are going to show America that there is a good side to guns.”
State prosecutors and transparency advocates will square off next week as the state Freedom of Information Commission considers a proposed order to release tapes of 911 calls made during the December shooting at Sandy Hook Elementary School in Newtown.
In advance of the Sept. 25 hearing, Danbury States Attorney Stephen J. Sedensky III has filed a brief saying the proposed order misinterprets state law and, if upheld, could be a boon to criminals trying to figure out what evidence investigators have collected.
Sedensky argues that the tapes are protected from disclosure by laws related to investigations of child abuse, and by exemptions to the state’s Freedom of Information Act covering records to be used in a future law-enforcement action. Kathleen K. Ross, a lawyer with the Freedom of Information Commission, rejected those arguments during a hearing in June.
The full commission typically upholds the decisions of its hearing officers, but Sedensky will have an opportunity next Wednesday to try to persuade them to reject Ross’s proposed order. Either way, the matter may not be settled for a while. Whoever loses next Wednesday can appeal the commission’s order to Superior Court.
Our full story on Sedensky’s legal brief is here. And the full document can be read below.
As we reported in this morning’s paper, a hearing officer for the state’s Freedom of Information Commission has issued a preliminary ruling finding that Newtown police illegally withheld public access to 911 calls made from inside Sandy Hook Elementary School during the Dec. 14 attack.
The hearing officer, Kathleen K. Ross, chastised Newtown for failing to evaluate whether the records were exempt from disclosure, instead deferring to state prosecutors who instructed the town not to release the tapes.
At a commission hearing in June, nearly six months after the Associated Press sought access to the tapes, Newtown and state officials argued that the recordings should not be released, citing a variety of exemptions, including a claim that releasing the tapes would prejudice a prospective law-enforcement action. Ross rejected all of those assertions, setting up a Sept. 25 hearing at which the full commission will decide whether to adopt Ross’s report.
Lawyers for the state Division of Criminal Justice will be back at the commission’s offices, making the case for why the tapes should not be released. And even if the commission upholds the hearing officer’s report – as they usually do – the state could appeal that decision to Superior Court, a step that would add months if not years to the resolution of the matter.
When reporters at the Atlanta Journal-Constitution sought access to public records about tax-lien sales that were costing residents of Fulton County millions of dollars, officials said the newspaper could have the data – for a fee.
That fee? $16.2 million.
It was the latest in a string of roadblocks county officials had erected in hopes of avoiding scrutiny of the costly deals, and it persisted until the state attorney general threatened to join the newspaper in suing the county pols.
That snubbing of Georgia’s freedom-of-information laws earned Fulton County a finalist spot – but not the grand prize – in the inaugural “Golden Padlock” award from the journalism group Investigative Reporters and Editors. The partly tongue-in-cheek award is given in recognition of “unrelenting commitment to undermining the public’s right to know.”
As bad as the county tax commissioner’s actions were deemed to be, IRE gave the top prize to the U.S. Border Patrol for what it called stonewalling by the federal agency in response to requests for information about deadly shootings by agents. “The U.S. Border Patrol’s resounding silence on fatal shootings involving its agents epitomizes the kind of intransigence for which this award was created,” IRE president David Cay Johnston said in a press release.
Three other agencies earned finalist spots:
JobsOhio, a non-profit economic development agency that replaced the Ohio Department of Development, and which was made exempt from most public-records laws despite being established with public money and having access to a huge pool of assets from the state’s control of liquor profits.
New Jersey Transit, which responded to a request for the agency’s hurricane preparedness plan by providing a document entirely blacked out except for the title.
The Centers for Disease Control, for its slow response to requests for information on Lyme Disease, including one case in which a requester was made to wait more than five years for records.
The reporters’ group also inducted the U.S. Department of Justice and Attorney General Eric Holder into its “Hall of Shame” for what it called the “Orwellian practice of monitoring journalists’ phone records in pursuit of whistleblowers.”