Category Archives: Transparency/FOI

Yet Another Effort to Keep the Public in the Dark about the Public’s Business

by Categorized: Government, Law Enforcement, Legal Affairs, Transparency/FOI Date:

It is extraordinarily well-settled law in Connecticut that personnel records related to the official conduct of our civil servants are public records that must – with rare and well-delineated exceptions – be released to members of the public, who employ those civil servants.

And yet, decades after the state Supreme Court resolved any serious question about the obligation oftopsecret public agencies, the dockets of the Freedom of Information Commission are routinely clogged with cases in which one town or another is trying – through ignorance or willful law-breaking – to keep personnel files secret.

Usually, the arguments are worn and tired, but occasionally an agency will come up with a novel, if misplaced, justification for skirting the law. That’s the case with a complaint brought against the Ansonia Police Department, which refuses to release personnel records for one of its officer. Continue reading

Secrecy-Obsessed Bureaucrats Battle for Coveted “Golden Padlock Award”

by Categorized: First Amendment, Government, Law Enforcement, Legal Affairs, Media, Transparency/FOI, Uncategorized Date:

When the Boston Globe sought records related to crashes involving Massachusetts State Police cars, the agency said it would be happy to comply – for a fee of $62,200. The agency was also willing to release a log of public-records requests – for $42,750. And the Staties told a reporter for the Bay State Examiner that he would have to pay a $710.50 “non-refundable research fee” just to find out how much the agency would ultimately charge for copies of internal-affairs documents.golden_padlock

For “habitually going to extraordinary lengths to thwart public records requests, protect law enforcement officers and public officials who violate the law and block efforts to scrutinize how the department performs its duties,” the Massachusetts State Police was named one of four finalists for the Golden Padlock Award, a slightly tongue-in-cheek honor bestowed annually by the journalism organization Investigative Reporters and Editors (IRE).

“It normally takes months or longer to respond to news media FOI requests. Requests for basic documents routinely produce refusals, large portions of blacked out documents or demands for tens of thousands of dollars in unjustified fees,” IRE gushed in announcing the department’s nomination. The news organization also quoted a 2013 story in the Worcester Telegram & Gazette that declared: “The Massachusetts State Police is a habitual offender – verging on a career criminal – when it comes to breaking a state law intended to ensure government is accountable to the people it serves.”

This is the third year IRE has led the hunt for “the most secretive government agency or individual in the United States.” Last year, the award was shared by the U.S. Navy FOI office, which not only stymied efforts by a reporter to obtain information on a shooting spree at the Navy Yard in Washington, D.C., but also accidentally sent the reporter an internal memo outlining the plan to keep records secret; and the governors of Oklahoma and Missouri, who went to extraordinary lengths to keep the public in the dark about problems with prison executions.

Joining the Massachusetts State Police as finalists this year are the Colorado Judicial Branch, which keeps records of its spending and disciplinary actions under wraps; The Texas Department of Public Safety, which tried to block inquiries into the validity of its border-security program; and the U.S. Department of Defense, which has stonewalled efforts to learn more about the massacre of 16 civilians in Afghanistan by an Army staff sergeant.

“There is a unique brand of courage displayed by public officials who deny, delay and circumvent the public’s right to know with a straight-faced sense of duty,” said Robert Cribb, a Toronto Star reporter and chair of IRE’s Golden Padlock committee. “They carry forward a rich tradition of undermining open records laws with ingenuity, commitment and condescension deserving of our acknowledgement.”

The winner will be announced at IRE’s annual conference this weekend.

A Transparency Advocate’s Legislative Wish List

by Categorized: Education, First Amendment, Government, Law Enforcement, Media, Politics, Public Safety, Transparency/FOI Date:

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

Once again, Spending the Public’s Money to Keep the Public in the Dark

by Categorized: Employment, Government, Transparency/FOI Date:

The Connecticut State Colleges & Universities system, with its 90,000 students and $300 million in state aid, is among the most expensive and most important government operations. So when Michael Gargano Jr. abruptly resigned his $224,554 job as provost last month, the taxpayers of Connecticut might have felt entitled to a robust exit interview, to learn why he was dissatisfied with the governance of the system and in particular how his thinking differed from that of his boss, Board of Regents President Gregory Gray.

But that’s not likely to happen.

As my colleague Kathy Megan has reported, a separation agreement Gargano and Gray signed contractually bars Gargano from uttering a sentence that disparages Gray – or anyone else connected to the state’s higher education network. Specifically, Gargano’s deal prohibits him from making any derogatory statement about the Board of Regents, about his employment with the Board of Regents or about any current or previous member, employee or officer of the Board of Regents.

On the other side of the ledger, the agreement continues Gargano’s paycheck for nearly 16 weeks, at a cost to taxpayers of more than $65,000. That payment – roughly equal to a year’s salary for a typical state employee – is not required by Gargano’s employment contract.

As is typical of negotiated employment separations, the agreement also bars Gargano from suing his former employer. There’s no indication he had any basis for a suit, although if he was in fact treated in a way that violated the law, perhaps that, too, is something the taxpayers had a right to know.

So in the end, an employee of the public has signed off on giving tens of thousands of dollars of the public’s money to another public employee as part of a deal that will keep the public in the dark about the public’s business.

Does anyone have a problem with this?

Download (PDF, 1.1MB)

The Practice Book Rule That Connecticut Judges Rarely Obey

by Categorized: First Amendment, Law Enforcement, Legal Affairs, Media, Transparency/FOI Date:

The arrest affidavit detailing the criminal case against Southington teenager Eric Morelli, who unwittingly caused a fatal fire by tossing firecrackers at a friend’s bedroom window, was ordered sealed three different times in the last month and half, until a Superior Court judge lifted the secrecy order late last week after acknowledging there was no good reason to keep the document under wraps.

This happens too osealedfileften, despite a legal mandate that favors openness in the courts, and clear rules establishing the hurdles that must be cleared and the process that must be followed when judges take what should be the extraordinary step of shutting off public access.

So as a public service, The Scoop would like to publicly remind the state’s judges, prosecutors and defense attorneys of their obligations under the Connecticut Practice Book when seeking to seal arrest warrants and other court documents.

Section 42-49A of the Practice Book begins: “Except as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public.” That presumption is echoed in the commentary of the section, which summarizes the findings of various court cases that make up the established and non-discretionary law of the state. “The public and press enjoy a right of access to attend trials in criminal cases and to access documents filed in connection with such cases,” the Practice Book notes. “This right is well settled in the common law and has been held to be implicit in the first amendment rights protecting the freedom of speech [and] of the press.”

That right, of course, is not absolute – as indicated by the phrase “Except as otherwise provided by law” – and there are various reasons why at least portions of a court document may legally be sealed, such as to protect witnesses or preserve an ongoing criminal investigation that would truly be jeopardized if certain details became publicly known.

But the Practice Book recognizes that is a momentous step and mandates that judges work to minimize the impact on the public’s right to know. As such, a sealing order can be entered “only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public’s interest in viewing such material. The judicial authority shall first consider reasonable alternatives to any such order and any such order shall be no broader than necessary to protect such overriding interest.”

And the Practice Book requires judges to pay more than lip service to that principle by spelling out exactly what they’re doing and why. In sealing a document, “the judicial authority shall articulate the overriding interest being protected and shall specify its findings underlying such order and the duration of such order.” In addition, “the judicial authority shall order that a transcript of its decision be included in the file or prepare a memorandum setting forth the reasons for its order.”

There are no transcripts or memoranda in Eric Morelli’s file and veteran criminal court reporters will tell you that in practice, there is little resembling the formality and gravity envisioned by the Practice Book rules.

In the Morelli case, the initial seal was requested by the prosecutor in what sometimes seems like an automatic action in higher-profile cases. Such requests are rarely rejected by judges. The last extension to the seal order was requested by Morelli’s defense attorney, who said he feared pre-trial publicity could poison a jury pool and that details in the warrant might be embarrassing to those involved.

Defense attorneys are duty-bound to promote their clients’ interests, but seasoned lawyers certainly know those are almost never valid reasons for keeping an arrest warrant secret. Nevertheless, some judges apply an inappropriately low level of scrutiny to such requests. And as in the Morelli case, they often are overturned only after intervention by a newspaper lawyer.

That’s not how it’s supposed to be. So in this, the 223rd year of the Bill of Rights, I offer a modest proposal that the state’s criminal bar and judiciary give Practice Book Section 42-49A a fresh read and recommit to the transparency that has been a hallmark of a reputable judicial branch for centuries.

Is Jailed CCSU Poet a Good Professor? That’s None of Your Business.

by Categorized: Education, Law Enforcement, Transparency/FOI Date:

My colleague Kathy Megan reports this morning that the Board of Regents for the Connecticut State University system will reconsider Tuesday’s decision to grant full professorship to Ravi Shankar – a promotion that occurred while Shankar was behind bars at the Hartford Correctional Center.

In seeking to distance Shankar’s legal troubles from his classroom duties, regents spokesman Michael Kozlowski said he has heard that Shankar, the school’s poet in residence, “has tremendous student ratings, they like him very much, and that his academic record, at least as far as I know, is quite good.”

We’ll have to take his word for it.

As I’ve noted before, there is a strange lack of transparency surrounding the assessment of public university professors in Connecticut, with all records of their performance and evaluation off limits to the taxpayers who employ them. But that cloak confidentialstampof secrecy is yet more stark for faculty employed by the State University System, where the entire contents of personnel files are closed to any outside scrutiny.

Those aren’t my words; that’s the actual language of the faculty union contract, which was given the force of law years ago by the legislature. “The entire contents of personnel files,” the contract reads, “shall be considered private and may not be opened to any outside scrutiny except when ordered by a court of law.”

Those personnel files contain a faculty member’s application for employment, payroll records, disciplinary actions, job-related correspondence with university administrators and “all other relevant personnel actions.”

That unmatched secrecy would typically run afoul of the state’s Freedom of Information laws, which recognize that public accountability is part of the deal when the public pays your salary. But under Connecticut law, when the legislature approves a collective-bargaining agreement, the provisions of the contract supersede any conflicting state law.

So in 1997, the union asked for wholesale secrecy, negotiators for the state agreed, and legislators let it become law.

“One the biggest potential threats to public accountability is a state law (Gen. Statutes section 5-278) that is being used to allow public employee contracts ratified by the legislature to trump FOI statutes when it comes to releasing information in employee personnel files,” the Connecticut Council on Freedom of Information wrote in their Agenda for Open Government last year. “The executive branch should refuse to negotiate, and the legislature should refuse to accept, such back-door assaults on accountability in the state’s union contracts.”

The current state-university contract expires next year and negotiations will begin anew. We’ll see if there are voices in state government willing to stand up for transparency. In the meantime, it’s anyone’s guess whether or not Professor Ravi Shankar’s academic record is in fact “quite good.”

FBI Releases Heavily Redacted Report on Adam Lanza

by Categorized: Law Enforcement, Transparency/FOI Date:

In response to a Freedom of Information Act request by the Courant’s Dave Altimari, the FBI has released 111 heavily redacted pages detailing its investigation into Sandy Hook shooter Adam Lanza. As Altimari reported, another 64 pages were withheld in their entirety.

The government claimed generally that releasing the redacted information would constitute an invasion of personal privacy, reveal the identify of confidential witnesses or interfere with law-enforcement proceedings. The partially redacted pages can be viewed below.

A Sunshine Week Question: Why Are Evaluations of Public University Professors Kept Secret?

by Categorized: Education, Employment, Government, Law Enforcement, Media, Public Safety, Transparency/FOI, UConn Date:

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.

Miller Evaluation (Text)

Malloy Opening Up the Data Mines

by Categorized: Data, Government, Transparency/FOI, Uncategorized Date:

Gov. Dannel P. Malloy signed an executive order today designed to take some of the massive piles of data held by the state and move them onto an easily accessible website where researchers can dive in.

“This data belongs to the people of Connecticut, and this initiative will help make that data more easily and conveniently accessible to them,” Malloy said, expressing a sentiment not always championed by government officials.

The executive order instructs the state’s executive agencies to identify a first round of datasets that will be made available on what is being dubbed the Connecticut Open Data Portal, at data.ct.gov. Agencies have been told to look for data that is reliable, already in electronic form, frequently requested by the public and free of confidential information.Malloy told the departments to also consider whether disclosure of the information would “improve agency accountability and efficiency, enhance public knowledge of the agency’s operations, or create economic innovation and opportunity.”

Agencies have 90 days to come up with that first list.

Tyler Kleykamp, who works for the Office of Policy and Management, will l lead the enterprise as Chief Data Officer (not to be confused with the television character “Data,” who was a chief officer of the U.S.S. Enterprise).

The initiative builds on the state’s transparency website, which already provides data in searchable and downloadable form on the state’s payroll, pension, contracts, grants and payments. And it’s part of a larger trend of freeing “big data” for analysis by researchers, journalists and business interests. States maintain enormous amounts of data on everything from health care spending to educational performance to highway safety. And more and more of it is seeping into the public domain.

“Timely and consistent publication of public information and data is an essential component of an open and effective government,” the executive order proclaims.

But as it moves to place that information online, the governor’s office also said it would safeguard private information, and said the initiative “does not apply to any protected data that, if disclosed, would violate state or federal law, would endanger the public health, safety or welfare, hinder the operation of government or impose an undue financial, operational or administrative burden on a state agency.”

The way officials interpret those parameters may determine just how public all that public information really will be.

When Winning Equals Losing at the Freedom of Information Commission

by Categorized: Government, Transparency/FOI, Uncategorized Date:

Wrenching a stack of public documents from a government agency that prefers to operate in secret can be a long and frustrating process, from the initial request for access, to the final hearing before the state’s Freedom of Information Commission.

But for requesters with the law on their side, the long trek typically ends with the satisfaction of finally holding that stack of documents.

At least that’s how it’s supposed to work.

But at a hearing Thursday, the FOI Commission considered three separate cases in which it found that agencies should have released a variety of requested records – while simultaneously ruling that the Commission was powerless to do anything about it.

The culprit in each case: time.

Continue reading