A number of our law-enforcement employees – those folks who are paid by us for the sole purpose of serving us – have been working extra-hard lately devoting scarce time and resources to blocking our ability to hold them accountable.
For the second time this month, the state Freedom of Information Commission has had to waste its time instructing civil servants, once again, that we, as the bosses of every single person in public employment, have a legal right to know how our employees are performing the jobs we pay them to do.
And now comes word that the under-resourced Commission will have to do it again sometime down the road, based on the groundless refusal by state police to release an internal affairs investigation of two troopers who are accused in a civil suit of trumping up charges against an East Hartford man.
These issues have been settled dozens and dozens and dozens of time by the Freedom of Information Commission. And The Scoop has written on the topic multiple times. But while public employees and their lawyers are obligated to know and obey the laws of the state, the provisions of the Freedom of Information Act just don’t seem to sink in.
So as we’ve done before, here’s yet another primer on why it’s not an invasion of privacy when we the bosses want to check up on the employees we collectively hired.
Connecticut, recognizing the importance of transparency in a democracy, enacted strong freedom-of-information laws four decades ago that stand for the proposition that the people’s business really is the people’s business. Under the law, documents created by our employees are public unless they are covered by one of a number of exemptions written into the law. One of those exemptions covers records in personnel files, but only if the release of those records would constitute a “clearly unwarranted invasion of privacy.”
In unpacking that phrase nearly a quarter-century ago, the state Supreme Court established an extremely high bar for invoking the exemption, ruling that personnel records could be withheld only if each of two prongs was met: that the information was of no legitimate public concern, and the information was of a sort that its release would be highly offensive to a reasonable person. And matters involving public employees performing their public duties are generally presumed under the law to be of legitimate public interest.
It is not, of course, up to the employee to declare a document to be an invasion of his or her privacy. That is a determination that may be made only by agency officials, and – if they are faithful to their oaths of office – only in accordance with the Supreme Court’s ruling.
Nevertheless, on August 9th, the Freedom of Information Commission had to spend time schooling the New London Police Department, which broke the law by refusing to release an internal affairs investigation into one of its employees – meaning one of our employees.
The subject of the investigation told the commission that she’d prefer the public remain in the dark about the investigation because its release would be embarrassing and could make her appear untrustworthy. Transparency advocates have heard these irrelevant arguments innumerable times. But once again, the FOI Commission had to calmly note that gee, no, this isn’t an invasion of privacy under the well-established law because “the information contained in the record pertains to official police business and therefore, does pertain to legitimate matters of public concern.” And while the disclosure of the information might well be embarrassing to the employee, the commission found, its release “would not be highly offensive to a reasonable person.”
And so, a year after the original request for records, New London police were finally ordered to stop violating the law.
That was two weeks ago. When the FOI Commission convened this afternoon for its next scheduled meeting, another specious invasion-of-privacy case was waiting. This time, West Haven police refused to release a single document in the personnel file of an officer, based on the officer’s assertion that it would be an invasion of privacy. Months after the records were requested, you and I paid for a Commission lawyer to conduct an evidentiary hearing. The result: the officer “did not offer any evidence to prove that the information in his personnel file did not pertain to legitimate matters of public concern and that the disclosure of the information in the records would be highly offensive to a reasonable person,” the Commission found.
And the police department? “At the hearing on this matter, the respondents offered no evidence to prove the applicability of the exemption.”
So this afternoon, West Haven was formally ordered to stop violating the laws they are sworn to uphold.
And now we have a pending case involving three state police officers who made headlines in a confrontation with a man named Michael Picard, who was protesting a drunken-driving checkpoint in West Hartford two years ago. Picard thinks sobriety stops are unconstitutional, so he’s known for showing up at the checkpoints, holding up warning signs for motorists and taking pictures of police. When he did that at the West Hartford checkpoint, an officer seized his video camera and placed it on the top of a cruiser – apparently unaware that it was still rolling.
According to Picard’s lawsuit, the camera then captured the officers discussing whether to charge Picard with criminal offenses. “Do you want me to punch a number on this one?” an officer asks, using what the lawsuit says is police slang for opening an investigation and assigning a case number. “We gotta cover our ass.”
Another officer, according to the suit, suggested charging Picard with creating a public disturbance. “’Then we claim that in backup we had multiple [motorists] stopped to complain about’ a man waving a gun, ‘but that no one wanted to stop and give a statement,’ ” the lawsuit alleges. The charges against Picard were later dropped.
State police apparently reviewed the actions of our employees. And what did they conclude? According to the Department of Emergency Services and Public Protection, that’s none of our business. “The three employees have all objected” a department lawyer wrote to the Associated Press, “and the agency supports them in that decision.”
After more wasted time and resources, it will again fall to the Freedom of Information Commission to declare how wrong – and anti-Democratic – that response is.
For all the lookalike cases the Commission is forced to contend with – repeating the same court decisions and the same laws – there is one statute the Commission doesn’t cite nearly enough. Under section 1-206(b)(2) of the Connecticut General Statutes: “upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard … the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.”
The Commission rarely imposes those civil penalties. For government officials – our employees – who violate such long-settled issues and waste our money, it may be time to start taking some of theirs.