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.

In one case, the Journal-Inquirer’s Alex Wood, who is practically an honorary member of the Commission for his impressive record of holding public officials accountable for their FOI violations, won his year-long quest to pry open the door on Connecticut’s pardon process.

Wood last January sought access to the records reviewed by the Board of Pardons in considering the applications of six convicts. The pardons board said no, adopting a kitchen-sink defense and claiming the records were wholly or partly exempt under more than 20 different statutes.

The FOI Commission Thursday rejected nearly all of those claimed exemptions, permitting the pardons board to withhold or redact only clearly exempt information, such as the name of a sexual-assault victim or records from the National Crime Information Center, which are explicitly confidential under federal law.

Wood’s victory should help the public evaluate how well the Board of Pardons performs its important job, and assess whether it grants and denies pardons equitably and with good reason.

But it was only a partial victory.

The Commission ruled that at the time Wood made his request, he should have been provided with the non-exempt records he asked for. But in the year since, some of the applicants received unconditional certificates of pardon – which triggers a state law officially erasing their criminal records and barring agencies, including the Board of Pardons, from releasing those documents.

So while the Board of Pardons broke the law in denying Wood those records, the FOI Commission had no authority to make them cough up the documents.

That same conclusion was reached Thursday in the case of James Torlai, who appealed a state police decision denying him access to records in a drunken-driving case. The Commission ruled that the state police violated state law in refusing to release the records when Torlai requested them in December 2012. But six months later, the records were erased as a matter of law and once again, by the time the matter came before the Commission, it was too late.

A similar pattern occurred yet a third time during Thursday’s Commission hearing, in the case of Adam Osmond, who sought internet-usage statistics for certain employees of the Department of Social Services during a particular three-month period. The data was available at the time Osmond made his request. But by the time the department set out to gather the information, officials discovered the state only has ready access to three months’ worth of data – and those three months had passed.

So for the third time in a single meeting, the Commission ruled that a complainant was entitled to public records – but wasn’t going to get them.

Some commissioners were clearly displeased with that repeat scenario, and it will be up to the commission to fashion a remedy. Civil penalties might be one way to dissuade public officials from keeping the public in the dark by simply running out the clock.

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