Although it is known as the “Sunshine Law,” the idea of summer fun is usually not synonymous with the Freedom of Information Act [“FOIA”]. Nevertheless, as we lament the passing of time (and loss of daylight), Connecticut’s Freedom of Information Commission [“FOIC”] issued intriguing decisions during the summer that provide teachable moments, such as the following:
Must we still give a document to someone who already has it? Yes. In Smith v. President, Board of Education, Windsor Public Schools, #FIC 2014-831 (August 12, 2015), a noted FOIA gadfly asserted that a board of education violated the FOIA when it denied his request for a copy of a handout that was distributed at a prior board meeting. The board asserted that this person was present at the meeting, and indeed received a copy of the document in question (along other members of the public). The FOIC found that the board violated the FOIA, noting that even if a complainant has received a copy of a document previously, it does not relieve an agency of its obligation to produce a copy when it is requested (again).
Lesson? The right to copies of public records exists even to those who may already have a copy of those same records. While it may seem like a waste of the agency’s time (not to mention a waste of money of a complainant to pay for the cost of receiving a copy of a document that he already has), the defense of “he has it already” will not be a winner at the FOIC. While you can point out to a requesting party the fact that he/she already has the document, if the party persists, you must them give the document to them consistent with the FOIA (and any exceptions to disclosure).
“Just listening” is still a meeting. In LaCasse v. Chairman, Housing Authority, Town of Somers, #FIC 2014-850 (August 12, 2015), a housing authority hosted a “resident meeting” at an elderly housing facility for purposes of listening to the residents’ comments and complaints regarding the facility. A person who was asked to leave the room by the authority filed a complaint with the FOIC, and the FOIC agreed that the person was denied the chance to attend a public meeting in violation of the FOIA. The Authority’s claim that the meeting was just for the residents (and thus not covered by the FOIA) was rejected.
Lesson? When an agency meets with its constituents just to listen, it is still conducting a public meeting under the FOIA, and this meeting will still be subject to the FOIA’s open meetings and notice requirements.
PR does not equal legal advice. As an attorney who both represents school districts and is married to someone who works in public relations, this case hits close to home. In DesRoches v. Chairman, Board of Education , Darien Public Schools, #FIC 2014-620 (August 26, 2015), a law firm representing the respondent school district hired a public relations [“PR”] firm to assist it with advising the district on how to create trust with district parents following a series of complaints about the district’s special education department. This same law firm denied a request for access to, among other things, communications between the PR firm and board of education members and employees, asserting that these communications were protected by the attorney-client privilege. The FOIC disagreed, holding that the communications did not concern or assist in the provision of legal advice but rather were “routine suggestions from a public relations firm as to how to put the ‘spin’ most favorable to” the school district.
Lesson? Sorry, but just having your agency’s law firm hire a contractor will not suddenly create a privilege between the agency and the contractor. Rather, the attorney-client privilege only exists to protect legal advice (not PR or political advice).
Can a public agency bring a FOIC complaint against another agency? The FOIC previously had appeared to assert that municipal agencies have standing to make FOIC requests and bring FOIC complaints (if denied access to records). See Town of Rocky Hill v. SecureCare Options, LLC, #FIC 2013-303 (April 23, 2014). However, the FOIC recently ruled otherwise. In Board of Finance, Town of Morris v. Treasurer, Town of Morris, #FIC 2014-906 (August 26, 2015), a board of finance brought a complaint against the town treasurer, asserting that the treasurer had denied the board access to certain public records. The FOIC dismissed the treasurer’s complaint, ruling that the right given to “persons” to request records (and to bring complaints challenging a denial of the same) may exists under the law for any “natural person”, “corporation” or “association” , but that governmental agencies were not such “persons” and do not have standing to bring FOIA requests and complaints.
Lesson? Even though a public agency itself cannot make FOIA requests of another agency, individual members of the same agency would still have the right to bring FOIA requests and complaints on their own. Of course, the agency may then be hard pressed to justify paying for the legal expenses for an individual to prosecute a FOIA complaint on his/her own behalf.