Generally speaking, a public entity is not required to create a public record when it does not already exist just because someone asks for a particular record pursuant to the Connecticut Freedom of Information Act. This is a good policy. Responding to FOI requests can be a lot of work for cities and agencies. Creating entirely new records would be even more work.
But what about print-outs from computer databases? All the “information” contained in the databases exists and is generally subject to a FOI request, but people usually don’t use — or ask for — an entire database. They ask for a list of X, Y, and Z that may not already exist, but is contained within a database that can be readily searched for X, Y, and Z.
So is a public agency required to search a database in response to a FOI request? The Connecticut Freedom of Information Commission says it does.
The Commission recently dealt with this issue when Department of Revenue Services declined to provide any records in response to a request for a copy of a seniority list as of a certain that that was available through the state’s payroll system. The requester identified the system directly and even provided the precise 13-step process for producing the list when he DOR denied his request because the FOI request was for the “the request of a record that does not exist.”
The Commission quickly dispatched the DOR’s response, citing Connecticut General Statutes § 1-211, which states that:
Any public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to the Freedom of Information Act, a copy of any nonexempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such copy or have such copy made.
The case is Findley v. Law, Doc. No. FIC 2009-093 (June 25, 2009). It be be read in full here.
One of the underlying themes of this blog is that public agencies need to learn how to deal effectively with what I like to call FOI “frequent fliers.” These are the citizens — or entities in the case of organizations and newspapers — who account for the vast majority of Freedom of Information requests (and appeals).
Why do I raise this point today? Because this is the third post in a row about Robin Elliott, an inmate at the Northern Correctional Institution who spends his time in jail filing FOI requests.
Today’s FOIA appeal involves a video recording viewed during a disciplinary hearing involving Mr. Elliot. The Department of Correction denied the request because providing Mr. Elliot could result in a safety risk. The Freedom of Information Commission agreed, holding that the video was exempt from the Freedom of Information Act under Connecticut General Statutes § 1-210(b)(18).
So no harm, no foul, as they say on the playground, right? Not exactly.
Mr. Elliot also requested copies of the weekly disciplinary summary, and the DOC did not search those records. Because of this, the FOIC held that the DOC failed to prove that they conducted a diligent search for all responsive records and therefore failed to prove that they provided all the requested records. The DOC was ordered to take another look and provide the records free of charge.
Although that may not be a “big deal” from the DOC’s perspective, an important lesson can still be learned from this case. When you have a FOI frequent flier, make sure to dot your i’s and cross your t’s. An appeal is probably coming and you need to show that you did everything right.
Read Full Decision in Elliot v. Warden, Doc. No. FIC 2008-733, here.
It must be prisoner FOI week over at the Law Tribune, because we have a second inmate records request decision in this week’s issue. In fact, it is the same inmate. In this request, the inmate wanted questions answered about a policy that forbids prisoners from wearing boots. He also wanted a copy of the policy, which he was given four months after his request.
So what did the FOIC have to say about this frequent fliers appeal?
First the bad news for the DOC. The four month delay did not comply with the FOIA’s promptness provisions of General Statutes §§ 1-210(a) and 1-212(a). But what about the good news? They don’t have to answer questions about the policy. The FOIA does not force the DOC to answer the inmates questions. That would require creation of new records and the Freedom of Information Act only applies to records that have already been created.
The case was Elliot v. McGill, Doc. No. FIC 2008-601. You can read it here.
This week’s Law Tribune has a case summary of Elliott v. Warden, Doc. No. FIC 2008-627 (July 1, 2009). The case involves Connecticut General Statutes § 1-210(b)(18) and the public safety exception for Department of Corrections’ records. Elliot, an inmate, wanted records for July 4, 2008, when he claimed to have been placed in lock down during a staff cookout. The Commission said that the “safety risk” exception applied. You can read the full Final Decision on the FOIC website.
This week’s freedom of information tip should be pretty obvious, but maybe not obvious enough.
Here it is: don’t use your government email address to send racy emails to your girlfriend or boyfriend.
Why do I bring this up? Well, a Washington official did just that and it cost his town $5,000 for an independent investigation. Worse yet, Bob Sternoff, the guilty Kirkland City Council member, sent some of the emails while the city council was in session.
Maybe playing solitaire during sessions isn’t quite as bad after all…
[h/t: Open Government Blog]
I’ve written before about text messages as public records. We know that text messages are — at least in some circumstances — public records under the Michigan Freedom of Information Act and that the same logic would apply under Connecticut law.
Now it looks like the issue is spreading South, where a the city of Deltona, Florida has banned text messaging during public meetings because of concern about FOI laws and records retention. The FOI Advocate points out that this concern has some merit, since sometimes the only way to obtain text messages — even for a municipality — is by issuing a subpoena to the service provider. Since some text messages are deleted automatically within a few days, that means that records could be gone before a city could even obtain a copy.
About a month ago, I wrote about Senator Lieberman’s efforts to eliminate the 8¢ per page fees for downloading records from PACER, the federal courts public record system. There haven’t been any changes in fees yet, but the federal courts have made one change relevant to Connecticut. Thanks to a recent vote of the federal Judicial Conference, it will be easier to find out about sealed cases.
Here’s what the federal court systems’ blog has to say about the rule change:
The Conference, acting at its March 17 meeting, voted to have Internet lists of civil and criminal cases in district courts include a case number and generic name, such as “Sealed vs. Sealed,” for each sealed case.
Such lists for each of the 94 district courts are generated by the Judiciary’s Case Management/Electronic Case Files system and are accessible through the Public Access to Court Electronic Records (PACER) system.
Currently, PACER lists of sequentially numbered district court cases skip the sealed cases, but a member of the public could query the missing case number directly and would see a message stating that the case “is under seal.”
The Conference in 2007 strongly encouraged district courts to change the message that PACER users receive when querying a sealed case-from “this case does not exist” to “this case is under seal.” The latest Conference action is consistent with and further implements the 2007 Conference policy by providing the public with information to confirm the existence of a sealed case.
The Conference left it up to the individual district courts to determine what additional information about sealed cases, such as the initials of the assigned judge or the date of filing, should be available to the public.
The internet can be a powerful tool for open government, but sometimes a great idea doesn’t achieve its potential. For Connecticut, the Sunshine Review is a good example of an opportunity lost for freedom of information.
The Sunshine Review is a “wiki” where anyone can publish a report on transparency in state and local government. For those of you who don’t know what a wiki is, here is what Wikipedia has to say about them.
A wiki is a collection of Web pages designed to enable anyone who accesses it to contribute or modify content, using a simplified markup language. Wikis are often used to create collaborative websites and to power community websites. The collaborative encyclopedia Wikipedia is one of the best-known wikis.
Unfortunately, the collaborative and community aspects of the Sunshine Week wiki have not taken off. Few of Connecticut’s cities have been reviewed and those that have been reviewed have not been reported on thoroughly. The page for Connecticut is okay, but it isn’t the go-to resource that one might hope to find for such a website with a grand concept like the Sunshine Review. But the potential is there. Just take a look at the New Orleans review. It may not be flashy, but it gives you the basics. For most people, that’s all they ask to see.
So if you are a local activist or journalist, consider taking a few minutes to update your local city or town’s report. The internet will thank you.
What is the best way for your city or town to reduce open government compliance costs?
The good folks over at the Open-Government Blog recently raised a very good point about how municipalities can reduce the costs associated with Freedom of Information requests.
So what’s the key factor to reducing the costs of FOI requests? A government’s openness and transparency. If citizens don’t trust their government, they file more FOI requests.
Bainbridge Island, Washington provides a compelling example of this point in action. Here’s what a recent article from the Kitsup Sun has to say about records requests in Bainbridge Island.
Island residents’ growing desire to peer at the inner workings of their city government is slowing the municipal machine.
In search of financial documents, e-mail correspondence, development permits and sometimes archival materials spanning decades, residents made more than 630 public records requests to the city last year.
The number and scope of requests are becoming a workload and financial burden disproportionate to the city’s size and shrinking budget, city managers say.
“We’re at five times the number of requests of comparable cities,” City Attorney Paul McMurray said. “It’s a huge number of requests for a city of 22,000.”
And the politicians and citizens of Bainbridge Island know what has caused the recent spike in FOI requests: mistrust of local government.
The reason for the flood of requests is clear, Mayor Darlene Kordonowy said.
“We have lost trust from the community,” she said.
While islanders have built a reputation for strong involvement in local government, they’ve also earned a bit of infamy for an equally robust distrust for it.
Controversial land-use or public-financing decisions often spur requests for information. If requests hit roadblocks or delays along the way, distrust only grows.
“My feeling is that the city created this by not being more forthcoming,” said Rod Stevens, who has filed about a dozen records requests with the city. “We don’t have transparent government. People raise a lot of questions, but neither the mayor or the administration respond to them.”
The result for city is more administrative work with higher costs while at the same time staff is being reduced due to the recession. The clear lesson that we can learn from Bainbridge Island is that the best way to keep freedom of information compliance costs down is to have an open government that people trust.
The annual Connecticut Freedom of Information Conference will be held on April 9th in Rocky Hill and this year’s topic is the management of electronic records. More information is available at the Freedom of Information Commission’s website. The registration deadline is March 26th.