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Here’s an entertaining treat to close out Sunshine Week on the Connecticut Freedom of Information Law Blog. The video clip is from Stephen Colbert, Comedy Central’s pseudo-conservative President of the United States of Funny. The Local Open Government Blog summarizes the clip as well as you can in words.
Stephen Colbert presented an editorial on an open government story from Tennessee. There, a Memphis newspaper has published an on-line database listing people with concealed weapons permits. Colbert satirically rails against on-line access to public records because of a claimed invasion of privacy.
Enjoy.
I’ve written several times this week about Connecticut’s new law that requires municipalities post meeting notices and minutes on their websites. But if you don’t like the new law, you should remember that Connecticut’s Freedom of Information law is like New England weather. If you don’t like it, wait a minute.
There are currently four bills before the General Assembly that would revise Section 1-225 of the Connecticut Freedom of Information Act to limit the impact of the changes that occurred when Public Act 08-03 went into effect last October. Three of the bills, SB-68, SB-87, and HB-5731 have been sent to the Committee on Government Administration and Elections and probably won’t be acted upon. The fourth bill, SB-772, was approved by the Committee in a 13-2 vote on March 6th. The bill has since been sent to the Office of Legislative Research and Office of Fiscal Analysis to be reviewed before it will eventually be considered by the full legislature. Here’s what the GAE Committee’s Joint Favorable Report has to say about the bill:
Some municipalities have found the current seven day posting requirement for public agency meeting minutes (found in PA 08-3) to be onerous if not impossible to fulfill with available personnel and funds. Their subsequent fear of legal action in light of possible noncompliance has led to the shutting down of several municipal websites; municipalities have sacrificed a useful tool in order to avoid the costs associated with potential legal proceedings.
The substitute language (LCO No. 4561) changes the seven day requirement to fourteen days; changes the October 1, 2009 exemption end date to December 31, 2009 if such public agency files a notice with the applicable town clerk indicating the reason preventing compliance; and provides for further exemption (beginning January 1, 2010 and ending January 1, 2011) if such public agency files a notice with the commission describing the hardship that prevents such public agency from complying with the posting requirement.
But if you are looking for the full language of the bill on the General Assembly’s website, be careful. As of today, the text that you will likely find isn’t the operative language in the bill. You can read the current version of SB-772, the Joint Favorable Substitute bill, on this blog thanks to our very helpful friend’s at the Legislative Commissioners’ Office.
The passage from the Joint Favorable Report that is quoted above provides the important details. If the bill is passed, it will effectively give municipalities until January 2011 to comply with the most burdensome changes and will increase the amount of time cities and towns have to post minutes online from 7 days to 14 days. But the bill does not delay or change the requirements that meeting schedules must be posted online or that special meeting notices must be on municipal websites 24 hours before the meetings are held.
Although the bill’s prospects look strong, municipalities should continue to comply with the new law until it is changed since it is possible that the bill could be defeated or fail to pass because of more pressing legislative business.
Last week, I told you about a great website created by the State of Utah that provides a centralized source for browsing and searching public meeting records for just about every state and local government entity. I also mentioned that I would write more about the controversy surrounding Connecticut’s efforts to require local government notices to be posted online. Today I will cover the the change in the law that started the controversy, Public Act 08-3.
Public Act 08-3 amended Section 1-225 of the Connecticut Freedom of Information Act to require that all “public agencies” post their meeting minutes, notices, and schedules on their websites. In Connecticut, public agencies are broadly defined to include almost any government entity, including small towns and even some arts commissions.
In response to the change, many small towns cried foul, saying that the requirement was an unfunded mandate and that it was not feasible for towns that have volunteers manage their websites. Harwinton was one of those towns and rather than absorbing the costs of a paid webmaster or a team of lawyers to defend FOIA complaints, the town shut down its website on October 1, 2008 — the date the new law took effect.
Harwinton First Selectman Frank Chiaramonte explained the town’s decision in testimony before the General Assembly’s Government Administration and Elections Committee on February 2nd.
I just wanted to preface my remarks by saying I’m all for giving out as much information as we can to our residents and the citizens of the state of Connecticut. What happened to us was we took down our website, actually, the day that the law went into effect. We happened to have a selectmen’s meeting, and we quickly realized that we were not going to be able to conform to the act, the seven days for posting the minutes and 24 hours for posting agendas.
We have a volunteer technology committee that was — that put the website up and was also putting the information on the website. One in particular, is somebody who is extremely busy, has his own — working his business, and was out of town a lot, and so the minutes got put up when they could. We had just defended two FOI complaints and we felt that we could not — we did not want to do that again. One of them cost the town, the taxpayers of the town, quite a bit of money to defend and we decided that we would take our website down before we had any complaints.
I think every town probably has some person or people who are the gotcha people, and as soon as you do something that is not on — in this particular case, in a timely basis, then they want to get you for it. And we decided it was time to take it down.
As of today, the Harwinton website is still dark, but several bills before the General Assembly may help change that, including one bill, SB-772, that I will discuss in more detail tomorrow.
Of course there is another solution that will provide online access to these public records without forcing an unfunded mandate on Connecticut’s cities and towns: a statewide public meeting notice website. As I mentioned on Friday, Utah does it and as, I wrote in this Sunday’s Connecticut Post and Danbury News-Times, Connecticut should too.
Yesterday, we found out that Connecticut stumbled into a 37th place finish in the Sunshine Week survey about online access to public records. But there is hope for the Nutmeg State when it comes to one disturbing category of records: sex offender registry information.
Governor Rell is asking the legislator to update the registry law so that parents can not just learn about what sex offenders are in their neighborhood, but also the severity of offenders’ sex crimes. Here’s a report from the New Haven Register:
State residents would be able to gauge the potential danger from convicted sex offenders if the Sex Offender Registry listed the severity of the crimes, the governor and public safety commissioner testified Monday.
The state now lists 5,046 sex offenders on its Web site, but there is no further breakdown on the crimes they committed, officials said.
Gov. M. Jodi Rell and Public Safety Commissioner John Danaher III testified before the Judiciary Committee on behalf of a bill to make several changes in the registry, including one that would classify sex offenders into three tiers.
This bill should sail through the legislature, but stay tuned for updates.
The Connecticut Sex Offender Registry website is published by the Department of Public Safety and also provides information about sex offenders who were convicted in other states, but live in Connecticut.
The University of Connecticut’s college basketball teams may be number one seeds during March Madness, but the 2009 Survey of State Government Information Online ranks Connecticut a lowly 37th for online access to public records. Connecticut was tied with Massachusetts and Maine. Texas came in first and Mississippi came in last place.
The survey was prepared as part of this year’s Sunshine Week. The Sunshine Week Committee’s full report goes into more detail, but here is what it has to say about Connecticut:
Connecticut: Anyone seeking financial disclosure reports from state officials in Connecticut must e-mail their requests, which are then considered for release at the discretion of the governor.
The survey included twenty categories of records. Connecticut provides nine of those categories online. Texas provides all twenty. You can view a more detailed regional analysis on the Sunshine Week website.
On Friday, I told you about Utah’s Public Meeting Notice website. If you want to read more on the topic, I wrote an article that appears in today’s Connecticut Post about how Connecticut should follow Utah’s lead.
Update: My article on Connecticut’s Freedom of Information Act was also picked up by the Danbury News-Times.
As I mentioned two weeks ago, this week is Sunshine Week, an annual initiative led by the American Society of Newspaper Editors. Sunshine Week seeks to highlight the importance of open government and freedom of information. To start the week off, you should visit the Sunshine Week website and Sunshine Week blog. This year’s Sunshine Week will focus on government records online.
I’ve mentioned before that a great way to learn about trends in open government and freedom of information law is read other FOIA blogs. Well, here’s another example. The Allied Law Group’s Open-Government Blog, which covers the topic for the state of Washington, recently posted about something great in Utah. Here’s what our friends at the Allied Law Group had to say:
The state of Utah is ahead of the times.
They have a web site where the public can find out about the dates, times, and locations of all public meetings of state and local governmental entities.
And they’re right. The state of Utah really is ahead of the times. The Utah website not only includes dates and times of meetings at all levels of government, but also includes agendas and attachments to notices.
Citizens in Connecticut would be well served by a similar resource and it could be used to remove some of the administrative burden that small towns face in meeting new requirements about posting notices and minutes online.
There has been a lot of controversy in Connecticut about online agendas and minutes and there are couple of bills addressing that topic before the legislature. Although I will discuss this topic and bills in more detail next week, the crux of the issue is that small towns don’t think they can afford the technical costs and liability associated with posting agendas and minutes online. So some of those small towns are asking the state to repeal a recent change to the Freedom of Information Act requiring that town’s with websites post agendas and minutes online.
The new requirement is a classic unfunded mandate and perhaps Utah has found the best solution. I’ll have much more on this next week as part of the 2009 Sunshine Week.
A recent case in Michigan has raised an interesting question, are government officials’ text messages public records?
In the Michigan case, the Detriot Free Press requested copies of text messages between former Detroit Mayor Kwame Kilpatrick and an aide with whom he was having a romantic relationship. Some of those text messages were personal in nature, but were sent on city owned pagers. As the FOI Advocate and Free Press report, the court ruled that the text messages are public records and that they had to be released under the Michigan Freedom of Information Act.
So what about Connecticut?
Here is how the Connecticut Freedom of Information Act defines a public record:
“Public records or files” means any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.
The Connecticut FOIA also has an entire section on “disclosure of computer-stored public records.” For those of you reading along at home, that is Section 1-211. Here’s what that section says in part:
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.
So taken together what does that mean? Are government employees’ text messages public records that anyone can request to see?
My lawyerly answer is: sometimes.
If the text messages are about public business using government issued equipment, the answer will likely be yes. Of course, there are exceptions, many of which I will address in future posts.
But what if the text messages do not relate to public business?Say for example, what about text messages about a private affair?
The answer may make Mr. Kwame wish he was a mayor in Connecticut instead of Illinois. In our state, he could have argued that his romantic text messages weren’t public records because they don’t relate “to the conduct of the public’s business.” The Free Press would have argued that an affair between a mayor and an aide is the public business, but that’s certainly not a clear cut argument.
And what about messages about public business on private equipment?
Stay tuned for an answer.
Today’s post is just for attorneys. Doesn’t that make you feel special, my fellow members of the bar?
Many agencies in Connecticut do not require that you file a formal appearance like those required by our state and federal courts. Even though it is always a good practice to file an appearance with an agency, you will often be forced to simply set forth your appearance in a letter.
But the good folks at the Connecticut Freedom of Information Commission have made your life a lot easier by creating a FOI Appearance Form. That’s it on the right and it is also available on their website. Best of all, the form is a fillable PDF, so you don’t need to break out the old typewriter or fill in your information by hand. For me, this is a huge blessing since I have the worst handwriting north of Long Island Sound.