People can now submit Freedom of Information Act requests to the FBI electronically through a new eFOIA form.

The FBI said the new electronic form makes requesting information easier. The bureau said it revamped its records Web site to include a guide for research in FBI Records, details on what happens after you make a request and data on how to file an appeal with the Justice Department.

Although these requests are governed by the federal Freedom of Information Act, you should expect to see similar developments in Connecticut over the next decade with requesters increasingly starting their research on the internet and with electronic records become the norm.

When an attorney is retained to provide legal advice regarding the discipline, documents that are produced by the attorney for the purpose of providing legal advice are privileged and, as such, can be withheld even if an employee files a freedom of information request asking for every document under the sun.

But what if the attorney hires an investigator to look into employee misconduct? Is that investigator’s report, which may not have been produced by an attorney, privileged and protected from disclosure under the FOIA?

According to a recent Freedom of Information Commission, the answer is yes. If an attorney hires an investigator to assist that attorney in providing legal advice regarding employee discipline, that investigator’s report is privileged and an agency or town is not required to produce that report in response to a FOI request. See Anderson v. Superintendent of Schools, Derby Public Schools, FOIC Docket No. FIC 2009-166 (Mar. 10, 2010).

But what if an agency conducts its own investigation before retaining counsel? In most instances, any reports produced during that investigation would be subject to a FOI request even though an identical report produced by an investigator working for an attorney could be withheld.  As is often the case, the lesson to be learned from Anderson is that public agencies are often better off if they involve counsel in employee discipline matters at the earliest stages.

Correction Officer Kevin Brace doesn’t know why a convicted arsonist at the prison where he works was able to get his personal information through a Freedom of Information request that can reveal his home address, but he can’t imagine it’s a good thing.

“It’s paper terrorism,” said Brace. “They can get my personal information and there is nothing I can do about it.”

Brace and other government employees in a dozen categories had thought their home addresses were protected by  a law limiting access to that information under the FOI law. But a Superior Court judge ruled last year that municipal data such as land and voting records can’t be kept secret.

Now a legislative committee is considering a bill to conform the FOI law to that ruling, an action that has town clerks and the Connecticut Freedom of Information Commission on one side and the protected employees on the other.

The rest of the article talks about both sides reasoning for supporting or opposing the bill. The town clerks argue that keeping the addresses confidential would be burdensome. Public safety officials, on the other hand, worry about more than just their own safety. Apparently some inmates are filing spurious liens to make it harder for public safety officials to sell their homes.

Seems like this issue will keep coming up until the legislature makes a decision one way or the other.  Last March I wrote on the Connecticut Police Chiefs Association police efforts to close this privacy loophole.  I’m penciling in another post for March 2011.

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.

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.

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.

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]

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.