PUBLIC ACCESS AND ACCOUNTABILITY LEGISLATION
CONNECTICUT GENERAL ASSEMBLY
2016 REGULAR SESSION
Paula Sobral Pearlman, Staff Attorney
Connecticut Freedom of Information Commission
(Updated June 21, 2016)
Summary of Legislative Session:
During this short legislative session the most crucial legislation for the Freedom of Information Commission, as for many other agencies, was the proposed budget adjustments for Fiscal Year 2017.1 With respect to the FOI Commission, the budget passed by the General Assembly reduces the Commission’s budget from $1,735,450 to $1,481,416. The Commission was (and remains) extremely concerned that the nearly 15 percent reduction in its budget will have a detrimental impact on the Commission’s ability to carry out its core services and responsibilities, and that it will curtail the right of the citizens of Connecticut to open and accountable government.
Additionally, there were numerous pieces of legislation that would impact the public’s right to access government meetings and records. Although a few proposals would have increased the public’s right to access (e.g., SB 104, SB 203, SB 333, HB 5247, and HB 5499, discussed below), there were many proposals that would have further abridged access to public records and meetings (e.g., SB 253, HB 5180, HB 5501, HB 5512, HB 5613, HB 5616, discussed below). Fortunately, most of the proposals detrimental to the public’s right to access were defeated.
Below is a brief description of the bills of note:
BILLS PASSED - FAVORABLE RESULTS
SB 333; P.A. 16-93. AN ACT CONCERNING THE FOUNDATION OF THE UNIVERSITY OF CONNECTICUT.2
Senate Bill 333, as originally raised, sought to increase the transparency of, and accountability for, all foundations of constituent units and public institutions of higher education, including the UConn Foundation.3 The bill required, in relevant part, that certain financial information of such foundations be delivered annually to a single location (i.e., the General Assembly); and defined such information as a public record subject to disclosure under the Freedom of Information (“FOI”) Act.
The bill was viewed by some as a compromise proposal that balanced the need for transparency and accountability with the foundations’ interests in their ability to safeguard donor privacy and raise funds.
Although the FOI Commission was not involved in drafting Senate Bill 333, the Commission was supportive of the proposal. The Commission believes, however, that the better approach to achieving greater transparency would be to explicitly define the foundations as public agencies, subject to the provisions of the FOI Act.
Senate Bill 333 made it out of the Higher Education and Employment Advancement (“Higher Education”) Committee with substitute language limiting the annual filing requirements with the General Assembly to foundations that have an endowment fund with a market value exceeding $1.5 million per year. The substitute language also required foundations to disclose the identity of any donor unless the donor has requested that his or her identity not be publicly disclosed.
Senate Bill 333 was later amended on the Senate floor to limit the annual filing requirements to the UConn Foundation, only. The bill passed the Senate and House, as amended.
The bill was signed by the Governor on May 31, 2016.
SB 502; P.A. 16-3 (May 2016 Special Session). AN ACT CONCERNING REVENUE AND OTHER ITEMS TO IMPLEMENT THE BUDGET FOR THE BIENNIUM ENDING JUNE 30, 2017.
To the extent that Senate Bill 502 removes the FOI Commission, Office of State Ethics (“OSE”) and State Elections Enforcement Commission (“SEEC”) from the Office of Governmental Accountability (“OGA”), the passage of such bill is favorable.4
In 2011, the legislature passed Public Act 11-48, An Act Implementing Provisions of the Budget Concerning General Government, which consolidated nine agencies (including the FOI Commission, OSE and SEEC) into the OGA. The purported goals of the consolidation were to achieve greater savings and efficiency by merging the personnel, payroll, affirmative action, administrative and business office functions of the nine OGA agencies, and the information technology associated with such functions. A new position of executive administrator was created to oversee such limited functions. Ultimately, the consolidation did not achieve the cost savings and efficiency that was sought.
At this point in time, it is unclear who will handle the personnel, payroll, affirmative action, administrative and business office functions, including information technology for the FOI Commission, OSE and SEEC.
The bill was signed by the Governor on June 2, 2016.
BILLS PASSED - UNFAVORABLE RESULTS
SB 349; P.A. 16-33. AN ACT CONCERNING THE PRIVACY OF A MINOR.
Senate Bill 349 amends subsection (g) of section 29-6d of the 2016 supplement to the general statutes concerning the disclosure of certain records created by a police officer using body-worn recording equipment.5
Under current law, images of certain delineated occurrences or situations captured by body-worn recording equipment are not deemed to be public records for purposes of disclosure under the FOI Act.6 Senate Bill 349 removes the language regarding whether such images are “deemed” to be public records, and provides that such images are confidential and not subject to disclosure. In addition, under current law, records capturing the following images are subject to disclosure except to the extent that disclosure of such records could reasonably be expected to constitute an unwarranted invasion of personal privacy: (1) the scene of an incident that involves a victim of domestic or sexual abuse, or (2) a victim of homicide or suicide or a deceased victim of an accident. Senate Bill 349, as passed, limits this provision to protect only the victim’s (not another person’s) personal privacy from an unwarranted invasion.
Senate Bill 349, as passed, also makes body camera recordings of a minor confidential, except if (1) the minor and his or her parent or guardian consent to disclosure, (2) a police officer is the subject of an allegation of misconduct made by the minor or his or her parent or guardian and the person representing the accused officer in an investigation requests disclosure for the sole purpose of preparing a defense, or (3) a person is charged with a crime and his or her counsel requests disclosure of the recording for the sole purpose of assisting in such person’s defense and the discovery of such record as evidence is otherwise discoverable.
The bill was signed by the Governor on May 26, 2016.
SB 368; P.A. 16-213. AN ACT CONCERNING THE INSURANCE DEPARTMENT'S MARKET CONDUCT AUTHORITY AND DATA CALL CONFIDENTIALITY, AUTHORIZING MULTISTATE HEALTH CARE CENTERS IN CONNECTICUT, ELIMINATING A HEALTH CARRIER UTILIZATION REVIEW REPORT FILING REQUIREMENT, AND CONCERNING LICENSURE OF SINGLE PURPOSE DENTAL HEALTH CARE CENTERS.
Senate Bill 368, as originally raised, pertained to the licensure of single purpose dental health care centers. The bill, however, was subsequently amended by the Senate to include language making certain documents pertaining to market conduct examinations confidential and not subject to subpoena. Specifically, section (1)(g) of the bill provides:
(g) All workpapers, recorded information, documents and copies thereof produced by, obtained by or disclosed to the commissioner or any other person in the course of an examination made under the authority of this section shall be confidential, shall not be subject to subpoena and shall not be made public by the commissioner or any other person, except to the extent provided in subsection (f) of this section. The commissioner may grant access to such workpapers, recorded information, documents and copies to the National Association of Insurance Commissioners, provided said association agrees, in writing, to hold such workpapers, recorded information, documents and copies thereof confidential.
Notably, similar confidentiality provisions were introduced in Senate Bill 159, which made it out of committee. Senate Bill 159, however, was recommitted to the Insurance Committee on May 3, 2016.
Senate Bill 368 passed the General Assembly, as amended, and was recently signed by the Governor.
HB 5180; P.A. 16-45. AN ACT CONCERNING CONCRETE FOUNDATIONS.
House Bill 5180, as passed by the General Assembly, contains two similar provisions limiting disclosure of certain records relating to claims of faulty or failing concrete foundations in residential buildings. Significantly, however, the provisions are inconsistent with respect to whether executive branch agencies must maintain the records as confidential or whether executive branch agencies may disclose such records under the FOI Act. Specifically, section 4 of HB 5180 requires that any documentation be maintained as confidential:
Any documentation provided to or obtained by an executive branch agency, including documentation provided or obtained prior to the effective date of this section, relating to claims of faulty or failing concrete foundations in residential buildings by the owners of such residential buildings, and documents prepared by an executive branch agency relating to such documentation, shall be maintained as confidential by such agency for not less than seven years after the date of receipt of the documentation or seven years after the effective date of this section, whichever is later.
Whereas, section 5 of HB 5180 amends section 1-210(b) of the FOI Act to include a new permissive exemption:
(28) Any documentation provided to or obtained by an executive branch agency, including documentation provided or obtained prior to the effective date of this section, relating to claims of faulty or failing concrete foundations in residential buildings by the owners of such residential buildings, and documents prepared by an executive branch agency relating to such documentation, for seven years after the date of receipt of the documentation or seven years after the effective date of this section, whichever is later.
House Bill 5180 was signed by the Governor on May 25, 2016.
BILLS DEFEATED - FAVORABLE RESULTS
SB 253, AN ACT CONCERNING POLLING PLACES FOR PRIMARIES.7
Senate Bill 253 permitted registrars of voters of a municipality to reduce the number of polling places for primaries as a cost saving measure. The bill further provided that if a candidate objected to a change in polling place(s), the candidate must provide written notification to the Secretary of State, who must keep the objection confidential. The bill also prohibited the identification of the candidate in the Secretary of State’s notice of objection provided to the registrars of voters and each candidate seeking nomination to an office in the primary. The FOI Commission questioned the purpose of such confidentiality provisions where that opposition significantly affects the conduct of an election and contended that such provisions compromise the democratic process, including the principles of open government, where there is no apparent need to do so.
Senate Bill 253 made it out of the Government Administration and Elections (“GAE”) Committee with substitute language, but was subsequently recommitted by the Senate to the committee.
SB 340, AN ACT EXTENDING THE TERMS OF CERTAIN MEMBERS OF THE FREEDOM OF INFORMATION COMMISSION.
Senate Bill 340, which was unanimously voted out of the GAE Committee, changed the terms of the legislatively appointed members of the FOI Commission from two years to four years.8 In 2011, the number of FOI Commissioners increased from five to nine.9 The four new commissioners (appointed by the legislature) are currently appointed for two-year terms. The Commission proposed to amend such two-year appointments to correspond with the four-year appointments served by the five commissioners who are appointed by the Governor.
Unfortunately, the Senate passed the bill with a “strike all” amendment (LCO #4325) which did not amend the term length, but instead added two new commissioners to the FOI Commission, making it an 11-member Commission. The FOI Commission estimated the anticipated cost of the two additional commissioners to be between $12,000 and $15,000 per year – and urged House representatives to let Senate Bill 340, as amended, die on the House calendar. Fortunately, the bill was never taken up by the House.
HB 5501, AN ACT CONCERNING EXECUTIVE SESSIONS OF PUBLIC AGENCIES.
House Bill 5501 proposed to expand the ability of public agencies to meet in executive session. Specifically, House Bill 5501 proposed to amend §§1-200(6) and 1-231 of the FOI Act to eliminate the requirement that a public agency must convene in executive session for one of the five explicitly permitted purposes, only, before it received oral testimony or opinion from its attorney.10 If the bill passed, it would allow multi-member public agencies to discuss with their attorneys any legal matter behind closed doors resulting in significantly less transparency in government operations.
As reported by the news media, the City of Stamford requested that the GAE Committee raise the bill.11 No oral or written testimony was provided by the City at the public hearing. The Commission on Human Rights and Opportunities, however, did testify and submit a written statement in support of HB 5501. Opponents of the bill included the FOI Commission, CCFOI, CT Chapter of the Society of Professional Journalists and CT Common Cause, among others.
The bill was heard by, but did not make it out of, the GAE Committee.
HB 5512, AN ACT AUTHORIZING ADDITIONAL FEES FOR MUNICIPAL PUBLIC RECORDS REQUESTED FOR COMMERCIAL PURPOSES.
House Bill 5512 proposed to authorize municipalities to charge additional fees for public records requested for “commercial purposes.”
The Connecticut Conference of Municipalities (“CCM”) supported House Bill 5512, arguing that the bill would allow municipalities to collect fees that accurately reflect the time, effort and actual costs necessary to fulfill records requests that are used for commercial purposes. CCM appeared to be especially concerned with “vast public information requests, commonly referred to as ‘data mining’” which “information is subsequently sold and used as for-profit.”12
The FOI Commission recognized that municipalities have been recently confronted with requests from commercial enterprises where an agency’s compliance may consume limited office resources. However, the Commission had some serious concerns about House Bill 5512 and believed more study regarding fees was necessary. For example, House Bill 5512 permitted a municipality to enact a schedule of “reasonable” fees for records, but the bill did not specify who determines whether the schedule is reasonable. The bill also permitted a municipality to consider five factors in establishing fees; however, only two of the five factors were objective and quantifiable. In addition, the bill permitted each municipality to enact its own schedule which would result in inconsistent fees throughout the state.
Organizations such as the Home Builders & Remodelers Association of Connecticut, Inc. (“HBRA”), also opposed the bill because it would add costs to real estate and economic development activities which “often require applicants for various local permits to search and request documents from towns for items such as adjacent and neighboring land owners (for notice purposes), title searches, tax assessments, and possibly prior development applications on particular sites. Each of these document requests would be considered as ‘for a commercial purpose’ under the bill.”13
The bill did not make it out of the GAE Committee.
HB 5613, AN ACT PROHIBITING DISCLOSURE OF DATE OF BIRTH INFORMATION ON VOTER RECORDS.
House Bill 5613 provided that municipal registrars of voters must redact the dates of birth from voter records before disclosing such records, either to the members of the public or to other public agencies.
The Secretary of the State put forward the bill, arguing that the proposal would help curtail access to private citizens’ personal data and protect against identity theft.
The FOI Commission, SEEC and the Judicial Branch, among others, opposed the bill for various reasons. For instance, opponents argued that the dates of birth are necessary to determine voter eligibility and to guard against voter fraud. The bill would also impact SEEC’s ability to conduct investigations and the Citizens’ Election Program’s grant application process, as well as the Judicial Branch’s ability to summon jurors.
The bill did not make it out of the GAE Committee. Notably, a similar bill (HB 5616, discussed below) made it out of the GAE Committee with substitute language excluding the provisions concerning access to dates of birth on voter records.
HB 5616, AN ACT CONCERNING NOTICES AND PUBLIC INFORMATION.
House Bill 5616 consisted of three sections. Section 1(a) of the bill prohibited public agencies from disclosing the month and day of any individual’s date of birth on any list prepared under Title 9 of the general statutes which is provided pursuant to a request under the FOI Act. The arguments for and against this proposal were similar to those expressed concerning House Bill 5613 (discussed above). The State Librarian also expressed concern that the redaction process would be time consuming and would place an enormous burden on the State Archives staff if they have to redact the dates of birth from historical voting records archived at the State Library. Section 1(b) of the bill proposed to preclude any person who received a list prepared under Title 9 of the general statutes pursuant to the FOI Act from further disclosing information contained on the list, including publishing such information on the Internet. The FOI Commission and CCFOI opposed section 1(b) of the bill on the grounds that it was both unconstitutional (i.e., violated the First Amendment) and unenforceable. The State Librarian was also concerned that the term “published” was undefined in the bill and would mean that the State Library would not be able to digitize any election records and place them online to be accessed by researchers. In addition, CCM was concerned that municipalities would be held responsible if the requested information was further published and posted on the Internet.
Section 2 of the bill addressed the requirements to file and post public agency meeting schedules, agendas, notices and minutes, that are contained in the FOI Act. Although the FOI Commission noted some discrepancies contained in the bill as drafted, the Commission did not oppose this section as it believed it would ultimately lead to greater transparency.
The Commission did not take a position on section 3 of the bill which would allow for notice of special and reconvened sessions to be sent electronically.
House Bill 5616 made it out of the GAE Committee with substitute language removing sections 1 and 3. The bill passed the House, but was never taken up by the Senate.
BILLS DEFEATED - UNFAVORABLE RESULTS
SB 104, AN ACT ESTABLISHING THE STATE CIVIC NETWORK.
Senate Bill 104 proposed to establish a State Civic Network (“Network”) to provide television and Internet coverage of legislative, executive and judicial proceedings. Such coverage would be available live, and would be archived for future viewing on-line through streaming. In addition, the Network would be managed by an independent, non-profit organization funded by cable subscribers, rather than by the state, thus saving millions of dollars of public funds.
In addition to the savings, the Network would have provided for greater transparency and would promote civic engagement in government. Supporters of the bill included the FOI Commission, CT Chapter of the Society of Professional Journalists, CCM, CCFOI, Connecticut Foundation for Open Government, Inc., Office of Consumer Counsel, CT Community Nonprofit Alliance and AARP, among others.
Significant opposition to the proposal came from AT&T, Frontier Communications, Verizon, New England Cable & Telecommunications Association, Inc., and Satellite Broadcasting & Communications Association of America, among others. Opponents of the bill argued that the bill imposed a new “discriminatory tax” on CT television customers to fund the Network, and violated the Federal Communications Act by requiring cable operators to carry specific channels or networks.
Although the bill made it out of the GAE Committee (with substitute language) and was placed on the Senate calendar, it was ultimately recommitted to the GAE Committee.
SB 203, AN ACT CONCERNING AMERICAN LEGION STATE FUND COMMISSION TRANSPARENCY.
The bill proposed to implement a recommendation of the Auditors of Public Accounts that was included in their 2015 Annual Report to the General Assembly and would have increased access to public records. The Auditors’ recommendation would explicitly subject the records of the American Legion State Fund Commission to disclosure under the FOI Act. In their 2015 annual report, the Auditors opined that “the State Fund Commission is essentially functioning as a public agency since it exists solely for the public purpose of administering a function that had previously been regarded as belonging to that of a state agency.”14 The FOI Commission, State Auditors and American Legion all supported the bill.
Senate Bill 203 made it out of the Veterans’ Affairs and GAE Committees, but died on the Senate calendar.
HB 5247; P.A. 16-85. AN ACT IMPLEMENTING THE RECOMMENDATIONS OF THE AUDITORS OF PUBLIC ACCOUNTS AND REPEALING A PROVISION CONCERNING STATE AGENCY REPORTING OF CERTAIN CONTRACTOR INFORMATION. (VETOED BY THE GOVERNOR)
House Bill 5247, as passed by the General Assembly, makes numerous changes to statutes concerning government administration including, but not limited to, the administration of audits of foundations established in support of public institutions of higher learning. Among other changes, the bill adds a provision which will ensure that the foundations’ audits, which are already statutorily mandated (see Conn. Gen. Stat. §4-37f), are actually conducted. Specifically, in the event that a foundation which should have had an audit conducted fails to do so, the bill would give the Auditors of Public Accounts the authority to conduct a full audit of the books and accounts of the foundation. This provision adds to the transparency and accountability already set forth in statute, and provides an assurance that foundations which support public agencies will be audited on a regular basis.
On June 2, 2016, the Governor vetoed HB 5247 (P.A. 16-85).15 Subsequently, during a special session on June 20, 2016, the House reconsidered and overrode the Governor’s veto. The Senate did not take up the veto. Accordingly, the Governor’s veto of HB 5247 (P.A. 16-85) was sustained.
HB 5499, AN ACT CONCERNING THE PRESERVATION OF HISTORICAL RECORDS AND ACCESS TO RESTRICTED RECORDS IN THE STATE ARCHIVES.
House Bill 5499 required the preservation of records of historical value and lifted restrictions on access to government and medical records after a certain amount of time has passed.
Specifically, with respect to medical records, House Bill 5499 lifted any prohibition against viewing a medical record, as defined in 45 CFR 160.13, that has been deposited in the state archives, 50 years after the death of the individual who is the subject of such record.
Opponents of the bill, which included the Department of Mental Health Addiction Services, Connecticut Legal Rights Project, Inc., North Central Regional Mental Health Board, Inc., National Alliance on Mental Illness and Mental Health Connecticut, argued that requiring disclosure of such medical records discriminated against those individuals receiving public services (compared to those receiving care in the private sector), and that disclosure of such records would invade the privacy of the deceased individuals and their family members, among other reasons. Some suggested redacting the names (and other identifying information) of the deceased individuals and seeking consent from the deceased’s family members prior to disclosing the records.
Supporters of the bill, which included the FOI Commission, CCFOI, the CT Historical Society and the State Library, maintained that government and medical records deposited at the state archives have significant historical and research value, and that the preservation and availability of such records, after statutorily prescribed periods of time have passed, increases transparency in government. The bill’s supporters also argued that the language of the bill is consistent with the National Archives standard (i.e., data disclosed after 75 years) and mirrors the 2013 changes made by the United States Department of Health and Human Services to the Health Insurance Portability Accountability Act (“HIPPA”) (i.e., removed prohibition of access to medical records 50 years after the death of an individual who is the subject of such record).
House Bill 5499 made it out of the GAE Committee as originally raised, but was never taken up by the House.16
NEUTRAL BILLS – DEFEATED
SB 464, AN ACT ESTABLISHING THE HARTFORD FINANCIAL SUSTAINABILITY COMMISSION.
Senate Bill 464 proposed to establish a new commission to review the financial affairs of the City of Hartford and to take all necessary actions in order to address the city’s projected deficits and to restore financial stability. Although the FOI Commission did not take a position as to the merits of Senate Bill 464, the Commission expressed that in order to ensure that there would be transparency and accountability in the operations of this new Financial Sustainability Commission, the proposal should be amended to clarify that such entity would be subject to the open meetings and public records provisions set forth in the FOI Act.
The bill did not make it out of committee.
1 See SB 501, An Act Adjusting the State Budget for the Biennium Ending June 30, 2017 (May 2016 Sp. Sess., P.A. 16-2); SB 502, An Act Concerning Revenue and Other Items to Implement the Budget for the Biennium Ending June 30, 2017 (May 2016 Sp. Sess., P.A. 16-3).
2 Similar bills were introduced during the 2014 and 2015 legislative sessions. See e.g., 2014 legislative session (HB 5127, not voted out of committee); and 2015 legislative session (HB 6903, SB 230 and HB 6813 were heard by the Government Administration and Elections Committee and Higher Education and Employment Advancement Committee, respectively, but never made it out of such committees).
3 A similar bill was heard by, but did not make it out of, the Government Administration and Elections Committee. See SB 440, An Act Requiring the Disclosure of Certain Records of the Foundation of the University of Connecticut.
4 See sections 67 through 74 and section 210 of SB 502.
5 Subsection (g) of §29-6d of the 2016 supplement to the general statutes codified the new language set forth in section 7(g) of HB 7103, An Act Concerning Excessive Use of Force (June 2015 Sp. Sess., P.A. 15-4).
6 Under current law, no record created using body-worn recording equipment of the following occurrences or situations shall be deemed a public record: (1) a communication with other law enforcement agency personnel, except that which may be recorded as the officer performs his or her duties, (2) an encounter with an undercover officer or informant, (3) when an officer is on break or is otherwise engaged in a personal activity, (4) a person undergoing a medical or psychological evaluation, procedure or treatment, (5) any person other than a suspect to a crime if an officer is wearing such equipment in a hospital or other medical facility setting, or (6) in a mental health facility, unless responding to a call involving a suspect to a crime who is thought to be present in the facility.
7 Similar confidentiality provisions regarding objections to changes in polling places have been taken up by the General Assembly over the past few years. See e.g., 2012 legislative session (P.A. 12-73, vetoed by Governor); 2013 legislative session (SB 778, died on the Senate calendar; and HB 6427, not voted out of committee); and 2015 legislative session (SB 848, not voted out of committee).
8 The same proposal was heard by, and voted out of, the GAE Committee during the 2012 legislative session, but no further action was taken by the General Assembly. See HB 5463, An Act Concerning Requests for Records under the Freedom of Information Act and Appointments to the Freedom of Information Commission. The FOI Commission proposed the bill a second time in 2013, but it was never raised.
9 See P.A. 11-48, An Act Implementing Provisions of the Budget Concerning General Government.
10 Under current law, a public agency may invite its attorney into an executive session to receive the attorney’s oral testimony or opinion, if such executive session is convened for discussion of one of the following purposes: (1) certain personnel matters, (2) certain real estate matters, (3) matters concerning security or deployment of security personnel, (4) strategy and negotiations with respect to pending claims or pending litigation, and (5) any record that is exempt from disclosure, including records of attorney-client privileged communications. See Conn. Gen. Stat. §§1-200(6) and 1-231.
14 See Auditors of Public Accounts 2015 Annual Report to the Connecticut General Assembly (page 27).
16 A similar bill made it out of the GAE Committee during the 2014 regular session with an amendment requiring that the deceased individual’s name, address and social security number be redacted before the records were released. See HB 5124, An Act Concerning the Preservation of Historical Records and Access to Restricted Records in the State Archives. The 2014 bill was never taken up by the House.