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Freedom of Information laws dissected at Norwalk non-meeting

Freedom of Information Commision Public Information Officer
Freedom of Information Commission Public Information Officer Tom Hennick speaks to the public Wednesday in Norwalk.

NORWALK, Conn. – The differences between meetings and “non-meetings” were examined Wednesday in a forum – meeting? – that featured a little bit of play acting and some interesting storytelling.

Tom Hennick of the Freedom of Information Commission covered “silly misconceptions” of what FOI can do, touched on the difference in the mindset post-Watergate versus the mindset of the current, post 9/11 era, and the ins and outs of governmental secrecy – executive sessions – in a forum organized by the League of Women Voters.

Hennick told about 15 people that if he had his way, Freedom of Information would actually be called Freedom of Access.

“One of the first problems that people have when they hear Freedom of Information is they believe it is about finding out anything they want whenever they want,” Hennick said. “… It’s not about answering questions. Under this law, public agencies are not required to answer questions. It’s only about access to documents that exist and meetings that are going on.”

One woman called the Freedom of Information Commission to ask how she could get tickets to “Mary Poppins,” he said.

“They think we are the Freedom of Information Kiosk of Connecticut,” he said.

The Freedom of Information Act was the brainchild of Gov. Ella Grasso 39 years ago because she was “extremely distressed by Watergate and the specter of government run amuck,” Hennick said. Now there’s a reversal of that Watergate mindset in the wake of 9-11 as fears for security have “sort of taken us back in another direction,” he said.

“We’re chipping away at open government,” he said, after saying that, when he started in FOI, there were 20 exemptions to what can be released in a public document, and now there are 27.

There are five specific reasons for executive sessions, he said:

• Personnel matters

• Pending claim or litigation

• Sale of lease or purchase of property

• Security

• To talk about documents that the board believes are exempt from disclosure

That last one is a “catchall,” he said.

A person in the audience commented that it had so much potential to be abused that it invalidates FOI.

“Except that they have to show the record is exempt,” Hennick replied. “They make the call, you challenge them. The Freedom of Information Commission looks at it, says that executive session was improper, you have to recreate minutes.”

Elaine Littman asked what leverage the FOIC has. Hennick said it can invalidate what happened in a meeting or levy a fine of $20 to $1,000 for not providing a document. The fine would be levied against the city employee personally, not the city, he said.

There are different rules for routine meetings and what are known as “special meetings,” he said. There can be no variance from the agenda for a special meeting, and the government has more time to create minutes from a special meeting, he said.

The only thing required of minutes is a record of who voted for what, he said. “I always recommend that you put in a little more,” he said.

The fact that meetings are videographed or recorded does not negate the need to have minutes, he said.

There are gatherings to which FOI rules do not apply, such as a collective bargaining session, Hennick said. People have taken to calling those non-meetings, he said.

There’s a third type of meeting – that called for an emergency. No notice is necessary, Hennick said.

That led to a story. Six or seven years ago, a Ridgefield employee thought he was going to be the next fire chief and went around town telling everyone, Hennick said. The first selectman informed the man that he wasn’t going to be the chief and got screamed at, with curse words, Hennick said. But the man was told he could be the interim chief – until news of the screaming got around town and people were upset about the insubordination, Hennick said.

The first selectman called an emergency meeting on a Saturday morning to discuss the matter, and it was decided that the man would be fired. Someone went and got him; informed that he was going to be fired, the man replied, “You can’t fire me, I quit,” according to Hennick.

He thought it over, though, and filed a Freedom of Information complaint, challenging whether the meeting qualified as an “emergency meeting” under FOI. The commission said it did not, which invalidated the resignation. Ridgefield appealed. The Connecticut Supreme Court backed up the commission.

Bottom line: Ridgefield paid the man in last spring, Hennick said.

“The guy they hired to fill the job, not him, was retiring, and guess whose name was on the list (to replace him)? They didn’t know what to do with him so they finally paid him off,” Hennick said. The upshot was, “They had six years of legal fees, six years of bickering. How much back pay did they give him? … It was a mess. If they had waited 24 hours and noticed the meeting, that portion of their issue would not have happened.”

Another story involved a citizen who wanted to know if she could request the evaluations for her child’s teacher. Hennick, who was in his first week on the job, said yes, but was corrected by a co-worker. Although the FOIA says that type of record is public, Connecticut has a law saying that teacher evaluations are not. Federal and state laws trump FOI, he said.

“You’ve got to know what they are if you’re going to be involved in a request for records. … You don’t want to spin your wheels, you don’t want to bang your head against the wall if you are asking for records you can’t have,” Hennick said. He stressed that anyone with a question should call the FOIC at (860) 566-5682 or email [email protected].

A city employee can claim invasion of privacy, but the standard is if it is “highly offensive and not a matter of public concern,” Hennick said.

Hennick also had Diane Cece and Deb Goldstein perform, each playing a part in a skit about a citizen trying to get information from the zoning office in “Not So Pleasantville.” In one skit, the city employee was over the top wrong, and in the other it was the citizen who was at fault.

Those are shown below.

Cece asked about meetings held by email, meaning those on a board or commission discuss the issue via email and everything is decided before the meeting happens, out of view of the public. Hennick said emails and other forms of electronic communication can be used to disseminate information but they cannot be used to deliberate a decision.

Cece asked how long the city has to respond to a request. The legal phrase is “promptly,” which means without undue delay, Hennick said. “You have to be able to determine what is reasonable,” he said, explaining that things may need to be redacted or an employee might be on vacation.

While the legislature told city governments in 2008 that agendas must be online if possible – at that time not every town had a website – the law was quickly overturned under Gov. Jodi Rell in what Cece called an “under the radar” way.

Hennick said it was part of a bill eliminating unfunded mandates. Diane Lauricella, who ran the forum, suggested that people ask those running for office this fall if they would reinstate that provision.

In closing the forum, Lauricella read statements from Mayor Harry Rilling and Deputy Corporation Counsel Jeffry Spahr. Rilling was out of town, she said, and unable to greet people attending the forum, but promised that he would tolerate nothing less than an open and transparent government and to take all complaints seriously.

Spahr also could not attend but said that people often ask city officials to do a search on property to see if the owner has all the permits they need.

“Under Freedom of Information that staff person is not required to collate and do research,” Lauricella said. “The majority of staff people will help us also because they know the files, but it’s something that is not required under Freedom of Information.”

 

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