Education Law Notes  

Do We Really Have To Deal With All of These FOIA Requests (And Are We Obliged To Deal With “Vexatious Requesters”)?   

As an attorney representing school districts and other public agencies, I often hear from folks who are frustrated with being deluged with constant requests, often made by the same local “gadfly,” for records or even “information” under Connecticut’s Freedom of Information Act (“FOIA”).  While I feel your pain, here are some answers (some you may not like) with respect to your obligations in dealing with these FOIA “frequent flyers.”

 First, some good news.  School districts often get inundated with self-styled FOIA requests that they answer questions or provide “information” (as opposed to just seeking records).  Notwithstanding its title, the FOIA does not require school districts to respond to written questions or information requests (or to even create documents).  The only requirement under the FOIA is that the district permit the inspection or copying of records (whether electronic or paper) that already exist.

What about “burdensome requests?”  Sorry, but the FOIA requires school districts to comply with even broad requests for specific records.  While the burdensome nature of a request may excuse a school district from immediately having to comply with a request and get the documents ready in a proverbial jiffy, it is still obligated to diligently search for (and provide, if not exempt from disclosure) the requested records, even if the search is time-consuming.  Connecticut’s Freedom of Information Commission (“FOIC”) believes that while complying with the FOIA is not your only job duty, it is at least one of your job duties.

Do I have to provide the records if the person already has them?  Sorry, but the right to copies of records may exist even for those who may already have those same records.  The FOIC has found that even if an FOIA requester has previously received a copy of a record, it does not necessarily relieve a district of its obligation to produce a copy when it is requested (again), although it could again charge for the cost of the additional copies.

What if the person (repeatedly) files baseless complaints with the FOIC? Can we avoid the time and cost of defending ourselves against what may be a frivolous case?  The FOIA provides a means for a public agency to request that the FOIC not schedule a hearing and instead dismiss a case where 1) even if one accepted as true all of the allegations contained in the complaint, there has been no violation of the FOIA, or 2) the agency has merely committed a “technical violation” of the FOIA “that constitutes a harmless error.”  The FOIA further provides that the FOIC’s executive director (subject to the approval of the full FOIC) need not schedule a hearing if a complaint 1) presents a claim beyond the FOIC's jurisdiction; 2) would “perpetrate an injustice”; or 3) would constitute an abuse of the FOIC's “administrative process.”  See Connecticut General Statutes §1-206(b)(2) and (3).  The FOIC can consider the complainant’s prior communications with your district (and the FOIC itself) in making this determination.

In reality, the FOIC has set a high bar for dismissing cases without scheduling a hearing.  Most of these cases involve “serial” filers, who have filed literally hundreds of (often duplicative) FOIC complaints, or where a complaint on its face has no merit (for example, if clearly time barred, or seeking records clearly not subject to disclosure).  However, requesting such a dismissal is still an option for the most egregious cases.

Can we stop all of these requests in the first place?  Good news (in theory)-the FOIA was amended in 2018 so as to establish a procedure under which public agencies can petition the FOIC for relief from “vexatious requesters.”  The petition must detail the conduct which the public agency alleges demonstrates a vexatious history of requests, such as: 1) The number of requests filed and/or pending; 2) the scope of the requests; 3) the nature, content, language or subject matter of the requests or other communications to the agency from the requester (i.e., if he/she has been “abusive”); and 4) a pattern of conduct amounting to an abuse of the right to access under the FOIA or an interference with the agency’s operations.  If the FOIC hears and then votes to grant the petition, the relief may include an order that the agency need not comply with future requests from the requester for a period of up to one year.  At this point, a grand total of (drum roll, please) ONE such petition has been filed with the FOIC, and is still awaiting a ruling.  If and when the FOIC ever grants such a petition, we will be better able to determine how useful this new tool will really be and how high a mountain one must climb to get this relief.

These and other issues are discussed in more detail in Understanding Connecticut’s Freedom of Information Act, by Mark J. Sommaruga, Esq.  For a copy of this book, please click here.

Please note: this post is adapted from an article written by the author for the CABE Journal.