Working Together

As the summer (and your vacation) becomes a distant memory, and the days get shorter and colder, I’ll bet you have had passing thoughts about changes to Connecticut’s Freedom of Information Act’s (“FOIA”), especially in light of rumors of possible significant revisions during last spring’s legislative session.  Here is a listing of what is new and what (mercifully) was not enacted by our legislature.    

WHAT IS NEW WITH THE FOIA?

Increased Penalties When One “Messes Up.” For years, the Freedom of Information Commission (“FOIC”) was empowered to impose a maximum fine on public officials of $1,000 in situations where the FOIC found that the denial of FOIA rights was “without reasonable grounds.”  Public Act 23-200, which takes effect on October 1, 2023, increases the maximum fine from $1,000 to $5,000.  Public Act 23-200 further authorizes the FOIC to issue fines against public officials where the FOIC finds that a public agency is engaging in 1) “a practice or pattern of conduct that constitutes an obstruction of any right” conferred by the FOIA, or 2) “reckless, willful, or wanton misconduct” in delaying or denying responses to public records requests.  In addition, the FOIC is now broadly empowered to order such relief as it determines is appropriate to rectify any such obstruction or misconduct and deter a public agency from violating the FOIA; the FOIC may also seek an order from the courts requiring the public agency to comply with FOIC orders. 

So, Why Is This Important?  Unlike most situations, in which public officials (whether public agency employees or board/commission members) are indemnified from personal liability, fines may have to be paid by officials responsible for FOIA violation out of their own pockets; indeed, indemnification by a public agency of offending agency members’ or employees’ FOIA fines may be prohibited by law.  As such, it is incumbent upon public officials to act in good faith, and also to learn from (and not repeat) any mistakes that they make, to avoid incurring the increased wrath of the FOIC.

Website Posting of Board of Education Agendas and Meeting Documents. One of the new legal requirements imposes a burden specifically on school boards.  Effective July 1, 2023, Public Act 23-160 expressly required any board of education conducting a regular or special meeting 1) to make available for public inspection the agenda for the meeting, along with “any associated documents that may be reviewed by members of the board at the meeting,” and 2) to post such agenda and documents on the district’s website.  Previously, agendas only had to be posted online for either special or remote/hybrid meetings, but posting is now required for ALL school board agendas. The requirement of having “associated materials” available to the public prior to the meeting (and posted online) would clearly not apply to records that are exempt from public disclosure, but it basically requires that traditional “board members’ packets” be produced/be available in advance to the public at large.

So, When Must the School District Post These Materials Online?   Good question.  The new law does not specify when (and how much in advance of the meeting) “board member packet” documents must be posted.  In addition, the law also does not address unique circumstances where the materials may not have been available or even existed prior to the meeting. Simply put, you should post these materials as soon as reasonably possible.

IT COULD HAVE BEEN (ARGUABLY) WORSE: WHAT DID NOT PASS

Remote Meetings and Board Member Participation: House Bill 6906 would have required any board member participating remotely in a meeting to participate only “by means of electronic equipment that is capable of transmitting video of such member.”  As this bill did not pass, board members may still be able to participate in a remote meeting even if they do not have (or do not choose to utilize) video technology, provided that their telephonic/audio technology provides “real-time public access” and permits the public to monitor the member’s participation, subject to any board bylaws.  

Public Employee Addresses (and Notice to Public Employees of FOIA Requests): Most residential addresses of public agency employees are NOT exempt from disclosure, and must be provided to members of the public.  Senate Bill 1157 would have expanded the current limited exemptions so as to make ALL public employee addresses exempt from disclosure.  In addition, this bill would have required public agencies to provide advance notice to any employee whenever there is a “mass request” (i.e., a request concerning 50 or more employees) before an agency complies with a FOIA request.  However, Senate Bill 1157 died in the closing days of the legislative session.

Public Comments. House Bill 5796 would have amended the FOIA so as to require public agencies to have public comment periods at all of their regular and special meetings.  As this bill did not pass, the decision as to whether to have public comments at board meetings remains a local decision.

Please contact Mark Sommaruga or any of Pullman & Comley's Labor and Employment Law attorneys should you have any questions.

Please note: this post is adapted from an article written by the author for the September 2023 edition of the CABE Journal