To The Editor:
A recent letter regarding the purported abuse of the Freedom of Information Act authored by the Deputy Corporate Counsel for Danbury asserts that FOIA was not "intended" to be used by attorneys to research potential lawsuits or as a form of discovery and suggests that the legislature limit the act to those requests "originally intended and appropriate for the citizen public." The act is not and should not be limited in the manner attorney Laszlo Pinter proposes.
The preamble to the Connecticut Freedom of Information Act, as first passed in 1975, states: "The legislature finds and declares that secrecy in government is inherently inconsistent with a true democracy…that the people in delegating authority do not give their public servants the right to decide what is good for them to know and that it is the intent of the law that actions taken by public agencies be taken openly and their deliberations be conducted openly and that the record of all public agencies be open to the public except in those instances where a superior public interest requires confidentiality."
The preamble speaks eloquently to Attorney Pinter’s central complaint. The only limitation on the production of public records is a superior public interest requiring confidentiality. Those superior public interests have been defined by the legislature in a series of exemptions that are further honed every year by the courts.
Danbury, like many local governments and agencies, has discovered the ramifications of being faced with its own documents that it might have avoided or delayed producing in discovery. Recently, a complaint regarding the city’s hiring practices was resolved when the plaintiffs’ motion for summary judgment was supported predominately by the minutes of public meetings, eligibility lists and notices of appointment derived from FOIA requests. The city’s sense of discomfort is actually a strong indicator that the purpose of the FOIA is being served. As the city publicly conceded in that case, officials had made errors in the administration of the civil service hiring process.
Attorney Pinter is correct that attorneys use FOIA for pre-litigation research. Federal Rule of Civil Procedure 11 and the Rules of Professional Conduct require an attorney to investigate the factual bases of her clients’ claims and may subject her to sanctions for submitting a pleading without having done so. Because the FOIA is not limited to matters relevant to a particular claim, an attorney may explore the viability of a number of potential claims and discard those that are not supported by the public records. Attorney Pinter also fails to consider that attorneys are themselves citizens who have a right to public information. The fact that a law firm is requesting public documents does not make the request improper or outside the scope of the FOIA.
Attorney Pinter’s second complaint is that information regarding public employees might be entitled to greater protection in another forum or under a different statute, and thus, accessing that information through FOIA is improper. The Connecticut Supreme Court has addressed this argument repeatedly and rejected it each time, saying consistently that, "when a person accepts public employment, he or she becomes a servant of and accountable to the public. As a result, that person’s reasonable expectation of privacy is diminished." Perkins v. Freedom of Information Commission, 228 Conn. 158 (Conn. 1993).
Equally important is the portion of the Perkins decision which determined that where a matter is not of public interest, the employee may object to the production of medical or personnel records that would invade their personal privacy. Since 1993, FOIC hearing officers have heard hundreds of appeals and spent a tremendous amount of time evaluating each individual page and data point to determine whether the objecting party has met the test and the item should be exempt from production. Last year the commission rendered a 26-page decision in Maurer v Office of Corp. Counsel, Danbury (Docket No. FIC 2011-370), wherein the hearing officer analyzed over 1,800 pages to determine which pages and what information on those pages was exempt from production.
An agency may find that responding to requests under the Freedom of Information Act is time-consuming or puts its employees in the uncomfortable position of producing documents that show mismanagement or malfeasance by their day-to-day supervisors. However, that is a weak basis for limiting the FOIA to persons who are not disputing the actions of the agency, whether it be a personal dispute or on behalf of a client. The journalists, citizens and attorneys who make FOIA requests perform the beneficial function of discovering misconduct, advocating for change, and letting our government officials know that the public eye is open and watching.
Elisabeth Seieroe Maurer
Maurer & Associates