To The Editor:
A recent, interesting article by Law Tribune Senior Writer Thomas Sheffey sought to address an issue near and dear to at least one municipality, if not many others. The article ("Lawyers Using FOI Act To Help Win Cases," March 4) described and quoted lawyers in Connecticut singing the praises of the Freedom of Information law for purposes of assisting in litigation.
This commentary included the ease of using FOI to gain access to public records, the benefits to clients, the avoidance of other costs, and the potential to elicit information perhaps not otherwise available, as well as other indirect benefits, including benefits to (legal) business. However, what proponents fail to point out is something most municipal lawyers and officials inherently know, or have learned through hard experience, to wit:
The Connecticut Freedom of Information Act was intended to "open the public files" for the citizenry to gain access to information and records that were far more difficult to obtain prior to the law’s enactment, and to see their government in action. The law was never intended to serve the business purposes of the bar nor to serve as a primary function in accumulation of discovery in litigation, either planned or pending.
Court-authorized discovery serves that purpose, serves it well, and should be carefully distinguished for intended purposes. Our direct experience in Danbury has been to witness the abuse of the FOI law through frequent, excessive and unnecessary discovery requests, which force the unnecessarily rapid and time-consuming provision of records otherwise available through methods already established by the court system. It is extremely costly to the taxpayers and time consuming for officials, both of whom, in those circumstances, are essentially hired hands of the lawyers bringing, or contemplating bringing, their claims to court.
An even more sinister result of this process is that many records requested would, in another forum, really be sealed records. These records include medical information or other matters of personal privacy. It is serious indeed when, under the guise of an FOI request masquerading as pending litigation, records involving employees are demanded for release and the concomitant ensuing damage could be potentially devastating, without the protective barrier of the court. Remember, not all FOI requests are reviewed by city attorneys; indeed, most go directly to department personnel who may not be able to properly discern the differences and requirements.
Clearly, not all such FOI claims used in anticipation of or preparation for litigation are abusive or unwarranted, as sometimes another approach may be unavailable for some reason. Largely, however, these FOI requests are nothing more than the proverbial fishing expedition, and result in time being spent pursuing business benefit, while traditional and important city business fails to be served. Many times, lawyers using the FOI submit excessively broad requests, or frame them in ways that ask questions, an inappropriate and non-permitted use of the FOI law.
Clearly, in this municipal lawyer’s view, and because the courts have thus far failed to recognize this problem, the legislature should seriously consider an amendment to the FOI law distinguishing between FOI used for discovery purposes and that use originally intended and appropriate for the citizen public. Otherwise, the system will ultimately morph into a lawyer’s playground, resulting in significant costs and administrative burdens for the municipality.
How unseemly it is that municipal lawyers working for the municipal and the public good are, through the means described in the article, drawn, sometimes unwittingly, directly or indirectly, into claims against their own cities/towns. Adding insult to injury, they are using the taxpayer’s funds and time to do so.
The FOI law, now in place for 40 years, was designed to help the average citizen needing to connect with his government. It is now too often being used for purposes neither authorized nor contemplated, when other and better means of soliciting legal information have long been made available to achieve the business and legal goals of and for the Connecticut bar.•
Laszlo L. Pinter
Deputy Corporation Counsel