From time to time, Inside Investigator receives a tip asking us to look into something going on at the state or municipal level because private citizens have tried and failed to draw answers from elected officials. As media with a larger platform, these tips insinuate, we’re better positioned to force elected officials’ hands.

I don’t like these types of tips, not because it isn’t our job as local media to do precisely this, but because they shouldn’t be necessary.

But what makes me really angry is, often these tipsters are right.

Just recently, I filed a Freedom of Information Act (FOIA) request for a preliminary report conducted by an outside contractor for a municipal police department, as well as several communications from town officials who were referenced in the final version of the report, which had been released.

The request was denied almost instantaneously, citing FOIA’s preliminary drafts exemption, which allows preliminary notes and drafts to be withheld from disclosure “provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.” (emphasis added)

Now, any time an agency withholds documents or redacts information they’re supposed to cite the exemption they’re claiming and explain to you why they believe it applies.

But the preliminary draft exemption in particular requires public agencies to conduct a balancing test to determine that the public interest in withholding documents outweighs the public interest in disclosing them. The Freedom of Information Commission (FOIC) has issued a number of rulings stating this. They’ve also effectively said that if a public agency does not provide a rationale to a requester explaining why it’s in the greater public interest to withhold documents under the exemption, that balancing test hasn’t been performed.

I’ve run into this exemption a number of times–and in a number of situations where it’s been flagrantly improperly applied. I’ve spoken to FOIC staff about this exemption, who suggest that many times agencies see “drafts” in the statute and think that applies to any document that hasn’t been finalized or aren’t aware they need to provide a rationale to requesters.

So, here’s what I’m hear to tell you: if documents you’ve requested are held under the preliminary drafts exemption, push back. Explain that they’re required to provide you with a rationale for why there’s greater public interest in withholding documents and don’t be intimidated if public officials balk. The record is on your side. Don’t be afraid to (politely) reiterate that.

More than once, I’ve had records that were previously being withheld turned over after I’ve asked for an explanation of why there was greater public interest in withholding them.

Back to my request for the preliminary draft of the municipal police review report and associated memos… when I pushed on the rationale for withholding them, I was told the preliminary report had inaccuracies in it that were addressed by the final report. Fair enough. But when I asked why memos from local officials communicating about the reports were being withheld, I received basically the same response: because they discussed the preliminary draft of the report they were covered by the exemption.

That is, to the best of my knowledge, an overstep. But before I could decide whether this was a case worth taking to the FOIC, the town suddenly reversed itself and, in an email also sent to other media members, announced they had decided to release the records.

This is, all in all, a positive outcome. But it still makes me mad. Because it shouldn’t take media pressure for laws intended to make public information publicly available to be followed.

I speak from time to time with others in the state who proactively use FOIA and there is a fairly common belief–which I share–that certain agencies treat FOIA requests differently depending on who files them. If you’re media or from a certain nonprofit, your requests are probably going to be slow-rolled.

But, at the same time, FOIA in the state is so dysfunctional that the public frequently can’t get records without help.

Despite being at a disadvantage with certain agencies, Inside Investigator has had success moving requests along by publicly documenting steps agencies are taking to stymie transparency.

That’s an opportunity the broader public doesn’t have and part of why we receive so many tips and stories about FOIA issues.

Help us make the most of Sunshine Week 2025

Sunshine Week 2025 is March 16 t0 March 22. During that time, Inside Investigator will be highlighting FOIA in Connecticut. Have a story about a FOIA request? Looking for tips to more successfully file FOIA requests? Let us know how we can make our Sunshine Week coverage most effective by emailing katherine@insideinvestigator.org.

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