Last month, Inside Investigator went to Hartford to take the University of Connecticut (UConn) to task for its handling of a Freedom of Information Act (FOIA) request seeking records related to sexual misconduct.
We had two chief quarrels with their handling of the request:
- It took over a year for them to respond to the request. The first batch of records was produced only after we filed a complaint with the Freedom of Information Commission (FOIC), and as of the date of the hearing, responsive documents were still outstanding.
- In its initial response, UConn told us only that it had made redactions “to student and personal information.” FOIA requires that public agencies cite the exemptions they’re claiming. UConn only specified in followup communication, again after our complaint had been filed with the FOIC, that they were claiming exemptions under Family Educational Rights and Privacy Act (FERPA), which is incorporated into Connecticut’s FOIA, and a second exemption protecting students’ names and addresses from disclosure. Despite claiming two exemptions, they did not note in the documents which redactions were being claimed under which exemption.
Listen to the FOIC oral arguments:
At the hearing, UConn officials, unsurprisingly, contended they didn’t do anything wrong. But Inside Investigator was surprised when UConn argued that they treated a ‘supplemental’ release of records, provided in response to questions about missing attachments and documents, as a separate request.
Based on that claim, UConn objected to entering into the FOIC official record email communication where Inside Investigator asked for clarification about records, including attachments to investigation reports, which we believed were covered by the language of the initial request.
At no point, as UConn admitted during the hearing, did they notify us that they considered our ‘initial request‘ closed. In fact, they reopened it when we pointed it out without any comment.
According to UConn officials, they closed it because the content of the additional documents we asked them to provide was summarized within the reports they did turn over.
This argument didn’t appear to hold water with the hearing officer, who noted that Inside Investigator didn’t ask for summaries of records, we asked for records. UConn’s response to this was to note that there were “potentially” hundreds of records responsive to the request.
Here’s the thing: that could be true of any request. To expect a requester to know exactly what they’re looking for is absurd. While FOIA requests shouldn’t be filed blindly, they are often filed because a requester is aware something exists, but isn’t exactly sure of the form or extent of it. In this case, we were aware that there were cases of sexual misconduct at UConn. Finding out how many, who was involved, and their outcomes, was the point of our request. There was clearly a breakdown in accountability and transparency, even well before our FOIA was filed.
Under FOIA, if you ask for a record and it exists, public agencies are legally obligated to provide it, unless there’s an exemption that prohibits its release. Public agencies are not able to substitute their judgment about whether certain language contained within some responsive documents precludes them from releasing additional documents because it might be burdensome to do so.
But that’s exactly what UConn is claiming it has the ability to do in this case.
We knew documents were missing because what was turned over referenced them or indicated they were attachments. We asked UConn about missing documents because we wanted a complete record. UConn claimed that, due to the number of documents potentially responsive to the language of our request, summaries of documents are a fair substitute.
That’s an absurd standard.
Alternately, UConn could have communicated to us that they had identified a large number of responsive records and asked if we wanted to prioritize receiving specific types of records or records from particular cases. They also could have asked if all of the records they identified as responsive were what we were actually seeking.
They not only didn’t do that, they never communicated that they considered our initial request closed or that the second or third batches of records they released were, in their mind, responsive to a different request.
Many of the records we received came from UConn’s Office of Institutional Equity (OIE), which investigates the type of alleged misconduct at issue in this particular case. I have a pending request with UConn that’s aimed at OIE. The language in my initial request produced a huge amount of records that weren’t really what I was looking for and would have been burdensome for UConn to review.
As with our request for alleged sexual misconduct allegations, there’s no way I could have possibly known that. But, unlike our request for alleged sexual misconduct allegations, UConn notified me of the number of responsive records and that many of them were a hit to a keyword in an email signature that ultimately wouldn’t be of use or interest. So I worked with them to narrow the request.
Why they couldn’t apply this same standard of communicating about the status of the request or the number of responsive documents to our request for alleged sexual misconduct documents is baffling.
In their closing statements, UConn’s lawyer argued our request was “broad” and they couldn’t read our minds about what specific documents we were seeking. But no one is asking them to read our minds. If there was something unclear in the request, they could have communicated with us. They chose not to do this until a hearing for the complaint had been scheduled, and then argued that communications should not be discussed during the hearing because it was related to a separate request that we were never informed about.
Have your own frustrations about obtaining information through FOIA? Email katherine@insideinvestigator.org.
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