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FOIA: The Ongoing Fight for Freedom of Information

A fact you may not know about Gov. Ned Lamont: he started his career in the news industry. After serving as the president of his elite private high school’s student newspaper, Gov. Lamont began his career in 1977 as the editor of a weekly newspaper in Vermont.

However, Gov. Lamont has come a long way since his news media roots. As Governor, Lamont’s Administration has been engaged in legal battles against journalists seeking the release of information related to the handling of the COVID-19 pandemic. Lamont’s administration was recently found to have violated Connecticut’s Freedom of Information Act (FOIA) laws after his office failed to comply with a pandemic document request by the Associated Press for over two years. The vote by the Connecticut Freedom of Information Commission (FOIC) ruling that Gov. Ned Lamont’s office violated state open records laws was unanimous.

Following the FOIC ruling earlier this month, Gov. Lamont’s staff was ordered to attend mandatory training on the state’s FOIA laws. 

It’s not the first time the Lamont administration has made headlines for a lack of transparency. In July 2019, mere months into his governorship, the Department of Social Services (DSS) received the results of a survey that was conducted amongst its staff that revealed a “toxic” workplace environment. After DSS management didn’t release the results voluntarily, a DSS employee requested the results through a FOIA request.

Only after the DSS employee filed a complaint with the FOIC did the agency comply with the request, a year later. At the time of the survey’s release, DSS Commissioner Deidre Gifford sent an email to three other DSS leaders advising them that “the results were released to an individual under [FOIA] request,” and that survey was “of limited use because of its age,” the Hartford Courant reported at the time.

Such a comment raises the question of whether or not DSS intentionally delayed releasing the survey as long as it possibly could to dull its potential news value. 

It is the ability of government agencies to delay or ignore FOIA requests altogether, with little to no consequences, that have proponents of FOIA and government transparency declaring that the law is broken. With tensions surrounding FOI law mounting, a federal and state overhaul of the law could be seen in the near future.  

FOIA: The Ongoing Fight for Freedom of Information: A good idea

FOIA was originally championed by California Democrat Congressman John Moss in 1955 when he became the chairman of the House Government Operations Committee Special Subcommittee on Government Information. Moss set the expansion of government secrecy in his crosshairs after the Cold War Era Eisenhower Administration refused to hand over documents on the 2,800 federal employees who were fired for having communist ties. 

Moss received early support for government transparency from newspaper editors and journalists, but it would be years until he would find a Republican co-sponsor. Ironically, Moss would find his first Republican ally in Donald Rumsfeld, then just a young representative from Illinois. It took Moss 12 years and six congressional sessions to successfully get the bill through Congress.

Before the House voted on the bill, Moss appealed for his colleagues’ support:

“Our system of government is based on the participation of the governed, and as our population grows in numbers it is essential that it also grow in knowledge and understanding,” Moss said. “We must remove every barrier to information about—and understanding of—government activities consistent with our security if the American public is to be adequately equipped to fulfill the ever more demanding role of responsible citizenship.” 

The measure passed the House unanimously. 

A reluctant President Lyndon B. Johnson unceremoniously signed the bill into law at his Texas ranch on July 4th, 1966. Moss was not invited to attend. While President Johnson’s statement at the time of the signing focused mostly on the need for some degree of government secrecy and how the bill did not impair his office’s power to exempt information from disclosure, he wrote that he supported the spirit of the bill. 

“I have always believed that freedom of information is so vital that only the national security, not the desire of public officials or private collectors should determine when it must be restricted,” President Johnson said. “I signed this measure with a deep sense of pride that the United States is an open society.”

However, the bill did not initially function as its supporters had hoped and it wasn’t long until Congress heard testimony of bureaucratic resistance to FOIA. From 1972 to 1974, congressional hearings were held that uncovered significant weaknesses in the law. Excessive delays, expensive fees, and burdensome legal remedies for when agencies did not comply with the law made FOIA essentially unusable. 

After the Watergate scandal, Congress acted to give FOIA the teeth needed to force government agencies to comply. Congress amended the bill to include new requirements, timeframes, sanctions for wrongly withheld information and language waiving fees for journalists and public interest groups.

By this time, however, former supporter Donald Rumsfeld had become President Gerald Ford’s Chief of Staff and had turned coat on the Freedom of Information Act.

Rumsfeld and Antonin Scalia, then the head of the Justice Department’s Office of Legal Counsel, pushed President Ford to veto the amendments. Ford did veto the bill, saying that it would violate constitutional principles, jeopardize military or intelligence secrets and diplomatic relations and that the ten-day deadline was unrealistic. 

The House and Senate disagreed, nevertheless, and overrode his veto resulting in the FOIA law we know today. 

A year after Congress amended the federal FOIA, Connecticut enacted its own state law. Connecticut’s FOIA law stipulates that meetings of public agencies must be held in an open forum and that the records of public agencies are subject to disclosure and inspection by the public. 

However, state agencies routinely test the limits of their ability to withhold information from the public and the law offers those seeking transparency little recourse if the government fails to comply. Kevin Rennie, a local journalist with the Hartford Courant, has been sounding the alarm on the lack of government transparency for years. He said that the lack of transparency in local government starts at the top with Gov. Lamont.

“The governor’s attitude, his hostility toward open government and access to information has, like any virus, it has spread into other parts of this administration, Rennie said. “It’s very difficult to get documents.”

“I think the governor by in large, doesn’t really pay much attention to the agencies, but they pay attention to him, and they see that it’s fine,” Rennie said. “Drag your feet for two years, it’s fine. They follow his example, which is, I’m sure they’ve concluded, he doesn’t want information to be released.”

Beyond the effects that the Lamont Administration’s lack of transparency has on journalists’ goal of informing the public, Rennie added that it’s taking a toll on residents’ confidence and faith in government and democracy.

“Of course, it makes it more difficult for the public to get a clear view of what’s happening, but in addition to that, it feeds the plague of cynicism and suspicion that is eating away at our crucial institutions,” Rennie said. “I’m surprised that Governor Lamont has become, in many ways, the leader of this. It is in opposition to our general instincts about someone, so it’s very damaging. It is really impossible to believe that Ned Lamont was once in the newspaper business.”

However, in light of recent events, Rennie added that he wouldn’t expect Bob Stefanowski to be any better on the subject of transparency. Stefanowski has recently come under fire for refusing to reveal his business dealings with the Saudi Arabian Crown Prince Mohammed bin Salman. U.S. intelligence believes that Prince Mohammed gave the order to have Washington Post journalist Jamal Khashoggi murdered and dismembered in 2018. His body was never found.

Aside from the issue of government agencies making it difficult to obtain information the public has the right to access, FOIA law also has several exemptions on what can be obtained through FOI requests.

One such exemption has been subject to recent headlines when the personnel files for state employees named in a federal lawsuit were exempt from disclosure under Connecticut law. An FOI request was made by the Journal Inquirer after three Connecticut State Colleges and University (CSCU) executives, Andrew Kripp, Alice Pritchard and Robert Steinmetz were named in a discrimination lawsuit filed by Manchester Community College (MCC) CEO Nicole Esposito after CSCU officials attempted to fire her without reason. 

The lawsuit resulted in a taxpayer-funded $775,000 settlement for Esposito in August, but the Journal Inquirer’s request to view the defendant’s personnel files for any signs of involvement in systemic harassment was still denied. 

According to state law, whenever a public agency receives a request for records of its employees’ personnel or medical files and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency is required to immediately notify each employee. But, if there’s no reason to believe that’s the case, the agency must first disclose the records sought to whoever filed the request, then notify the employees of the request. 

In the case of the CSCU executives named in the lawsuit, one must assume that their personnel records did contain sensitive information, as each employee was given the option to deny the request, which all three choose to do. If not, CSCU would be in direct violation of the law and could be subject to penalties. 

However, according to Rennie, the penalties aren’t severe enough to prevent government shenanigans.

“[The agency] is ordered to turn the documents over, then it could be a ‘henceforth you must not do this again’, they can order training and they can levy a fine of up to a thousand dollars,” Rennie said. “It’s largely meaningless.”

The Journal Inquirer has filed a formal complaint with the Freedom of Information Commission seeking to force CSCU to turn over the files.

While the exemptions for FOIA are reasonable in theory, in practice, some have been abused. One such example is federal Exemption 5, or the shielding of draft government documents, records of sensitive deliberations before decisions are made, and government attorney-client deliberations from release. 

The exemption’s broad interpretation by government agencies has given Exemption 5 the reputation as the “withhold it because you want to exemption.” The Department of Homeland Security used the exemption the most of any agency by far in 2021. Out of the 72,111 total citings by all agencies, the DHS used Exemption 5 in response to 47,854 FOI requests. 

The exemption was the subject of a case before the Supreme Court last year, surviving by a 7-2 majority ruling. The opinion, authored by Justice Amy Coney Barrett, made it more difficult to require disclosure of draft documents under FOIA. Additionally, according to legal analysts, the ruling may lead to increased use of Exemption 5 by the federal government in order to withhold documents in civil litigation based on the deliberative process privilege which protects certain pre-decisional, internal agency information, such as recommendations and analysis from disclosure.

Although journalists and newspaper editors were Congressman Moss’ earliest allies in trying to get the FOIA passed and may be the demographic most associated with the law, they make up just a small fraction of those utilizing it. According to a 2017 study of FOIA request logs, businesses and individuals file the most FOIA requests, comprising 39 percent and 20 percent of all requests filed, respectively.

Law firms also filed their fair share, accounting for nearly 17 percent of requests. News media organizations only submitted about eight percent of all requests. The Department of Justice (DOJ) has long lamented how the FOIA functions. In a 1981 memo summarizing then-Assistant Attorney General Jonathan Rose’s testimony of the DOJ’s areas of concern regarding FOI law, the DOJ identified the use of FOIA as a litigation discovery tool as an issue.

“Such requests are often nothing more than attempts to circumvent the limitations of relevance and need imposed by applicable discovery rules, or, simply to harass the government,” the DOJ memo said. “A requester/litigant can, through FOIA, impose burdensome document production requirements which are, for good reason, impermissible under the applicable discovery rules.”

The DOJ also alleged that defense attorneys abuse the law by making requests just to stall court proceedings.

“There is considerable evidence that many in the private bar are aware of the potential for disruption and delay of litigation afforded by FOIA and deliberately use the Act to harass a prosecuting agency,” the memo said. “We do not believe that Congress intended FOIA to be so used as a means of disrupting law enforcement or avoiding the rules of discovery in judicial or administrative proceedings.”

Regardless of the DOJ’s disapproval of who is using the FOIA and to what ends, many say it is clear the law isn’t working for its intended purpose. President Obama said that “democracy requires accountability, and accountability requires transparency” and that FOIA “encourages accountability through transparency.” The Supreme Court has similarly stated that the law “defines a structural necessity in a real democracy.” 

However, the very people who do try to use the law to inform citizens and hold powerful public actors to account, namely journalists, often run into trouble using the FOIA for basic newsgathering and investigating. While the federal government processes hundreds of thousands of requests each year, tens of thousands still go unfulfilled. 

FOIA law mandates that the government responds to requests within 20 business days, however, such a quick turnaround time is a fantasy. In 2019, the average processing time for federal agencies varied anywhere from 31 business days to 882 business days. Some requesters wait years or even decades to have their request fulfilled.

Following Manchester Community College’s (MCC) denial of the Journal Inquirer’s FOIA request, local politicians weighed in on whether or not they see a need for potential changes to the law. House Majority Leader Jason Rojas (D-East Hartford) said that despite being public employees,  worker’s personnel files shouldn’t be made available to public scrutiny.

“I struggle with the notion that people’s personnel files should be made public, despite their standing as a public employee,” Rojas told the Journal Inquirer. “At the end of the day, they are workers and I think that they should expect some level of privacy as it relates to their work and their careers.”

Mike Savino, the President of the Connecticut Council on Freedom of Information, said that while there is sensitive information in public employees’ personnel files, exemptions to FOI laws should be limited and not interfere with the public’s right to know what is going on in their government.

“I understand that there will always be a conversation about exemptions in what information should be public, the personnel file, for example, somebody’s social security information is gonna be in there, there might be medical information that’s in there,” Savino said. “So I understand why exemptions exist, but I think they need to be very narrow.”

On the subject of the MCC lawsuit, Savino believes the public has the right to know if the state employees named in the lawsuit were involved in any harassment of Esposito. 

“I think certainly in this case, this is an exemption that is bad,” Savino said. “This is information the public deserves to know, and the exemption only exists because a class of employees doesn’t want it to be seen.” 

With long delays and exemptions making the law in its current form difficult to use, it appears that we could be approaching a watershed moment in government transparency. However, it’s not exactly clear the best way to make the law more functional for its intended purpose.

“The question I would have, and I’m always open to ideas, what is the solution? I would love to see more fines, but unfortunately, the [Freedom of Information] Commission has to be judicial with it,” Savino said. “Really the best way to make it move faster would be if the Commission had more staff, more capability to take cases faster. They used to be able to take cases a lot faster, and with budget cuts, it’s been slowed down.”

Sharing Rennie’s opinion that the punishments the FOIC can levy against state agencies that violate FOI law are “largely meaningless”, Savino thinks giving the FOIC the power to come down harder on those who do not comply with the law is a potential solution.

“The real problem is that state agencies know the process and they abuse it, and statutorily maybe we need to give the commission more ability to hold agencies accountable hold towns accountable, give them the ability to impose punishments when it’s not a matter of a disagreement, it’s a deliberate attempt to abuse the process.”

While modern-day proponents of government transparency are generally in agreement that the FOIA needs retooling, John Moss felt the same way before his death in 1997. During an interview with Michael Lemov, a former staffer who wrote the book People’s Warrior about the congressman, Moss was asked if he was satisfied with the FOIA. 

“No, I’m not satisfied,” Moss replied. “If you ask me if we’re better off now than in ’66, I’d say yes. If you ask me if we’re where we should be? Absolutely not. The battle will never end.”

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Tom Hopkins

A national, award-winning journalist from Bristol, Tom has a passion for writing. Prior to joining CII, he worked in print, television, and as a freelance journalist. He has taken deep dives into sexual assault allegations by Connecticut professors, uncovered issues at state-run prisons, and covered evictions in the New Britain Herald. He chose to focus on issues based in Connecticut because this is his home, and this is where he wants his work to make the greatest impact.

2 Comments

  1. Linda Dalessio
    November 7, 2022 @ 7:47 am

    Great article, having been on the receiving end of delays and dismissals of FOIA requests by Connecticuts current totalitarian government, FOIA laws need to have teeth through accountability. The Secretary of States office with their many attorneys and LEAD division are the worst. What on earth do they have to hide?

    Reply

  2. Michele Fischer-Paul
    November 9, 2022 @ 11:12 am

    Excellent article. I have also been on the receiving end of multiple FOIA denials with no explanation or reason. State agencies (ie:colleges etc) know how to “play the game” and not be transparent in disclosing information that is FOIA requested. The law protects the wrongdoers more than the victim or requestor. Lawsuits take time and money, which most individuals don’t have. Yet, state agencies have deep pockets to protect themselves. What good is a law that can’t be enforced? What recourse does an individual have when their rights to resources have been denied?

    Reply

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