For the fourth consecutive year, the Freedom of Information Commission (FOIC) has submitted its recommendations for statutory changes to the Freedom of Information Act (FOIA). Most of the changes are technical in nature. While similar recommendations have been voted approvingly out of committee since 2022, none have successfully been enacted.
Dating back to 2022, the FOIC has asked the legislature to make six similar clarifying changes to FOIA language.
The first would remove a portion of statute that makes the FOIC responsible not only for conducting FOIA training for public agencies but also for training related to the state’s record retention laws, which fall under the authority of the Public Records Administrator, not the FOIC. Additionally, language in statute makes the FOIC responsible for training on rules that apply to smoking around public buildings.
Since 2022, the FOIC has asked the legislature to update the statute to remove language requiring them to conduct trainings on subjects outside their jurisdiction.
Another change, which the FOIC has asked for since 2022, would update the definition of a “hand-held scanner” to include modern technology. Currently, statute allows requesters to use a hand-held scanner, defined as a “battery operated electronic scanning device” to copy public records. The change the FOIC is seeking would add language to statute to clarify that hand-held scanners include devices like smartphones.
A third change would make clarifying changes to the use of the phrase “governmental function” as it applies to contracts with public agencies worth at least $2.5 million.
In 2001, the legislature passed a law that stipulated that when a public agency contracts with a private entity to perform a governmental function and that contract is worth at least $2.5 million, those records are subject to FOIA. The law was a response to a 2000 court ruling that found a company contracted to run the state’s automobile emissions testing did not fit the definition of a functional equivalent of a public agency and was not subject to FOIA.
However, the language has created confusion about whether it applies only to that section of statute, or more broadly as part of the functional equivalent test performed to determine whether private entities that carry out public functions are subject to FOIA.
Since 2022, the FOIC has submitted language that would clarify that the phrase “governmental function” only applies to the section of the statute dealing with contracts in excess of $2.5 million.
Other changes the FOIC has proposed include minor clarifying language changes relating to education records, electronic notices of special meetings for committee members, and who must be notified of appeals filed with the FOIC. All the proposed changes have been previously submitted to the legislature and approved by the Government Administrations and Election Committee (GAE) but have not been voted into law.
The FOIC voted to approve the suggested language to implement the six changes and submit it to the legislature during its January 8 meeting. Also during the meeting, commission members discussed a change in the committee that will review bills dealing with proposed changes to FOIA. While the GAE previously had jurisdiction over the FOIC and bills amending FOIA, the newly created Government Oversight Committee has been charged with overseeing the FOIC.
To date, only one bill affecting FOIA has been filed. SB 365, introduced by Sen. Rob Sampson, R-Wolcott, would exempt plans for single-family dwelling units from FOIA disclosure.
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