A recent ruling from the Freedom of Information Commission (FOIC) affirmed that the legislature is subject to the Freedom of Information Act (FOIA) and rejected a novel argument from the Office of Legislative Management (OLM) claiming the Connecticut Constitution’s “Speech and Debate” clause exempts records from their office under legislative privilege.

At issue are records that John DiIorio requested from the Office of Legislative Management (OLM), an office within the legislature that provides administrative and operational support to lawmakers. Through the Freedom of Information Commission’s (FOIC) mediation process, DiIorio and OLM entered a settlement in August 2024 in an effort to resolve multiple requests. Under the settlement, OLM agreed to produce responsive records forming the basis of DiIorio’s complaint, search for additional records, and provide logs detailing any exemptions they were claiming.

DiIorio filed a complaint with the commission after OLM produced two separate logs for records that they were withholding.

While DiIorio later narrowed the scope of the exemptions he was challenging, OLM brought a novel argument to hearings over the contested records, claiming that every record they submitted to the commission for in camera review was exempt because of legislative privilege arising from the Connecticut Constitution’s speech or debate clause.

Like the federal Constitution, Connecticut’s Constitution has a clause protecting speech legislators make as part of their duties from legal scrutiny.

Under Article 3, Section 15 of the state Constitution.”And for any speech or debate in either house, they shall not be questioned in any other place.”

OLM also claimed that records contained in the logs were protected by attorney-client privilege and the preliminary drafts exemption. But the FOIC found that while those exemptions applied to some records, they did not apply to all of the records which OLM claimed.

“The respondents maintain that the “legislative privilege” derived from the Speech or Debate clause of the state constitution acts as a categorical bar to the Commission’s ability to order the disclosure of any record maintained by the respondents that relate to their ‘legitimate legislative activities.'” hearing officer Nicholas Smarra wrote in his proposed decision.

Smarra also noted the in camera records OLM submitted contained draft bill analyses from the Office of Legislative Research, draft legislation, and preliminary notes on draft legislation, all of which OLM maintained are “legitimate legislative activities” covered by legislative privilege.

Draft legislation is generally exempt from FOIA disclosure under the preliminary drafts exemption, the idea being that subjecting early parts of the legislative process, where lawmakers are formulating ideas about bills, to public scrutiny would “chill” the legislative process. Smarra noted this in the portion of his proposed decision discussing draft legislation for which OLM had claimed the preliminary drafts exemption. He found that the balancing test the preliminary drafts exemption requires, which weighs the interests of public disclosure against the interest of withholding it, had been properly applied.

The FOIC ultimately rejected OLM’s claim that legislative privilege applied, finding it clashed with the history of FOIA, which legislators chose to subject them to in 1975. Connecticut is one of a few states where FOIA applies to all three branches of government and differs from the federal version of the law, which specifically exempts Congress.

In his proposed decision, which the commission adopted, Smarra called OLM’s position “untenable.”

That argument had never been made before the FOIC prior to OLM’s defense in DiIorio’s complaint, and Smarra found only two Connecticut cases that mentioned the Speech or Debate Clause, neither of which applied to public records requests.

Arguing OLM’s case, attorney Tim Holzman, who works for the attorney general’s office, told commissioners at an October 22 meeting that the Connecticut Supreme Court has told other Connecticut courts to look to federal case law because of the similarity between the Speech or Debate Clause in the federal Constitution and Connecticut’s. Smarra noted this was the case in the two Connecticut cases he found.

But Smarra noted that neither of those cases apply their findings to public records requests. And there’s a simple reason for this: unlike Connecticut’s FOI statute, federal FOIA does not apply to Congress.

“This difference between the federal FOIA and Connecticut’s FOI Act limits the utility of federal cases interpreting the legislative privilege arising out of the federal Speech or Debate clause within the context of public records requests. Nevertheless, such cases are important to consider as they clearly and consistently identify the purpose of the legislative privilege.” Smarra wrote in his proposed decision.

Smarra’s analysis of cases involving the Speech or Debate Clause found that comparing its purpose with FOIA made it “abundantly clear that the two concepts are fundamentally different.” Smarra noted the federal Speech and Debate Clause is intended to “safeguard legislators” from being subject to civil or criminal litigation. But FIOA is not a “civil process” because it “does not serve notice of litigation.”

“To the extent state legislators face any liability under the FOI Act, it would not be for a legislative act, but for failing to disclose public records pursuant to the [law’s] express statutory requirements.” Smarra wrote, adding that disclosing public records does not “in and of itself, implicate the process of legislation.”

Smarra also reasoned that FOIA “cannot be used by the executive or judicial branches as a means of intimidation” as can legal challenges brought against legislators for speech made on the floor of the General Assembly because FOIA grants rights to the public.

He further noted that while FOIA compels the disclosure of records, it specifically does not require public agencies to answer questions or produce new documents, whereas the legislative privilege protects legislators from being compelled to testify or produce information in court.

“Accordingly, the FOI Act provides no opportunity wherein “the senator and representatives” would have their speech or debate (and more broadly their legislative acts) “questioned” pursuant to [the Speech or Debate clause].” Smarra wrote.

Smarra also noted that the legislature is aware of the differences between FOIA and the Speech or Debate clause, in part because the state Constitution predates FOIA by around 157 years and that legislators, when debating the passage of FOIA in Connecticut, specifically subjected themselves to it and discussed the possibility it could be used to reveal embarrassing information about themselves.

In remarks made to the commission during the October 22 meeting, Holzman noted that the case law on legislative privilege applies in several different contexts but mostly applies to subpoenas of legislators. He argued that, for the purpose of determining whether legislative privilege applies, whether the request comes in the form of a subpoena or a public records request does not matter. Holzman further argued that FOIA is a state statute and state statute “cannot abrogate” the Constitution or Constitutional rights.

“If you have a record protected under the Speech or Debate clause, you can’t constitutionally be compelled to produce it.” Holzman stated.

In a post-hearing brief OLM submitted to the FOIC, Holzman argued the legislative privilege needed to be interpreted “broadly to effectuate its purposes” and that requiring legislators and legislative staff “to disclose documents about their protected legislative activities” would undermine the speech the clause is intended to protect. Further, Helzman argued that this was true “regardless of whether the documents are used in a later proceeding.”

“Legislators work with [Legislative Commissioners’ Office] because they know they can do so in confidence. That allows them to fully develop and flesh out their ideas in private before deciding whether to formally submit them for consideration before the General Assembly, without the risk of their ideas being exposed to political and public scrutiny before they are ready. If documents reflecting those internal drafts and deliberations could be made public, the media could pick them up. So, too, could other political factions within the General Assembly who may be vehemently opposed to a particular initiative and searching for grounds for opposing it.” Holzman’s brief states. They argued removing confidentiality would “negatively impact the quality of legislation coming out of the General Assembly and substantially interfere with the legislative process.”

In the brief, Holzman further argued that, for legislative privilege to apply, it didn’t matter whether draft legislation was being prepared by the LCO or by legislators themselves as legislative staff was always working on the behalf of a legislator.

The FOIC rejected these arguments, finding them to be overly broad, and adopted Smarra’s decision, with minor technical corrections. Before doing so, commissioners expressed interest in who had approved the positions Holzman was arguing.

Holzman also asked that the decision be stayed so OLM could make a determination about whether to appeal. Smarra’s decision gave OLM 14 days to turn over all nonexempt records. The FOIC denied the motion for the stay. It is generally their policy to do so, especially if it is within the statutory 45-day period public agencies have to appeal a decision to the courts.

This is one of several cases DiIorio is either currently arguing or has recently argued before the FOIC. The FOIC also ruled in DiIorio’s favor in a case against the Department of Banking (DOB) involving email communications from DOB employees that included several key phrases relating to the legal case against 1st Alliance Lending, LLC. DiIorio formerly served as the principal of 1st Alliance, which the DOB began investigating in 2018 over allegations it was using unlicensed staff to process mortgage applications. DOB officials are appealing the FOIC ruling, which found they could not withhold records they claimed contained confidential information because they are contained in a public licensing registry.

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