The Office of Legislative Management (OLM) is appealing a ruling from the Freedom of Information Commission (FOIC) finding that the speech and debate clause in the Connecticut Constitution does not create a legislative privilege exempting them from complying with the Freedom of Information Act (FOIA).
OLM made a novel argument before the FOIC, claiming that records sought by requester John DiIorio were exempt from FOIA because the Connecticut Constitution’s Speech or Debate Clause granted them a privilege for “legitimate legislative activities” that superseded FOIA’s disclosure requirements.
The Speech or Debate Clause, modeled after a clause by the same name in the federal Constitution, grants legislators protection from legal scrutiny for speech they make on the floor of the General Assembly, chiefly insulating them from lawsuits or subpoenas. 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.”
The FOIC rejected OLM’s novel argument, which would mean nearly all records produced by the legislature are exempt from FOIA disclosure. Attorneys representing OLM clearly stated that they believed the privilege extended not only to legislators but to legislative aides as well, since their work is done at the request of legislators.
The hearing officer’s decision noted in part that legislators who passed FOIA in 1975 specifically chose to subject themselves to the law. Hearing officer Nicholas Smarra wrote in a preliminary decision adopted unanimously by the commission that OLM’s position was “untenable.”
OLM has since appealed that decision in Superior Court. The appeal, filed by lawyers in the attorney general’s office on behalf of OLM, argues that the FOIC’s decision violates not only the Speech or Debate Clause but also the separation of powers.
“The Final Decision violates the Speech or Debate Clause and the separation of powers provision of Article Second of the Connecticut constitution, and if allowed to stand, will substantially interfere in the legislative process by chilling the ability of legislators and staff to engage in the candid deliberations that the business of legislating requires. It must be reversed.” the appeal states.
It also claims the FOIC cited “no pertinent legal authority” in its ruling and declared “that the Privilege does not apply to proceedings before the Commission under any circumstances, and that it may ignore the Privilege and compel the legislature to disclose any public records pertaining to legislators’ internal deliberative processes.”
“In so ruling, the Commission has established that any member of the public may invade the Privilege and demand, at any time and for any purpose, documents related to the legislature’s deliberative processes, so long as the records are not covered by one of the narrowly-drawn statutory exemptions set forth in the Freedom of Information Act.” the appeal continues.
The appeal also charges that the FOIC exceeded its statutory authority in issuing its ruling, arguing that by passing FOIA, legislators did not abrogate the Speech or Debate Clause and that the commission, an executive branch agency, does not have the ability to issue a ruling allegedly limiting the legislature’s privilege.
“FOIA does not permit the Commission to violate the Connecticut constitution, nor does FOIA waive or abrogate common law privileges and immunities.” the brief states. The brief argues that language within the FOIA statute that discusses exemptions includes “any other privilege established by the common law,” along with a list of specifically enumerated exemptions, and that this applies to legislative privilege through the Speech or Debate Clause.
In discussion prior to the commission’s adoption of the decision, attorney Timothy Holzman, who works for the attorney general’s office and has represented OLM throughout the case, argued that the Connecticut Supreme Court has directed other Connecticut courts to look at federal case law because of the similarity between the federal Speech or Debate Clause and Connecticut’s. But Smarra noted in his decision that neither of the two cases he found applied to public records.
Unlike in Connecticut, one of the few states where all three branches of government are subject to FOIA, Congress is not subject to the federal Freedom of Information Act.
“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 decision.
OLM has also filed a motion seeking to have the FOIC’s decision ordering them to turn over records to DiIorio stayed until after the appeal is settled. The FOIC’s decision, adopted in October, ordered OLM to turn records over to DiIorio within 14 days.
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Connecticut state constitution. The government can’t have what tha people can’t have
This is going all the way to the Supreme Court, which, I believe, is in the intent.
Good article:)