When the Connecticut Senate meets this week, legislators could potentially call from their calendar two bills that will make it significantly more difficult to obtain public records from the state’s public universities through the Freedom of Information Act (FOIA).
The first of these is SB 1233, a bill aimed at responses to a bias reporting tool collected by the University of Connecticut’s (UConn) Institute for Municipal and Regional Policy (IMRP). The second is what I like to call a zombie bill — a concept that, despite not making it to final passage, is reintroduced year after year.
SB 1226, which would exempt “certain” education or research related records produced by public universities, is the latest iteration of legislation attempting to ban access to these huge swaths of records since 2023.
Though SB 1223’s impact on public universities is narrower, its impact should it become law is no less alarming for transparency. The bill would exempt any database containing information about alleged hate crimes received through the state’s online reporting tool, created by the Connecticut Hate Crimes Advisory Council and collected by the IMRP, from FOIA.
While the Hate Crimes Advisory Council is housed within the Office of the Chief State’s Attorney within the Department of Criminal Justice (which is exempt from FOIA), info from the council’s hate crime reporting tool is collected and analyzed by the IMRP. The IMRP is not just another academic research institution. In 2021, the legislator appointed it the successor of the Connecticut Institute for Municipal Studies and transferred assets and records from Central Connecticut State University to UConn. IMRP does work for a number of committees created by the legislature, and bills that make it harder to keep tabs on work the legislature has delegated to secondary agencies deserve attention.
There’s little public information available about what exactly happens when someone reports a hate crime through the online tool, but we know that certain reports are forwarded to police departments (SB 1223 also would exempt those reports from FOIA disclosure). Free speech advocates have sounded the alarm over the use of such reporting tools, noting their use could result in the investigation of First Amendment protected speech. Whether such tools could be exploited, allowing people to harass individuals they don’t like, is also a concern.
Uncertainty surrounding these issues is certainly a reason to demand greater public transparency into the use of hate crime reporting tools and to ensure there is accountability in the way hate crime investigations are conducted, just as with any other law enforcement investigation.
But proponents of SB 1223 have pointed to potentially problematic areas in hate crime reporting tools as a reason to withhold information about reports from the public.
Members of the advisory council argued in public testimony that the bill is needed because FOIA’s law enforcement exemption, which allows the identity of certain witnesses to be withheld if they are not otherwise known and prohibits the release of certain uncorroborated allegations, does not apply to the IMPR. They also claimed that FOIA access to the data collected by IMPR “can completely undermine” protections the reporting tool is trying to create, building on an argument that hate crimes and bias incidents are under-reported because some victims don’t want to tackle law enforcement.
As proof of this, they pointed to a FOIA request UConn received on February 3 seeking all responses IMPR has received from the hate crime reporting tool.
I filed that FOIA request.
As the requestor, I find this sinister characterization of an attempt to learn more about a reporting process with the potential to impact protected speech deeply disturbing.
It’s part of a larger pattern by public officials who categorize certain FOIA requests as illegitimate because they read ill intent into what the information may be used for.
Let’s be clear: there is nothing sinister about using FOIA to obtain that information. It’s why the law exists. FOIA recognizes that public records belong to the public. The presumption is in disclosure. That’s why FOIA has exemptions rather than a list of public records that are disclosable.
Public officials reading intent into requests or deciding they don’t like how information could be used once it’s released doesn’t change that.
It also seems to me that this is a problem of the council’s own making. They specifically created a reporting method to circumvent law enforcement involvement and then see a problem because law enforcement exemptions don’t apply.
Further, by their own admission, members of the councils consulted the Freedom of Information Commission (FOIC), arguably the state’s top FOIA experts, who told them they would be able to use another existing exemption to FOIA to shield reported names and addresses. But members of the council decided that wasn’t good enough.
In the council’s testimony, they say FOIC executive director Colleen Murphy told them that the safety risk exemption to FOIA would allow them to prevent disclosure of information, but they disagreed with her assessment.
The safety risk exemption allows public agencies to withhold certain records if they would reasonably propose a safety risk. Whether that safety risk exists is determined by one of several agencies, depending on which agency the request applies to. For IMRP, the commissioner of the Department of Administrative Services (DAS) would determine what is a reasonable safety risk.
The commission’s chief objection to this seems to be that the security risk exemption requires this review to occur for every FOIA request for this information it receives. “IMRP must ask and persuade CDAS to find that such “reasonable grounds” exist for each and every record requested. This requires not simply proof of a “general concern” about disclosure but actually proving ‘knowledge of a particular set of circumstances that would lead one to the conclusion that disclosure could result in harm to a person or to state property.'” the commission’s testimony on the bill reads.
So what they are objecting to is not only the review process for every request but also the need to have proof of specific harms as a barrier to disclosure. Their testimony also objects to the idea that the FOIC and the courts could overrule whether DAS’ finding was reasonable. In short, it seems they also want this bill because they don’t want anyone to challenge their FOIA denials.
This is the opposite of what agency officials should be striving for with FOIA disclosure. Officials may find it burdensome, but the external review process the safety risk exemption requires is actually something that should be utilized more in FOIA. I’ve pushed back on improperly applied exemptions a number of times and received public records as a result. A second, and perhaps more expert set of eyes, might help reduce these instances and help reduce the number of challenges that go to the FOIC.
The council’s testimony on SB 1233 says it will reduce FOIA uncertainty “in one narrow way.”
But while the bill may simplify their ability to swiftly deny FOIA requests, it will only cement public uncertainty surrounding how the state handles reports of alleged hate crimes.
Again, because these reports have the potential to involve investigations into protected speech, there’s obvious public interest in knowing this. Hate crimes also hit the public’s consciousness differently than other types of crimes do. Unlike other types of crime, they are not an attack on a single person. There is a vested public interest in knowing more about hate crimes and investigations into them. It is bizarre that they should be completely shrouded from the public’s view, especially when records and basic procedures for investigating other types of crimes are not hidden from the public.
It is also completely possible for anonymized information about these reports, such as the number that have been received, the number referred to police departments, and the outcome of those referrals, to be publicly available. For example, IMRP has a database on traffic stops on CT Data as part of its Racial Profiling Prohibition Project Work. It contains anonymized demographic data and location data about traffic stops that provide an overview of the issue but doesn’t release any personally identifiable information.
Proponents of this bill might think they’re making a point about alleged vulnerabilities in FOIA — in this case my lone FOIA request — that bad actors could use to expose sensitive information and harass certain groups, but they’re actually reinforcing how flimsy arguments to FOIA exemption are, and how quickly even a single example of an alleged problem completely overrides transparency and accountability.
There are similarities between that argument as applied to SB 1223 and arguments for SB 1226 that cite a few FOIA requests submitted to public universities allegedly with the intent of harassing researchers for political reasons. Make sure to subscribe to Transparency Update as I’ll dive more into SB 1226 and its implications for transparency at public universities next time.
Have your own frustrations about obtaining information through FOIA? Email katherine@insideinvestigator.org.
Transparency Note: Katherine Revello is a member of the Connecticut Council on Freedom of Information’s board of directors. CCFOI submitted testimony on several of the bills mentioned.
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