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OLR Bill Analysis
HB 5458
AN ACT CONCERNING REVISIONS TO THE FREEDOM OF
INFORMATION ACT RECOMMENDED BY THE FREEDOM OF
INFORMATION COMMISSION.
SUMMARY
This bill makes several unrelated changes to the Freedom of
Information Act (FOIA), including the following:
1. limits the applicability of FOIA’s definition of “governmental
function” so that it applies only to one statute concerning
contracts for performing a governmental function, rather than
throughout FOIA (§§ 1-3);
2. generally conforms the law on trainings provided by the
Freedom of Information Commission (FOIC) to current practice
(§ 4);
3. explicitly allows the copying of public records using mobile
telephones or cameras (§ 6); and
4. allows notices of a special meeting to be sent to a public agency’s
members by electronic transmission (§ 7).
Additionally, the bill specifies that FOIA’s disclosure exemption for
records covered by the federal Family Educational Rights and Privacy
Act (FERPA) applies to education records, rather than educational
records as current law provides (§ 5). This conforms with terminology
used in FERPA (20 U.S.C. § 1232g(4)).
Lastly, the bill makes technical and conforming changes. Among
other things, it amends provisions concerning the awarding of state
government information technology contracts to remove erroneous
references to (1) FOIC training and fees for copying public records and
(2) the statutory list of department heads (§§ 8-10). 2022HB-05458-R000499-BA.DOCX
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EFFECTIVE DATE: October 1, 2022
§§ 1-3 — GOVERNMENTAL FUNCTION
Under FOIA, “governmental function” generally includes a public
agency program’s administration or management by a person that,
among other things, participates in formulating governmental policies
or decisions connected to the program’s administration or management.
It does not include the mere provision of goods or services to a public
agency without delegated program management or administration
responsibilities.
The bill limits this definition’s applicability so that it applies only to
one statute concerning contracts for performing a governmental
function, rather than throughout FOIA as under current law (see
BACKGROUND). In doing so, the bill clarifies that the statutory
definition does not apply at common law, where “governmental
function” has a similar (though not identical) meaning (see
BACKGROUND).
Under current law, “governmental function” also appears in a FOIA
provision which generally prohibits public agencies from entering into
contracts that impair the public’s right to inspect or copy records stored
in a computer system the agency owns, leases, or uses in the course of
its governmental functions. The bill makes a conforming change by
eliminating the reference to governmental functions.
§ 4 — FOIC TRAINING
The law requires FOIC to conduct annual training sessions for
members of public agencies on FOIA’s provisions (e.g., meeting-related
requirements). The bill eliminates requirements for FOIC to provide
training on (1) physical requirements for public records (e.g., standard
ink); (2) using electronic nicotine or vapor products; and (3) injunctive
relief from frivolous, unreasonable, or harassing FOIC appeals. It adds
requirements for the commission to provide training on (1) contracts for
the performance of a governmental function, (2) veterans’ military
records, and (3) court actions involving FOIA. 2022HB-05458-R000499-BA.DOCX
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§ 6 — USING MOBILE PHONES AND CAMERA TO MAKE COPIES
The bill explicitly allows individuals to use mobile telephones and
cameras to copy public records. It does so by deeming them to be “hand-
held scanners” as defined in FOIA.
FOIA allows (1) individuals to use a hand-held scanner to copy
records and (2) public agencies to charge up to $20 each time an
individual uses a scanner to copy records at the agency. Under FOIA, a
“hand-held scanner” is a battery-operated electronic scanning device
that leaves no mark or impression on the records and does not
unreasonably interfere with the agency’s operations.
§ 7 — NOTICES OF A SPECIAL MEETING
Under FOIA, public agencies must provide at least 24 hours’ notice
of a special meeting unless there is an emergency. A special meeting is
one that is held to consider business that (1) was unforeseen when
scheduling regular meetings and (2) should be addressed before the
next regular meeting.
The bill allows notices of a special meeting to be sent to a public
agency’s members by electronic transmission or by mail to their homes.
Current law requires that the notice be delivered to the member’s home.
Current law also allows members to waive delivery of the notice by
filing a written waiver with the agency’s clerk or secretary. The bill
allows members to submit these waivers electronically or by mail.
BACKGROUND
Contract for Performance of a Governmental Function
By law, each contract exceeding $2.5 million between a public agency
and a person for the performance of a “governmental function” must
state that the public agency is entitled to receive a copy of records and
files related to the performance of the governmental function. The
contract must also indicate that these records or files are subject to FOIA
and may be disclosed by the public agency under FOIA.
Governmental Function: Common Law
By law, FOIA applies to non-public entities to the extent they are 2022HB-05458-R000499-BA.DOCX
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deemed to be the functional equivalent of a public agency (CGS § 1-
200(1)(B)). To determine whether a person is the “functional equivalent”
of a public agency, courts and FOIC apply a four-part test established
by the Connecticut Supreme Court in Board of Trustees of Woodstock
Academy v. FOI Commission, 181 Conn. 544 (1980). One component of this
test is whether the entity performs a governmental function.
In applying the functional equivalent test in a 1998 case, the Appellate
Court held that “Performing a government service pursuant to contract
does not make an entity a public agency subject to [FOIA]…. The key to
determining whether an entity is a government agency or merely a
contractor with the government is whether the government is really
involved in the core of the program” (Domestic Violence Services of Greater
New Haven, Inc. v. Freedom of Information Commission, 47 Conn. App. 466
(1998)).
COMMITTEE ACTION
Government Administration and Elections Committee
Joint Favorable
Yea 19 Nay 0 (03/29/2022)