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OLR Bill Analysis
sSB 1155
AN ACT IMPLEMENTING RECOMMENDATIONS OF 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 on contracts for
performing a governmental function, rather than throughout
FOIA (§§ 1-3);
2. conforms the law on trainings given 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);
4. allows notices of a special meeting to be sent to a public agency’s
members electronically (§ 7); and
5. clarifies which public agencies must be named in an appeal to
FOIC when a request to inspect or copy a record is denied under
FOIA’s safety risk exemption (§ 11).
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 on the awarding of state government
information technology contracts to remove erroneous references to (1) 2023SB-01155-R000564-BA.DOCX
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FOIC training and fees for copying public records and (2) the statutory
list of department heads (§§ 8-10).
EFFECTIVE DATE: October 1, 2023
§§ 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 on 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 that 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 hold annual training sessions for members
of public agencies on FOIA’s provisions (e.g., meeting-related
requirements). The bill eliminates requirements for FOIC to hold
training on (1) physical requirements for public records (e.g., standard
ink) and (2) using electronic nicotine or vapor products. It adds
requirements for the commission to hold training on (1) contracts for the
performance of a governmental function, (2) veterans’ military records,
and (3) court actions involving FOIA.
§ 6 — USING MOBILE PHONES AND CAMERA S TO MAKE COPIES 2023SB-01155-R000564-BA.DOCX
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The bill explicitly allows individuals to copy public records using
mobile telephones, cameras, or other portable devices capable of
capturing an image of a public record. It does so by deeming these
devices 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. Currently 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 give at least 24 hours’ notice of a
special meeting, unless there is an emergency. A special meeting is one
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 electronically 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.
§ 11 — SECURITY APPEALS
Under FOIA, an executive branch state agency that receives a request
to disclose records potentially subject to FOIA’s safety risk exemption
(CGS § 1-210(b)(19)) must consult with the Department of
Administrative Services (DAS) commissioner before disclosing the
records. A municipal, regional, or district agency must consult with the
Department of Emergency Services and Public Protection (DESPP)
commissioner. In both cases, FOIA allows the applicable commissioner
to direct the custodial agency to withhold the record from disclosure.
Under current law, any FOIC appeal of a denial based on FOIA’s
safety risk exemption must be filed against the state, municipal,
regional, or district agency that issued the directive to withhold the 2023SB-01155-R000564-BA.DOCX
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record. Under the bill, the appeal must be filed against both the agency
with custody of the record and the commissioner (DAS or DESPP, as
applicable) that directed the agency to withhold the record.
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 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
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 Substitute
Yea 18 Nay 0 (03/24/2023)