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General Assembly Raised Bill No. 1221
January Session, 2023
LCO No. 5977
Referred to Committee on GOVERNMENT ADMINISTRATION
AND ELECTIONS
Introduced by:
(GAE)
AN ACT CONCERNING THE ENFORCEMENT OF VIOLATIONS OF
THE FREEDOM OF INFORMATION ACT AND THE REPORTING OF
OPEN REQUESTS.
Be it enacted by the Senate and House of Representatives in General
Assembly convened:
Section 1. Subsection (b) of section 1-206 of the general statutes is 1
repealed and the following is substituted in lieu thereof (Effective October 2
1, 2023): 3
(b) (1) Any person denied the right to inspect or copy records under 4
section 1-210 or wrongfully denied the right to attend any meeting of a 5
public agency or denied any other right conferred by the Freedom of 6
Information Act may appeal therefrom to the Freedom of Information 7
Commission, by filing a notice of appeal with said commission. A notice 8
of appeal shall be filed not later than thirty days after such denial, except 9
in the case of an unnoticed or secret meeting, in which case the appeal 10
shall be filed not later than thirty days after the person filing the appeal 11
receives actual or constructive notice that such meeting was held. For 12
purposes of this subsection, such notice of appeal shall be deemed to be 13
filed on the date it is received by said commission or on the date it is 14 Raised Bill No. 1221
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postmarked, if received more than thirty days after the date of the denial 15
from which such appeal is taken. Upon receipt of such notice, the 16
commission shall serve upon all parties, by certified or registered mail 17
or by electronic transmission, a copy of such notice together with any 18
other notice or order of such commission. In the case of the denial of a 19
request to inspect or copy records contained in a public employee's 20
personnel or medical file or similar file under subsection (c) of section 1-21
214, the commission shall include with its notice or order an order 22
requiring the public agency to notify any employee whose records are 23
the subject of an appeal, and the employee's collective bargaining 24
representative, if any, of the commission's proceedings and, if any such 25
employee or collective bargaining representative has filed an objection 26
under said subsection (c), the agency shall provide the required notice 27
to such employee and collective bargaining representative by certified 28
mail, return receipt requested, by electronic transmission or by hand 29
delivery with a signed receipt. A public employee whose personnel or 30
medical file or similar file is the subject of an appeal under this 31
subsection may intervene as a party in the proceedings on the matter 32
before the commission. Said commission shall, after due notice to the 33
parties, hear and decide the appeal [within] not later than one year after 34
the filing of the notice of appeal. The commission shall adopt regulations 35
in accordance with chapter 54, establishing criteria for those appeals 36
which shall be privileged in their assignment for hearing. Any such 37
appeal shall be heard not later than thirty days after receipt of a notice 38
of appeal and decided not later than sixty days after the hearing. If a 39
notice of appeal concerns an announced agency decision to meet in 40
executive session or an ongoing agency practice of meeting in executive 41
sessions, for a stated purpose, the commission or a member or members 42
of the commission designated by its chairperson shall serve notice upon 43
the parties in accordance with this section and hold a preliminary 44
hearing on the appeal not later than seventy-two hours after receipt of 45
the notice, provided such notice shall be given to the parties at least 46
forty-eight hours prior to such hearing. During such preliminary 47
hearing, the commission shall take evidence and receive testimony from 48
the parties. If after the preliminary hearing the commission finds 49 Raised Bill No. 1221
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probable cause to believe that the agency decision or practice is in 50
violation of sections 1-200 and 1-225, the agency shall not meet in 51
executive session for such purpose until the commission decides the 52
appeal. If probable cause is found by the commission, it shall conduct a 53
final hearing on the appeal and render its decision not later than five 54
days after the completion of the preliminary hearing. Such decision shall 55
specify the commission's findings of fact and conclusions of law. 56
(2) In any appeal to the Freedom of Information Commission under 57
subdivision (1) of this subsection or subsection (c) of this section, the 58
commission may confirm the action of the agency or order the agency 59
to provide relief that the commission, in its discretion, believes 60
appropriate to rectify the denial of any right conferred by the Freedom 61
of Information Act. The commission may declare null and void any 62
action taken at any meeting which a person was denied the right to 63
attend and may require the production or copying of any public record. 64
In addition, upon the finding that a denial of any right created by the 65
Freedom of Information Act was without reasonable grounds and after 66
the custodian or other official directly responsible for the denial has 67
been given an opportunity to be heard at a hearing conducted in 68
accordance with sections 4-176e to 4-184, inclusive, the commission 69
may, in its discretion, impose against the custodian or other official a 70
civil penalty of not less than twenty dollars nor more than [one] ten 71
thousand dollars. If the commission finds that a person has taken an 72
appeal under this subsection frivolously, without reasonable grounds 73
and solely for the purpose of harassing the agency from which the 74
appeal has been taken, after such person has been given an opportunity 75
to be heard at a hearing conducted in accordance with sections 4-176e to 76
4-184, inclusive, the commission may, in its discretion, impose against 77
that person a civil penalty of not less than twenty dollars nor more than 78
one thousand dollars. The commission shall notify a person of a penalty 79
levied against [him] such person pursuant to this subsection by written 80
notice sent by certified or registered mail or electronic transmission. If a 81
person fails to pay the penalty [within] not later than thirty days [of] 82
after receiving such notice, the Superior Court shall, on application of 83 Raised Bill No. 1221
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the commission, issue an order requiring the person to pay the penalty 84
imposed. If the executive director of the commission has reason to 85
believe an appeal under subdivision (1) of this subsection or subsection 86
(c) of this section (A) presents a claim beyond the commission's 87
jurisdiction; (B) would perpetrate an injustice; or (C) would constitute 88
an abuse of the commission's administrative process, the executive 89
director shall not schedule the appeal for hearing without first seeking 90
and obtaining leave of the commission. The commission shall provide 91
due notice to the parties and review affidavits and written argument 92
that the parties may submit and grant or deny such leave summarily at 93
its next regular meeting. The commission shall grant such leave unless 94
it finds that the appeal: (i) Does not present a claim within the 95
commission's jurisdiction; (ii) would perpetrate an injustice; or (iii) 96
would constitute an abuse of the commission's administrative process. 97
Any party aggrieved by the commission's denial of such leave may 98
apply to the superior court for the judicial district of New Britain, 99
[within] not later than fifteen days of the commission meeting at which 100
such leave was denied, for an order requiring the commission to hear 101
such appeal. 102
(3) In making the findings and determination under subdivision (2) 103
of this subsection the commission shall consider the nature of any 104
injustice or abuse of administrative process, including, but not limited 105
to: (A) The nature, content, language or subject matter of the request or 106
the appeal, including, among other factors, whether the request or 107
appeal is repetitious or cumulative; (B) the nature, content, language or 108
subject matter of prior or contemporaneous requests or appeals by the 109
person making the request or taking the appeal; (C) the nature, content, 110
language or subject matter of other verbal and written communications 111
to any agency or any official of any agency from the person making the 112
request or taking the appeal; (D) any history of nonappearance at 113
commission proceedings or disruption of the commission's 114
administrative process, including, but not limited to, delaying 115
commission proceedings; and (E) the refusal to participate in settlement 116
conferences conducted by a commission ombudsman in accordance 117 Raised Bill No. 1221
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with the commission's regulations. 118
(4) Notwithstanding any provision of this subsection, [to the 119
contrary,] in the case of an appeal to the commission of a denial by a 120
public agency, the commission may, upon motion of such agency, 121
confirm the action of the agency and dismiss the appeal without a 122
hearing if it finds, after examining the notice of appeal and construing 123
all allegations most favorably to the appellant, that (A) the agency has 124
not violated the Freedom of Information Act, or (B) the agency has 125
committed a technical violation of the Freedom of Information Act that 126
constitutes a harmless error that does not infringe the appellant's rights 127
under said act. 128
(5) Notwithstanding any provision of this subsection, in the case of 129
an appeal to the commission of a denial by a public agency where, after 130
a hearing, the commission finds the public agency is engaging in a 131
practice or pattern of conduct that constitutes an obstruction of the 132
public's right to access information under the Freedom of Information 133
Act or reckless, wilful or wanton misconduct with regard to the delay 134
or denial of responses to requests for public records under said act, the 135
commission may apply to the superior court for the judicial district of 136
New Britain for further injunctive and equitable relief, damages, 137
attorney's fees and costs, as the court may order. 138
[(5)] (6) Notwithstanding any provision of this subsection, a public 139
agency may petition the commission for relief from a requester that the 140
public agency alleges is a vexatious requester. Such petition shall be 141
sworn under penalty of false statement, as provided in section 53a-157b, 142
and shall detail the conduct which the agency alleges demonstrates a 143
vexatious history of requests, including, but not limited to: (A) The 144
number of requests filed and the total number of pending requests; (B) 145
the scope of the requests; (C) the nature, content, language or subject 146
matter of the requests; (D) the nature, content, language or subject 147
matter of other oral and written communications to the agency from the 148
requester; and (E) a pattern of conduct that amounts to an abuse of the 149
right to access information under the Freedom of Information Act or an 150 Raised Bill No. 1221
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interference with the operation of the agency. Upon receipt of such 151
petition, the executive director of the commission shall review the 152
petition and determine whether it warrants a hearing. If the executive 153
director determines that a hearing is not warranted, the executive 154
director shall recommend that the commission deny the petition 155
without a hearing. The commission shall vote at its next regular meeting 156
after such recommendation to accept or reject such recommendation 157
and, after such meeting, shall issue a written explanation of the reasons 158
for such acceptance or rejection. If the executive director determines that 159
a hearing is warranted, the commission shall serve upon all parties, by 160
certified or registered mail or electronic transmission, a copy of such 161
petition together with any other notice or order of the commission. The 162
commission shall, after due notice to the parties, hear and either grant 163
or deny the petition [within] not later than one year after its filing. Upon 164
a grant of such petition, the commission may provide appropriate relief 165
commensurate with the vexatious conduct, including, but not limited 166
to, an order that the agency need not comply with future requests from 167
the vexatious requester for a specified period of time, but not to exceed 168
one year. Any party aggrieved by the commission's granting of such 169
petition may apply to the superior court for the judicial district of New 170
Britain, [within] not later than fifteen days [of] after the commission 171
meeting at which such petition was granted, for an order reversing the 172
commission's decision. 173
Sec. 2. Section 1-212 of the general statutes is amended by adding 174
subsection (h) as follows (Effective October 1, 2023): 175
(NEW) (h) On and after October 1, 2023, each public agency shall 176
compile a list concerning requests for a copy of a record made under this 177
chapter that contains: (1) The number of requests the agency has 178
received that the agency has not fulfilled, (2) the date any such open 179
request was received, (3) the date of any agency response to the 180
requester, and (4) the total number of requests fulfilled during the prior 181
month. Each public agency shall post such list in a prominent location 182
on its Internet web site, or, if the agency does not have an Internet web 183
site, in a prominent location in its regular office or place of business. 184 Raised Bill No. 1221
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Each public agency shall update such list not less than monthly. The 185
provisions of this subsection shall apply to any judicial office, official or 186
body or committee thereof, but only in respect to its administrative 187
functions. 188
This act shall take effect as follows and shall amend the following
sections:
Section 1 October 1, 2023 1-206(b)
Sec. 2 October 1, 2023 1-212(h)
Statement of Purpose:
To increase the maximum penalty for certain violations of the Freedom
of Information Act to ten thousand dollars, to permit the Freedom of
Information Commission to seek judicial relief for certain public agency
misconduct and to require public agencies to post information about
open requests.
[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except
that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not
underlined.]