Substitute Senate Bill No. 1221
Public Act No. 23-200
AN ACT CONCERNING THE ENFORCEMENT OF VIOLATIONS OF
THE FREEDOM OF INFORMATION ACT.
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
repealed and the following is substituted in lieu thereof (Effective October
1, 2023):
(b) (1) Any person denied the right to inspect or copy records under
section 1-210 or wrongfully denied the right to attend any meeting of a
public agency or denied any other right conferred by the Freedom of
Information Act may appeal therefrom to the Freedom of Information
Commission, by filing a notice of appeal with said commission. A notice
of appeal shall be filed not later than thirty days after such denial, except
in the case of an unnoticed or secret meeting, in which case the appeal
shall be filed not later than thirty days after the person filing the appeal
receives actual or constructive notice that such meeting was held. For
purposes of this subsection, such notice of appeal shall be deemed to be
filed on the date it is received by said commission or on the date it is
postmarked, if received more than thirty days after the date of the denial
from which such appeal is taken. Upon receipt of such notice, the
commission shall serve upon all parties, by certified or registered mail
or by electronic transmission, a copy of such notice together with any Substitute Senate Bill No. 1221
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other notice or order of such commission. In the case of the denial of a
request to inspect or copy records contained in a public employee's
personnel or medical file or similar file under subsection (c) of section 1-
214, the commission shall include with its notice or order an order
requiring the public agency to notify any employee whose records are
the subject of an appeal, and the employee's collective bargaining
representative, if any, of the commission's proceedings and, if any such
employee or collective bargaining representative has filed an objection
under said subsection (c), the agency shall provide the required notice
to such employee and collective bargaining representative by certified
mail, return receipt requested, by electronic transmission or by hand
delivery with a signed receipt. A public employee whose personnel or
medical file or similar file is the subject of an appeal under this
subsection may intervene as a party in the proceedings on the matter
before the commission. Said commission shall, after due notice to the
parties, hear and decide the appeal [within] not later than one year after
the filing of the notice of appeal. The commission shall adopt regulations
in accordance with chapter 54, establishing criteria for those appeals
which shall be privileged in their assignment for hearing. Any such
appeal shall be heard not later than thirty days after receipt of a notice
of appeal and decided not later than sixty days after the hearing. If a
notice of appeal concerns an announced agency decision to meet in
executive session or an ongoing agency practice of meeting in executive
sessions, for a stated purpose, the commission or a member or members
of the commission designated by its chairperson shall serve notice upon
the parties in accordance with this section and hold a preliminary
hearing on the appeal not later than seventy-two hours after receipt of
the notice, provided such notice shall be given to the parties at least
forty-eight hours prior to such hearing. During such preliminary
hearing, the commission shall take evidence and receive testimony from
the parties. If after the preliminary hearing the commission finds
probable cause to believe that the agency decision or practice is in
violation of sections 1-200 and 1-225, the agency shall not meet in Substitute Senate Bill No. 1221
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executive session for such purpose until the commission decides the
appeal. If probable cause is found by the commission, it shall conduct a
final hearing on the appeal and render its decision not later than five
days after the completion of the preliminary hearing. Such decision shall
specify the commission's findings of fact and conclusions of law.
(2) In any appeal to the Freedom of Information Commission under
subdivision (1) of this subsection or subsection (c) of this section, the
commission may confirm the action of the agency or order the agency
to provide relief that the commission, in its discretion, believes
appropriate to rectify the denial of any right conferred by the Freedom
of Information Act. The commission may declare null and void any
action taken at any meeting which a person was denied the right to
attend and may require the production or copying of any public record.
In addition, upon the finding that a denial of any right created by the
Freedom of Information Act was without reasonable grounds and after
the custodian or other official directly responsible for the denial has
been given an opportunity to be heard at a hearing conducted in
accordance with sections 4-176e to 4-184, inclusive, the commission
may, in its discretion, impose against the custodian or other official a
civil penalty of not less than twenty dollars nor more than [one] five
thousand dollars. If the commission finds that a person has taken an
appeal under this subsection frivolously, without reasonable grounds
and solely for the purpose of harassing the agency from which the
appeal has been taken, after such person has been given an opportunity
to be heard at a hearing conducted in accordance with sections 4-176e to
4-184, inclusive, the commission may, in its discretion, impose against
that person a civil penalty of not less than twenty dollars nor more than
one thousand dollars. The commission shall notify a person of a penalty
levied against [him] such person pursuant to this subsection by written
notice sent by certified or registered mail or electronic transmission. If a
person fails to pay the penalty [within] not later than thirty days [of]
after receiving such notice, the Superior Court shall, on application of Substitute Senate Bill No. 1221
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the commission, issue an order requiring the person to pay the penalty
imposed. If the executive director of the commission has reason to
believe an appeal under subdivision (1) of this subsection or subsection
(c) of this section (A) presents a claim beyond the commission's
jurisdiction; (B) would perpetrate an injustice; or (C) would constitute
an abuse of the commission's administrative process, the executive
director shall not schedule the appeal for hearing without first seeking
and obtaining leave of the commission. The commission shall provide
due notice to the parties and review affidavits and written argument
that the parties may submit and grant or deny such leave summarily at
its next regular meeting. The commission shall grant such leave unless
it finds that the appeal: (i) Does not present a claim within the
commission's jurisdiction; (ii) would perpetrate an injustice; or (iii)
would constitute an abuse of the commission's administrative process.
Any party aggrieved by the commission's denial of such leave may
apply to the superior court for the judicial district of New Britain,
[within] not later than fifteen days of the commission meeting at which
such leave was denied, for an order requiring the commission to hear
such appeal.
(3) In making the findings and determination under subdivision (2)
of this subsection the commission shall consider the nature of any
injustice or abuse of administrative process, including, but not limited
to: (A) The nature, content, language or subject matter of the request or
the appeal, including, among other factors, whether the request or
appeal is repetitious or cumulative; (B) the nature, content, language or
subject matter of prior or contemporaneous requests or appeals by the
person making the request or taking the appeal; (C) the nature, content,
language or subject matter of other verbal and written communications
to any agency or any official of any agency from the person making the
request or taking the appeal; (D) any history of nonappearance at
commission proceedings or disruption of the commission's
administrative process, including, but not limited to, delaying Substitute Senate Bill No. 1221
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commission proceedings; and (E) the refusal to participate in settlement
conferences conducted by a commission ombudsman in accordance
with the commission's regulations.
(4) Notwithstanding any provision of this subsection, [to the
contrary,] in the case of an appeal to the commission of a denial by a
public agency, the commission may, upon motion of such agency,
confirm the action of the agency and dismiss the appeal without a
hearing if it finds, after examining the notice of appeal and construing
all allegations most favorably to the appellant, that (A) the agency has
not violated the Freedom of Information Act, or (B) the agency has
committed a technical violation of the Freedom of Information Act that
constitutes a harmless error that does not infringe the appellant's rights
under said act.
(5) Notwithstanding any provision of this subsection, in the case of
an appeal to the commission of a denial by a public agency where, after
a hearing, the commission finds the public agency is engaging in a
practice or pattern of conduct that constitutes an obstruction of any right
conferred by the Freedom of Information Act or reckless, wilful or
wanton misconduct with regard to the delay or denial of responses to
requests for public records under said act, the commission may impose
a civil penalty of not less than twenty dollars nor more than five
thousand dollars against a custodian or other official of such public
agency, and order such other relief that the commission, in its discretion,
determines is appropriate to rectify such obstruction or misconduct and
to deter such public agency from violating the Freedom of Information
Act. In case of any failure or refusal to comply with any order issued
under this subdivision, the commission may apply to the superior court
for the judicial district of New Britain for an order requiring such public
agency to comply with such order.
[(5)] (6) Notwithstanding any provision of this subsection, a public
agency may petition the commission for relief from a requester that the Substitute Senate Bill No. 1221
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public agency alleges is a vexatious requester. Such petition shall be
sworn under penalty of false statement, as provided in section 53a-157b,
and shall detail the conduct which the agency alleges demonstrates a
vexatious history of requests, including, but not limited to: (A) The
number of requests filed and the total number of pending requests; (B)
the scope of the requests; (C) the nature, content, language or subject
matter of the requests; (D) the nature, content, language or subject
matter of other oral and written communications to the agency from the
requester; and (E) a pattern of conduct that amounts to an abuse of the
right to access information under the Freedom of Information Act or an
interference with the operation of the agency. Upon receipt of such
petition, the executive director of the commission shall review the
petition and determine whether it warrants a hearing. If the executive
director determines that a hearing is not warranted, the executive
director shall recommend that the commission deny the petition
without a hearing. The commission shall vote at its next regular meeting
after such recommendation to accept or reject such recommendation
and, after such meeting, shall issue a written explanation of the reasons
for such acceptance or rejection. If the executive director determines that
a hearing is warranted, the commission shall serve upon all parties, by
certified or registered mail or electronic transmission, a copy of such
petition together with any other notice or order of the commission. The
commission shall, after due notice to the parties, hear and either grant
or deny the petition [within] not later than one year after its filing. Upon
a grant of such petition, the commission may provide appropriate relief
commensurate with the vexatious conduct, including, but not limited
to, an order that the agency need not comply with future requests from
the vexatious requester for a specified period of time, but not to exceed
one year. Any party aggrieved by the commission's granting of such
petition may apply to the superior court for the judicial district of New
Britain, [within] not later than fifteen days [of] after the commission
meeting at which such petition was granted, for an order reversing the
commission's decision. Substitute Senate Bill No. 1221
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