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OLR Bill Analysis
SB 355
AN ACT IMPLEMENTING THE RECOMMENDATIONS OF THE
FREEDOM OF INFORMATION COMMISSION FOR REVISIONS TO
THE FREEDOM OF INFORMATION ACT.
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) 2024SB-00355-R000428-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, 2024
§§ 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) the general prohibition on smoking indoors (e.g., tobacco
and cannabis). It adds requirements for the commission to hold training
on (1) contracts for the performance of a governmental function, (2)
veterans’ military records, (3) court actions involving FOIA, and (4) the
commission’s recommended budget appropriations and allotments. 2024SB-00355-R000428-BA.DOCX
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§ 6 — USING MOBILE PHONES AND CAMERAS TO MAKE COPIES
The bill explicitly allows people 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” under FOIA’s copies and scanning of public
records provision, which also allows public agencies to set a fee
structure for copying records with a hand-held scanner at the agency.
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 generally 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 and eliminates the option
for them to submit by telegram.
§ 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 2024SB-00355-R000428-BA.DOCX
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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
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 “[p]erforming 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 2024SB-00355-R000428-BA.DOCX
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Joint Favorable
Yea 19 Nay 0 (03/26/2024)