Introduction
Background.
In 1999, the Connecticut Freedom of Information
(FOI) Commission and the Connecticut Foundation for Open Government, Inc.
(CFOG) co-sponsored a survey of compliance by local agencies with the state FOI
Act. The results of that survey were
truly abysmal as reported and published that year in “Access to Public Records:
A Survey of Compliance by Local Agencies with the Freedom of Information Act.”
Over
the last several years, there have been a number of surveys dealing with local
compliance with FOI laws. But to our
knowledge, none of these surveys addressed FOI compliance by state
agencies.
As in the case of
our 1999 local agency survey report, we enlisted Harry Hammitt, editor and
publisher of Access Reports, and
author of the Report of the National Privacy and Public Policy Symposium, to
provide an independent analysis of the state agency survey. We were also
fortunate to enlist the assistance of Professor Jerry Dunklee of Southern
Connecticut State University who provided students from his 2001 Winter Term
journalism course on Law and Ethics to act as surveyors.
Concept
of the Survey.
Based
upon our experience with the 1999 survey, we knew that we had to set certain
limitations. The principal limitations
were (1) choice of agencies to be surveyed, (2) choice of the test for
compliance, and (3) choice of survey protocol.
The time period during which the survey would have to be completed also
had to be limited to prevent agencies from becoming aware that they were the
subject of a survey rather than merely responding to individual requests for
information. We have no information to
believe that the survey, essentially conducted over a two to three day period
in March of 2001, was compromised in this, or any other, way.
In
light of these limitations, it is important to note that this survey was
conceived to produce a “snapshot” of compliance with the FOI Act. If other records or agencies were chosen,
different results might have been achieved.
Those results might have been better or worse than those achieved in
this survey. But for all the reasons
explained in this report, we believe that the “snapshot” produced by this
survey presents a fair view of the state of compliance with FOI laws by
Connecticut state agencies.
Agencies
Surveyed.
We
originally hoped to survey every state executive branch agency. We could not accomplish this for several
reasons. First there is no one
comprehensive list of such agencies. We
acquired lists of state agencies from several sources, including the state Department
of Administrative Services, the Office of Policy and Management, the Governor’s
Office, the Office of Fiscal Analysis and the Office of Legislative
Research. Some agencies on these lists
we simply could not physically locate.
Others appeared to us to have gone out of business. Still others had no staff or office. When we filtered out these agencies, we had
created a list of about 100 agencies.
As we further
analyzed the remaining agencies on our list, we noted that many licensing
boards and commissions did not have their own staff, but were serviced by the
same personnel from larger agencies, particularly the Department of Consumer
Affairs with respect to boards and commissions having jurisdiction over trades
people, and the Department of Public Health with respect to boards and
commissions having jurisdiction over the health professions. Obviously for the purposes of this study it
made no sense to survey the same agency personnel for more than one agency
because presumably we would get the same results for all the agencies about
which we inquired; and furthermore the agency personnel were more likely to
view the request for records as a test rather than an individual citizen’s
request for public records.
Finally, there are a
total of four state universities under the state university system (not
including the University of Connecticut which has its own governance) and eight
state community-technical colleges under their own system. Because we thought that the governing system
for each set of universities and colleges would be controlled by the same set
of policies -- and perhaps the same personnel -- we decided to survey only two
state universities, four community-technical colleges and the University of
Connecticut at Storrs.
In all, a total of
72 state agencies were supposed to be surveyed. In two cases (Gateway Community-Technical College and Norwalk
Community-Technical College), however, the assigned surveyor failed to conduct
the survey. And unfortunately, the
survey results were lost and could not be re-created in another two cases
(Department of Education and the Office of the Secretary of the State). Because of the survey’s design, these
agencies could not be re-surveyed when we learned of these missing reports.
From our own
experience, we knew that it was likely that building security would prevent
some surveyors from reaching their assigned agencies without violating certain
provisions of the FOI Act. For this
reason, we divided the survey questionnaire into two parts. The first part addresses compliance with the
FOI Act by building security personnel.
These individuals are usually engaged by the agency in charge of the
building in which one or more state agencies are located (in most, if not all
cases, the state Department of Public Works).
The second part of the questionnaire addresses compliance with the FOI
Act by personnel of the surveyed agency.
In three cases (Department of Information Technology, Department of
Mental Retardation and Department of Transportation), the surveyors were not
permitted by building security to visit the assigned agencies. In those instances, we validated the survey
results only with respect to the first part of the questionnaire.
In another six
instances (Attorney General, Board of Examiners for Nursing, Division of
Criminal Justice, Governor, Lieutenant Governor and Treasurer), the surveyors
were told that there were no records responsive to the request. The offices of Attorney General, the Chief
State’s Attorney (Division of Criminal Justice), Governor, Lieutenant Governor
and Treasurer stated that because these officials were “constitutional
officers,” they did not have to document their time or attendance. A receptionist in the office of the Board of
Examiners for Nursing stated that the members of the board were all volunteers
and there were no senior officials of the agency for whom attendance records
were kept. We accepted this explanation
on its face and consequently we validated the survey results in these cases
only with respect to the first part of the questionnaire.
Thus, of the 68
state agencies for which we received survey results, 59 were validated for the
entire survey. An additional nine
agencies were validated only with respect to the first part of the
questionnaire dealing with access to the building in which those agencies are
located.
Test
for Compliance.
Great
care was taken in designing the survey.
The test for compliance could not be overly complicated to administer or
unfairly technical in its requirements.
For these reasons, we chose to focus on the “open records” provisions of
the FOI Act rather than its “open meetings” provisions.
Section
1-210(a) of the Connecticut General Statutes, the centerpiece of the FOI Act (Hartford v. FOI Commission, 201 Conn.
421 at 429-430 (1986)), in pertinent part reads:
“Except as otherwise provided by
any federal law or state statute, all records maintained or kept on file by any
public agency, whether or not such records are required by any law or by any
rule or regulation, shall be public records and every person shall have the
right to inspect such records promptly during regular office or business hours
or to receive a copy of such records in accordance with the provisions of
section 1-212.”
Section 1-212(a) of the Connecticut General
Statutes, in turn, provides in relevant part:
“Any person applying in
writing shall receive, promptly upon request, a plain or certified copy of any
public record. The fee for any copy
provided in accordance with the Freedom of Information Act [shall be as
follows]. . . .”
Several
key points are clear from these statutes.
First, unless exempt by “federal law or state statute,” every person has
the right to inspect any record kept by
a public agency promptly, without charge and without putting the request in
writing. Second, there are no statutory
preconditions to access to inspect public records. Thus, a person need not identify oneself before inspecting
nonexempt public records, nor need he or she justify the request by giving a
reason for seeking the information.
In testing how well
or how poorly the FOI Act is working for the average citizen, we believe that
it was crucial not only to look at whether or not inspection was granted, but
also whether public agencies were placing impermissible conditions on the right
to inspect. So we asked the surveyors
to record whether there were any preconditions to their entering the building
in which the agency to be surveyed is located.
Such preconditions included whether there was a requirement that they
give their names, identify whom they were going to see or provide
identification.
In addition, we
asked the surveyors to record whether each agency demanded a fee for inspection
and whether it demanded that the request be put in writing. We also asked the surveyors to report on
whether agency employees asked them to identify themselves or to provide the
reason they wanted to see the requested records. And we asked them to report on the promptness in complying with
their requests and on the degree of cooperation they experienced in each
transaction. Because the choice of
“yes” or “no,” or a scale of cooperation, does not necessarily reflect the
reality of every situation presented, we asked the surveyors to enter comments
(both positive and negative) which they thought would help clarify their
responses in light of the experiences they encountered.
Moreover, the law in
Connecticut is that when a public record contains both exempt and nonexempt
information, the agency must disclose the nonexempt information. Kozlowski
v. FOI Commission, 1997 WL 435860 (Super. Ct. CV 960556965, Maloney,
J.). Accordingly, we asked the
surveyors to record whether each agency would only permit inspection if certain
information were redacted or masked.
In
choosing the records we had the surveyors request, great care was also
taken. We tried not to be unfairly
technical or onerous. We tried to pick
records that the agencies concerned knew, or should have known, were
public. The FOI Commission was prepared
to provide the appropriate citation to the applicable law if any agency
contacted us. To our knowledge,
however, only one agency contacted the commission (the Office of the Secretary
of the State), and that appears to have occurred after responding to the
survey.
In
our 1999 survey of local agencies, we selected one specific kind of record for
each of three categories of agencies (i.e., municipal clerks, police
departments and superintendents of schools).
We were then able to tabulate and compare results within each category
of agency as well as among all categories.
Because each state agency essentially has a different mission
from that of every other one -- and therefore generally maintains different
kinds of records -- we could only compare survey results among all state
agencies using records kept by all of them.
Consequently our choice of records for purposes of this survey were
limited to administrative records.
Because administrative records are typically maintained by a single unit
or group of employees in each agency, we decided to seek access to only one
particular kind of record.
For this survey, we
chose the attendance records of the agency head or the agency’s highest ranking
paid employee, if the agency head was not a paid employee of the state. We defined “Attendance Record” to mean any
document that contains:
1.
The name of the person whose information the surveyor is seeking;
2.
The exact days and number of hours each day during the month of February
2001 during which the person whose information the surveyor is seeking was
recorded by the agency as having been present for work; and
3.
The precise days and number of hours during the month of February 2001
during which the person whose information the surveyor is seeking was recorded
by the agency as having been charged with sick leave, vacation leave, personal
leave or any other form of leave or absence, whether compensated or not.
The
information requested was specifically ruled to be public by the Connecticut
Supreme Court in the case of Perkins v.
FOI Commission, 228 Conn. 158, 177 (1993).
As stated in that case,:
“The public has a right to know not
only who their public employees are, but also when their public employees are
and are not performing their duties. We
conclude that a records request under the . . . [FOI Act] for disclosure of the
numerical data concerning an employee’s attendance records, including or
limited to sick leave, does not constitute an invasion of personal privacy
within the meaning of . . . [§1-210(b)(2)]. Disclosure in this instance is required.”
This decision
received a great deal of publicity and was the subject of much discussion by
public agencies in Connecticut because
it was the first time our state Supreme Court categorically defined the right
of personal privacy for purposes of the FOI Act. Thus, we believe that all state agencies knew, or should have
known, about this ruling and that the records requested must be provided.
Survey
Protocol.
The
survey protocol was quite simple. We
spent one class of over an hour training the surveyors. We asked the surveyors to act politely and
in a non-threatening, non-aggressive manner.
As stated earlier, we wanted to see how well or how poorly the FOI Act
is working for the average citizen who seeks access to, in this case, state
agency records. So we told our
surveyors neither to say that they were making their request pursuant to the
FOI Act or any other law, nor to demand to speak to a supervisor if they were
denied access. We also told them not to
threaten legal action of any kind, including an appeal to the FOI
Commission. We wanted the individuals
with whom the surveyors dealt to believe that there would be no consequences if
they denied access to the requested records.
A copy of the survey form is included in this report on pages 7 and 8.
If
the surveyors were asked to identify themselves or to give the reason that they
wanted to see the requested records, they were instructed to reply that they
would rather not say. If pressed to do
so in order to gain access to the records sought, they were told that they
either did not have to answer or could reply that it was part of a class
assignment, as long as they did not reveal it was for purposes of a
survey. They were informed that the
insistence upon their providing their names or the reason for their request as
a precondition to disclosure constituted a violation of the law. They were also told that although not
required, if they wanted to give their names, they were free to do so in order
to determine whether they would be given access to the requested records. In this regard, we also asked the surveyors
to look at any records provided so that it would appear they were actually
interested in them, thereby disguising that the request was for survey purposes
only. We explained that we had no
interest in what was in the records themselves, as long as the records appeared
complete and were responsive to the request made.
Most
of the surveyors were of traditional college age. But not all. We decided
that age, like race or gender, was not relevant to this survey. Since we were not testing compliance on the
basis of these factors, it did not matter who the surveyors were. They were simply people who, like everyone
else, were entitled to the records they sought promptly, and who, like everyone
else, were entitled to be treated with courtesy and civility. We did, however, ask the student surveyors
to dress neatly and not to wear college tee shirts, sweatshirts or caps or to
carry notebooks or anything else that would identify them as college students,
lest the officials have reason to speculate that a school project was the
reason for the request.
The
surveyors were instructed to complete the questionnaire for each agency
immediately upon leaving the premises.
They were told to write down the time and date of the visit, as well as
the address of each office visited, if different from the address provided, and
the names of the persons with whom they dealt.
We also asked the surveyors to write their comments at that time rather
than later when their recollection might not be as precise.
Obviously,
with a survey of this magnitude, not all surveyors followed these protocols to
perfection. But by and large most
performed satisfactorily and we believe the responses to the questionnaires are
accurate and valid. The patterns in the
survey responses support this conclusion.
We also met with the surveyors after they completed their work to
debrief them orally. This session
likewise confirmed to us the validity of the survey results as reported on the
completed survey questionnaires.
Format
and Purpose of Report.
The
remainder of this report consists of three parts. First is an analysis of the survey results in general. Second is an analysis of the survey results
alphabetically by agency. And finally,
there is a presentation of the conclusions reached by Mr. Hammitt with respect
to this survey.
Thanks
to CFOG, this report will be widely circulated within Connecticut. Each state agency head will receive a
copy. It will also be available through
the Connecticut library system and will be posted on the FOI Commission’s
website (www.state.ct.us/foi) and
CFOG’s website (www.ctopengovt.org). In this way, we hope that the report will
engender the great interest and discussion it deserves.
It is, of course,
easy to criticize the bearer of bad news, as the results of this survey well
may be perceived by many. Criticism is
therefore to be expected to one degree or another. That is why we have gone to some length to describe not only the
survey itself, but the law, reasons and thought that went into it. That is also why we have sought an
independent analysis of the survey results.
Nevertheless, we
hope that those agencies that were the subject of this survey, as well as those
that were not, will think about what this survey reveals and how to correct the
problems that have been exposed, particularly with respect to training their
employees who deal with the public in responding to FOI requests. Likewise, we hope that public policy makers
in Connecticut will use the survey and this report to determine whether changes
to the law ought to be made. After all,
the old adage that sunlight is the best disinfectant is as true literally as it
is metaphorically with respect to the harmful matters that can fester in the
murky recesses of unnecessary government secrecy. In large measure, the purpose of this survey and report has been
to direct the sunlight into some of these hidden recesses.
2001 STATE AGENCY SURVEY
AGENCY NAME
AND ADDRESS:
______________________________________________________
REQUEST TO INSPECT THE
“ATTENDANCE RECORD” OF
______________________________________________________
FOR THE MONTH OF FEBRUARY 2001.
**PLEASE
COMPLETE THE ENTIRE SURVEY, PLACING A CHECK MARK IN THE APPROPRIATE BOX AND
PRINTING WRITTEN RESPONSES LEGIBLY.**
1. Upon entering the building, were you asked
to:
a. Give your
name? Orally Y
ڤ N ڤ In
writing Y ڤ N ڤ
b. Identify
whom you were going to see? Orally Y
ڤ N ڤ In
writing Y ڤ N ڤ
c. Provide
identification? Y ڤ N
ڤ
2. After admittance to the building and finding
the correct office:
a. Were you
permitted to inspect the requested records? Y ڤ N ڤ
b. If you
were permitted to inspect the records, how long did you have to wait to see the
records? __________________
c. If you
were permitted to inspect the records, was any requested information omitted?
(e.g. blocked
out or portions missing) Y
ڤ N ڤ
If yes, what?
______________________________________________________________________________________
______________________________________________________________________________________
d. If you
were NOT permitted to inspect the records, what was the reason given, if
any?
______________________________________________________________________________________
______________________________________________________________________________________
e. Were you
asked to identify yourself? Y ڤ N ڤ
f. Were you
asked a reason for your request? Y ڤ N ڤ
g. Were you
required to provide a prepared written request? Y ڤ N
ڤ
h. Was there
a fee to inspect the records? Y ڤ N ڤ
3. How cooperative were the people you spoke
with? (Check the appropriate box). Reminder: This is not a rating of whether or not you
were permitted to inspect the records requested, it is simply a rating of the
amount of cooperation you received from the agency.
|
ڤ Very
Uncooperative
|
ڤ Somewhat
Uncooperative
|
ڤ Somewhat
Cooperative
|
ڤ Very
Cooperative
|
Please
explain your choice. _____________________________________________________________________________________________
____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
4. Additional comments about survey (use reverse
side of this form if necessary):
______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
5. Date of Survey: _________
Time Arrived at Agency Office: ____ Time Departed Agency Office: _________
Name
and title of person(s) with whom you dealt (ask politely, please).
__________________________________________________________________________________________________________________________________________________________________________________________
**SEE THE REVERSE SIDE FOR
REQUIRED CERTIFICATION AND FOR THE DEFINITION OF “ATTENDANCE RECORD.”**
TO ASSURE PAYMENT AND REIMBURSEMENT, PLEASE LEGIBLY
COMPLETE AND SIGN THE FOLLOWING CERTIFICATION.
I certify that the information contained on this survey form is complete and
accurate to the best of my knowledge and that I conducted this survey on the
date indicated above.
______________________________
Signature
PLEASE PRINT LEGIBLY
Full Name:
____________________________________________________________________
Address (where
check should be mailed): ____________________________________________
Telephone
Number (during business hours):
__________________________________________
Professor’s
Name: _______________________________________________________________
“ATTENDANCE
RECORD”
For purposes of this
survey, the term “Attendance Record” means any document that contains:
1. The name
of the person whose information you are seeking (the title of the person’s
office appears on the heading of this survey form);
2. The exact
days and number of hours each day during the month of February 2001 (e.g.,
February 1, 8 hours; February 2, 6 hours) during which the person whose
information you are seeking was recorded by the agency as having been present
for work; AND
3. The precise
days and number of hours during the month of February 2001 during which the
person whose information you were seeking was recorded by the agency as having
been charged with sick leave, vacation leave, personal leave or any other form
of leave or absence, whether compensated or not.
ADDITIONAL
COMMENTS
_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Analysis
Introduction
After the
dismal results of the survey of local government agencies sponsored by the
Connecticut Foundation for Open Government and the Connecticut Freedom of Information
Commission in 1999, these organizations decided to follow up with a second
survey that would test compliance in state agencies. The results are now in and they are no better, and perhaps worse,
than those of local government agencies.
Of 68 state agencies surveyed, only 10, 15 percent (see Graphs 1 and 2),
allowed the surveyor to view the attendance record of the head of the agency
and only a single agency – the Department of Banking – was in complete
compliance with the standards developed for the survey.*
Graph
1 Graph 2
The statistical results speak
for themselves, but the comments of many of the surveyors – all journalism
students of various ages at Southern Connecticut State University – add an
extra layer of color, revealing frequent ignorance of the requirements of the
Freedom of Information Act and running the gamut from ignorance and
indifference to the use of force and threats.
There
are at least three different issues that arise from the survey. The first is the consistently poor
performance of agencies as a whole.
Beyond that is the conflict between allowing access to public records
and maintaining building security. Finally,
what, unfortunately, comes through all too clearly in the surveyors’ comments
is their personal disenchantment with government, their disappointment at the
frequent brow beating and wide-eyed stares they received at agencies when they
attempted to assert what, under the FOI Act, are clear statutory rights of
access to the requested records.
Agency Performance
By
any standard, the performance of state agencies was terrible. Only one of 68 agencies surveyed passed the
test (see Graph 3) and only 10 in total even allowed the
__________
*The Department of Public Health, the Elections
Enforcement Commission and the Ethics Commission were also in compliance in all
respects under their control, but either security personnel or personnel from
other agencies did not meet all of the established standards for compliance.
surveyor to inspect the requested record. In the 1999 survey of local government, 22
percent of the offices surveyed were in
compliance with the statute. That
included 10 percent compliance by school districts, a 21 percent rate by
police, and 37 percent from town clerks.
Although this was a dismal performance, it shines when compared with the
compliance rate of state agencies, which works out to a worse than meager 1
percent (see graph 4); even when the more liberal standard of eventual access
is considered as the benchmark, the success rate is still only 15 percent. See Graph 2, page 9 above.
Graph 3 Graph 4
The
survey sets the bar high, but no higher than the law requires. But there may be a significant gap between strict
compliance with the law and ultimate access to records. In the case of state agencies there were not
one but two hurdles for surveyors to overcome.
What tripped up almost all agencies was an identification requirement
just to satisfy building security. As a
matter of fact, a number of surveyors never got any further than the lobby of
the building in which the agency they were assigned to survey was located. Some were told over the phone that they
could not see the records, but others dealt directly with individual staff
members who came down to the lobby to find out more about what they
wanted. However, being quizzed in a
building lobby did not lead to access to the records in any cases. Graphs 5-10 show respectively the number and
percentage in which building access was granted and denied on condition of
providing name, when visited and personal identification.
Graph 5 Graph 6
Graph 7 Graph 8
Graph 9 Graph 10
In
those rare cases when a surveyor got to an office past security, or where there
was no security, those individuals at the agencies who helped the surveyors
frequently asked the same questions – who are you, where are you from, why do
you want to see the attendance record for the head of the agency? See Graphs 11-16, which illustrate some of
the barriers imposed on the surveyors.
The law clearly provides that such questions are irrelevant to rights of
access and implicit in such questions is an unwelcome potential for
intimidation.
Graph 11 Graph 12
Graph 13 Graph 14
Graph 15 Graph 16
But
at only 10 agencies did the staff conclude that the records were public and that
they were required to allow the surveyor to view them. See Graphs 17 and 18. Personnel at a number of agencies believed
the records were either “confidential” or “private.” See Graphs 19 and 20, page 13 below. At others, surveyors were told that they must submit a written
request. See Graphs 21 and 22. Some even indicated that the surveyor would
have to make a request to the FOI Commission in order to gain access to the
records. Others were under the
impression that attendance records were personnel records and that access to
them was dependent on the consent of the individual the records were
about. Finally, a handful of agencies –
the Governor, Lieutenant Governor, Treasurer, Attorney General, and others –
told requesters that the heads of their agencies were constitutional officers
on set salary and that no record was kept of their attendance at work.
Graph 17 Graph 18
Graph 19 Graph 20
Graph 21 Graph 22
Surveyors
were asked to rate the agencies in terms of how cooperative they were. This characterization was made separately
from whether or not the surveyors received permission to view the records and
was done to rate the customer service provided by each agency. The ratings started with a possible low of
“Very Uncooperative,” moved through the middle ground of “Somewhat
Uncooperative” and on to “Somewhat Cooperative” and finished with the highest
possible rating, “Very Cooperative.”
The majority of agencies were given acceptable scores, with 18 agencies
rated as “Very Cooperative” and 21 agencies ranked as “Somewhat
Cooperative.” That left 13 agencies at
the bottom with “Very Uncooperative” and seven more with “Somewhat
Uncooperative.” So, approximately
two-thirds of all agencies were considered cooperative, but there is no reason
why 13 should have left such a bad impression on the surveyor that he or she
awarded them a “Very Uncooperative.”
See Graphs 23 and 24.
Graph 23 Graph 24
The
survey served to show just how far removed higher levels of government are from
the average citizen. Although the
compliance rate in the 1999 local government survey was not very good, most of
those individuals deal with people walking in off the street as part of their
regular work day. While many local
government staffers do not encounter the public on a daily basis, it is
considerably more likely for the average citizen to visit his or her town hall,
police station, or school district. It
is considerably less likely for the average citizen to visit a state agency
even if they live in the state capital.
As the chance of a direct face-to-face encounter with a citizen walking
off the street becomes more remote, such an occurrence engenders greater
surprise and suspicion on the part of the employee. While the surveyors were within their legal rights to come to the
agencies and request records, the rarity of such an event left many employees
scratching their heads, staring dumbfound at the requesters, and peppering them
with questions, more suspicious about why they were in their building than they
were interested in trying to help fulfill the surveyor’s request.
A
major part of the survey’s construction was designed to test how agencies would
react to individuals coming in off the street.
The statute speaks both in terms of receiving a written response to a
request or inspecting documents onsite.
For the survey to be successful agencies needed to be canvassed quickly
so that word of the survey would not leak to other agencies and color their
performance. It also needed consistent
standards that might be harder to achieve if the agencies were sent requests by
mail. In other words, if a surveyor
visited an agency, he or she would either gain access to the records during
that visit or access would be denied.
Either way, the agency’s compliance was completely tested by the end of
the visit. A written request would have
to rely on vagaries of mail delivery, intra-agency routing processes, and internal
policies that might require too many variables to properly quantify over a
short period of time. Even so, many
agencies believed a written request was the only way in which an individual
could gain access to records. See
Graphs 21 and 22, page 13 above.
A
number of agencies clearly had no clue concerning the public availability of
the records. At the Comptroller’s
office the surveyor was told that “they were not at liberty to just give out
that information” and that the requester’s general interest in seeing the
records was not a sufficient enough reason to allow inspection. After working their way to the payroll
office at the State Library, the surveyors were told that the information was
only available pursuant to a written request and even then the Librarian would
have the right to withhold his permission.
The head of the Properties Review Board actually allowed the surveyor to
view the previous month’s attendance records, but the surveyor noted that his secretary
“kept trying to convince him that it was his personal business and he shouldn’t
show us.” At Naugatuck Valley
Community-Technical College, the president’s executive secretary was very brief
and told the surveyor she could not see the information unless she wrote a
letter to the president explaining why she needed the information and he was
willing to let her view it. At the
Department of Motor Vehicles in Waterbury, a security guard opined that the
records were not public. A woman from
public relations came down to speak to the surveyor and insisted that it was
absolutely necessary for her to provide her name, telephone number, school and
class. The surveyor at the Department
of Liquor Control was interrupted by a “fairly rude” man who kept asking her
who she was, where she came from and why she wanted to see the administrator’s
records.
But,
by the same token, some offices, while not allowing onsite review, clearly
tried to be responsive to the requester.
At the Department of Public Utility Control, the requester left her name
and phone number with the executive secretary.
The following week she received four phone messages from the FOI officer
at the agency asking the requester to call back because she was unclear about
what records the requester wanted to see.
Some
of the experiences of surveyors were so far out of line that they deserve a
closer recounting. The worst
experiences were as a result of running into James Papillo, the Victim
Advocate, who roamed the corridors of his building, accused several of the
surveyors of lying and actually grabbed one of them and detained her
momentarily. In their descriptions of
their encounters with Papillo, he comes off sounding more like a self-appointed
vigilante making sure the building is free from the prying eyes of citizens
than like a public employee whose job is to serve rather than harass
citizens.
Perhaps
the best way to feel the impact of Papillo’s “shoot now, ask questions later”
tactics is to quote at length the description of the female surveyor who had
the most direct confrontation with him.
Some of the small agencies the surveyors visited were located in the
same buildings, as was the case here.
“I arrived at 505 Hudson around 12:30 pm. . .with my classmate and
walked up to the security desk. I told
the security officer that I needed to go to the Office of the Victim Advocate
and the Psychiatric Security Board office.
He proceeded to tell me to sign in and gave me a visitor’s pass that
said ‘DCF’ [the Department of Children and Families, also located at 505 Hudson
Street]. He then told me that it was on
the 5th or 6th floor and to go on up. My classmate and I went to the 6th
floor first and realized it was not there, so we headed down to the 5th
floor. We found the Office of the Victim
Advocate but no one was there so we went to the office next door and asked
where they were. A lady nicely told us
that they were either out to lunch or just on a break. She also asked what we were doing and we
told her that we needed to see an attendance record for a school project. We then proceeded to Room 101 where the
Psychiatric Security Board was located.
We walked into the office and no one was at the receptionist desk. We said ‘hello,’ a few times and no one
answered but we heard voices coming from the back, so we walked down and asked
if someone could help us.” After being
told the director was not in, the two surveyors left the office. “We left the office and went back up to the
5th floor to see if anyone was in the other office yet. Nobody was there so we went back to the
security desk and told them we had just come from the Office of the Victim
Advocate and nobody was there and asked if they were out to lunch or gone for
the day. They said that they were out
to lunch and that we should try back later.”
“We
returned a few hours later and my friend had decided to stay in the car, so I
had left my purse in there and went inside.
I walked up to the security desk and told them that I had been there
before and I needed to go to the Office of the Victim Advocate. The guard then pulled out the logbook and
pointed to my name and asked if that was my name. I noticed that my name had an arrow next to it. I said ‘yes’ and he asked me who I needed to
speak to there and I told him that I just needed to see a secretary or the
human resources person. He then asked
what I needed and I told him that I needed to see the attendance records of
James F. Papillo. He then went
upstairs.” After some back and forth
with the guard, the surveyor was told that someone would come down to talk with
her shortly.
A
man came down and approached her, apparently to shake her hand. “But it was not the normal way a person
would shake hands. He squeezed my hand (it
was almost as if he wanted to intimidate me or let me know that he was the one
in control). He did not introduce
himself to me, he just asked what I wanted and I said that I needed to see the
attendance records of James Papillo. He
then asked for ID and I told him that I had left it in the car and asked if he
wanted to go get it and he said ‘yes.’
So I went outside and ran around the corner to my car that had been
parked on the side of the building. . .I then proceeded to walk up to him and
showed him my school ID and my license.
He inspected them and handed them back.
Then he asked me what I needed to see the records for and he asked me
what type of class and professor it was for and I told him it was for
psychology class. At that point he
grabbed my arm and told me that I was full of shit and that we were going
inside and he was going to call the police.
I then pulled my arm away and asked him what he was talking about. He said that he already had a call into my
professor and wanted to know what kind of scam I was running. I told him again that I was doing a school
project and it seemed as if he did not believe me and that is when I said that
we were not supposed to say that we were journalism students.” [It was decided in setting up the survey
that mentioning that they were journalism students could affect the behavior of
agency employees because there is some evidence that government employees
provide greater access to records to the press as opposed to the average
citizen.]
“He kept asking why
we weren’t supposed to say that and I kept telling him that I didn’t know. He continued to go on how I had caused a
breach in security earlier. . . What kind of project was it? Were we just trying to get people’s
reactions when asked for these records because we couldn’t just walk in and get
this type of information. He motioned
to me by moving his hand up and down and said that a person could not just walk
in off the street and see them. There
were proper channels and procedures that I needed to follow and the teacher
should have called beforehand and arranged it unless he wanted us to learn that
this was not the way to go about getting this type of information. My teacher was wrong to send us out there. He would need time to check if this was public
information and if it was, if the FOI required a written request. I then said that I was under the impression
that I did not need to give my name or why I wanted it and he said that that
was wrong.”
As
if dressing down a citizen for no apparent reason and gleefully exhibiting his
total ignorance of the law wasn’t enough for one day, Papillo continued his
rampage with yet another student surveyor who had the ill luck to enter the
building just as the first surveyor was leaving. This surveyor intended to canvass the Board of Firearms Permit
Examiners, but met Papillo in the lobby instead. She noted that “the man was very nasty. He said to the security guard that no one is to roam the
halls. He said we were liars, lying
about who our professor is.” The guard,
who had already been criticized by Papillo, refused to allow the new surveyor
to go into the building, insisted she call up the offices and told her she
would be thrown out of the building if she continued to persist in her quest to
see the records.
If
this is the caliber of employee hired by Connecticut, the state has some
serious personnel problems. But
Papillo’s brutish behavior might be excused as that of a mad dog if it weren’t
for the fact that some of the same kind of paranoia was displayed at other
agencies. A male surveyor got something
of the same treatment at the Department of Veterans Affairs. After having a pleasant but fruitless
conversation with several people in the payroll office about viewing the
records, the surveyor was stopped in the hallway by the director of
security. The director asked why he was
there and then asked for his ID, writing down the information. He then escorted him out of the building at
which time he asked him how he had gotten into the property in the first
place. The surveyor explained that he
had pulled up at the guard gate and been waved in without any problem. The director had the surveyor go to the
guardhouse with him. He asked the guard
if he remembered seeing the surveyor and the guard said no. The director then had him sign in and
watched him until he had driven out of sight.
Another
surveyor found that her visit to the Military Department unexpectedly came back
to haunt her when she was interviewing for an internship in Congresswoman Rosa
DeLauro’s office. Her interviewer told
her that someone from the Military Department had contacted him and said the
surveyor had indicated to his staff that she was already interning at the
Congresswoman’s office. Explaining her
actions in a later letter of complaint, the surveyor indicated that “while I
was at the Military Department waiting for the record, his assistants were
asking me what my plans were for the summer – they were just trying to make
conversation – and I had mentioned that I was planning to intern at Rosa
DeLauro’s office. I did not say that I
was already interning.” She added that
“I was very intimidated when [the interviewer] interrogated me about why I had
told the Military Department that I was already an intern at his office. Also, there should not be any reason for
[the General] to ‘check up’ on me.”
For
participants in a survey to test agency compliance with an open government
obligation to find themselves under suspicion for trying to view public records
is upsetting to say the least. While
these experiences were limited, they were totally uncalled for and suggest that
those government employees involved perhaps need to spend some time learning
the basics about open democracy.
Building Security
vs. Open Government
What happens when the mania for
security runs into conflict with open government? Unfortunately, open government loses. The FOI Act provides the right to inspect public records onsite
at an agency’s office. But that right
is hollow if the requester is not allowed to go to the agency’s office. A number of building security guards did not
consider the statutory rights provided by the FOI Act to be an adequate reason
to gain admission to a public building.
In
survey sheets for 16 different agencies, some of which were located in the same
building, surveyors reported that they either were not allowed any further than
the building lobby, or, in one case, were not allowed into the building at
all. In three cases – the Department of
Economic and Community Development, the Department of Information Technology,
and the Department of Transportation – the surveyors reported that it was the
security guard who would not allow them to go any further, in at least one
instance the guard made the tentative ruling that the records were not
public. In a criminal justice agency –
the Board of Parole – the surveyor was not even allowed into the building. At the Board of Parole, a security guard at
the front door called upstairs and a woman came down and talked with the
surveyor through the door. Once the
woman went back upstairs, the surveyor waited until she called down to the
security guard that the records were not public.
In
other agencies, the surveyors made it as far as the lobby, but no further. Instead, someone came down and told the
surveyor that he or she could not see the records. Such agencies included the Attorney General, the Board of
Firearms Permit Examiners, the Board of Labor Relations, the Building
Inspector, the Comptroller, the Department of Agriculture, the Department of
Motor Vehicles, the Department of Public Safety, the Department of Revenue
Services, the Department of Social Services, the Division of Criminal Justice,
and the Treasurer.
The
concern for building security is understandable and was probably heightened by
the Oklahoma City bombing and the shootings at the State Lottery. [Note that this survey was conducted before
the tragic acts of terrorism on September 11, 2001.] But security comes with a price for access. And when it comes to asserting rights to
view public records at the agency’s office, the right is useless if the
requester is not allowed to visit the office.
Almost all security guards asked where the surveyor was going and who he
or she was. Where controlled entry and
exit are deemed necessary, that kind of gate-keeping operation is probably
necessary. But it does not necessarily
follow that a citizen with a legitimate reason for entering the building should
be denied access to a government agency and told to wait at the tradesmen’s
entrance instead until the residents of the building come to answer the door.
Government
must find some way to reconcile these competing interests that preserve the
essential needs of both. Although we
would like to think our government is open and accessible, that goal probably
cannot be fulfilled when faced with legitimate security concerns that prohibit
the ability of citizens to freely roam the corridors of government. Even so, as long as a security guard knows
that someone is in the building and where they are going, that would seem
sufficient in virtually every instance.
Surveyors who visited the offices of the Governor and the Lieutenant
Governor in the Capitol Building commented on how open the building was
compared to any other state building visited.
Of course, such legislative buildings have a long history of being open
and dealing with public comings and goings and have grown substantially more
comfortable with such movement. Only
time will tell whether this tradition will continue after the events of
September 11th.
Integrity of
Government
Democratic
government is based on the consent of the governed. That consent is based in large part on the public understanding
that the people who make up its government perform their jobs competently and
diligently and act reasonably and responsibly in carrying out their
functions. One of the most important
functions is to obey the law and it goes without saying that the public should
be able to anticipate that its legal rights will be recognized, not ignored.
Because
of the insularity of government as it becomes more removed from daily
interaction with the public, to send citizens into government agencies who may
realistically never deal with individuals off the street provided a challenging
test to the ability of those agencies and their employees to recognize their
statutory obligations and fulfill them.
Based on the results of the survey, the government as a whole flunked
with flying colors. But its inability
to process a walk-in request for a standard public record carried an impact
greater than just passing or failing a test.
It also provided many of the surveyors with personal illustrations of
how poorly government operates, how an encounter with a government employee can
prove to be intimidating, unpleasant, and sometimes downright nasty.
The
surveyors’ reports are full of reflections of the individual surveyors that
convey a consistent disenchantment with government and perhaps a certain sorrow
that citizen interactions with government can be so frequently
disappointing. One surveyor observed
that “the overall feeling I received after doing this survey experience is
intimidation. It was not so much that
the people themselves were intimidating, while in some instances that was the case,
but the process of going to these buildings and getting to the different
government offices that caused my feelings of intimidation.” Another noted that “I did get the feeling
that the information I was requesting was top secret and that my request was
unusual. At some points I did get the
impression that I had no business with the information that I was requesting to
see. Had I been just a regular citizen
coming into either office and had not known my rights, I would have been more
than a little intimidated. Even knowing
that I was perfectly within my rights asking for this information, I did at
times feel a little intimidated.”
Another surveyor said that “at first, I really didn’t want to do this
assignment, but at the end I found this to be a very eye-opening
experience. Perhaps the results will
turn into public embarrassment for those agencies involved, but I also think
there should be some other kind of punishment, such as fines, in order for this
problem to be fixed at least a little.”
Another added that “the amount of agencies that denied access to these
public records is unbelievable.
Hopefully the work we did will demonstrate the amount of agencies not
complying with the laws, or not having a solid understanding of what the law
is. I pity any citizen who requests
these records and is not one hundred percent sure of their rights, because the
response is brutal.” Finally, a
surveyor commented that “after hearing the similar experiences my classmates
had, I realized what a problem we have on our hands without an easy solution in
sight. There is already a law to
protect citizens’ rights, but not every state agency follows the law.”
One
surveyor explained that “all I can really say about the FOI Commission survey
is that it left me feeling exceptionally jaded toward our state
government. I did not really expect
that very many offices would be in compliance, but I also did not expect the
level of paranoia that was encountered.”
A week after his canvassing, he found that agency employees had
contacted his professor to verify the surveyor’s identity. He noted that “at first I found it funny,
but now I think it is really just sad.
The whole incident just shows that not only is the government so afraid
of the public that it makes it nearly impossible to get certain records, but it
actually tracks and traces whom those people are. Perhaps if I had made a threat or had been in any way hostile or
ill-mannered, I could understand the follow-up, but this bordered on some sort
of Big Brother spy job.”
One
surveyor had some comments about her treatment by security guards. “In my own experience, I don’t appreciate
being given the run around purposely when I stated my request numerous times. Security guards all over the city of
Hartford, at some particular state buildings, are trying to disinterest and
mislead the public.” She added that
“security guards and state workers all throughout Hartford and elsewhere in the
state need to be re-educated as to the laws before accusing private citizens of
being in the wrong. The legislature
should seriously look into the matter.
I have no problem informing my elected officials of the situation and
urging them to do something about it.”
These
comments reflect experiences with state government that are guaranteed to be
off-putting at the very least. Such
paranoia and ill-mannered behavior does not engender trust in government; it
does the exact opposite. Perhaps these
students betray a certain naiveté about the real world, but if the real world
consists of officials who haven’t any idea what the law is and can’t abide by
it as a result, then it may not be the kind of world into which these students
would choose to graduate.
At
least one surveyor was able to articulate an explanation for government
workers’ behavior. He noted that “the
nature in which we confronted the various offices around the state made them
feel vulnerable. We didn’t have an
affiliation, didn’t have a purpose, didn’t want to give our identity. This all adds up to a very shady appearance
on our part.” This surveyor indicated
that he found agency staff to be cooperative, but pointed out that “it’s only
natural when someone asks you for an outlandish request to ask why you
requested this information. Clearly
these offices were not briefed on FOI regulations and therefore resulted in
failure of the survey, but the nature of our request (attendance of the highest
ranking official) caused a likely reaction, they felt vulnerable. One woman’s
eyes and facial expression actually grew a look of fear and her actions became
hesitant.” He concluded that “all were
quite cooperative with me, they just didn’t know what the FOI specs were, so
they were apprehensive about complying with this outlandish request.”
