ACCESS TO PUBLIC RECORDS
IN CONNECTICUT

 

 

 

 

 

A Survey of Compliance by State Agencies with the Freedom of Information Act

 

With an Independent Analysis by

Harry A. Hammitt, Esq.

Editor and Publisher of Access Reports

 

 

Sponsored by the Connecticut Foundation for Open Government, Inc.
and

The Connecticut Freedom of Information Commission

 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Photo of Capitol used by permission, ConneCT Management Advisory Committee, State of Connecticut-www.state.ct.us

ACCESS TO PUBLIC RECORDS
IN CONNECTICUT

 

 

 

 

 

A Survey of Compliance by State Agencies with the Freedom of Information Act

 

With an Independent Analysis by

Harry A. Hammitt, Esq.

Editor and Publisher of Access Reports

 

 

Sponsored by the Connecticut Foundation for Open Government, Inc.
and

The Connecticut Freedom of Information Commission

 

 


ACKNOWLEDGEMENTS

 

 

          This study of compliance by state agencies with the Connecticut Freedom of Information (FOI) Act is the logical sequel to the one conducted by the same sponsoring organizations in 1999 concerning compliance by local agencies.  Like the earlier survey, this one is also patterned after an FOI municipal compliance survey in 1998 in Rhode Island.  That survey was undertaken by students from Brown University, under the direction of Professor Ross Cheit, and the University of Rhode Island, under the direction of Professor Linda Levin, in collaboration with ACCESS/RI.

          We were fortunate enough to enlist the invaluable assistance of Professor Jerry Dunklee of Southern Connecticut State University.  Professor Dunklee integrated the conduct of the survey into the curriculum of his journalism course on Law and Ethics for the 2001 Winter Term and permitted us to use his students as surveyors and to use class time to train the student surveyors and debrief them after the survey.

          Once again our thanks go to the Board of Directors of the Connecticut Foundation for Open Government, Inc. (CFOG) for co-sponsoring this project.  CFOG is a nonprofit, educational organization whose mission is to promote the open and accountable government essential in a democratic society.  It seeks to achieve this by emphasizing to policy-makers and to citizens in general the need for a free flow of information on all public policy matters.  We believe that CFOG is certainly fulfilling its mission by co-sponsoring this undertaking.

CFOG received funding for this project from the National Freedom of Information Coalition through a grant from the John S. and James L. Knight Foundation.  We thank them for their support.

Particular thanks go to former CFOG President Forrest C. Palmer and board members Aaron S. Bayer, Secretary and General Counsel of Connecticut College, Rosalind Berman, former State Representative and FOI Commissioner, and State Representative Andrew M. Fleischmann for their creativity and assistance in designing the survey.

We would also like to thank Harry A. Hammitt, Editor and Publisher of Access Reports, for providing his analysis of the raw data of this survey.  Harry is an internationally recognized expert in public access laws, who brought to this project extensive experience as both a journalist and as a lawyer.

Finally, enormous credit must be given to the members and staff of the Connecticut FOI Commission.  To the individual members who enthusiastically supported this study and encouraged its completion, we give our sincere thanks.  For their courage, their names need to be listed here:  Chairman Andrew J. O’Keefe, Vincent M. Russo, Sherman D. London, Norma E. Riess and Dennis E. O’Connor.

          The following FOI Commission staff members also deserve mention for their work on the survey:  Anne Gimmartino, Thomas A. Hennick, Petrea Jones and Mary E. Schwind.  Gregory Daniels, who not only worked on the survey, but who also created the necessary databases, forms, reports and graphics for this report, deserves particular recognition.  And last, but by no means least, my heartfelt thanks go to my two closest associates for organizing and executing this project:  the commission’s Managing Director and Associate General Counsel, Colleen M. Murphy; and Eric V. Turner, who, as always, managed this project magnificently from start to finish.

 

Mitchell W. Pearlman

Executive Director

Connecticut Freedom of Information Commission


Table of Contents

 

Introduction

…………………………………..………………………………………

1

Analysis

…………………………………..………………………………………

9

 

By Agency

…………………………………..………………………………………

21

 

Asnuntuck Community-Technical College

…….……………….

21

 

Attorney General

……………………………………..……………….

22

 

Board of Accountancy

………………………………..……………….

23

 

Board of Education and Services for the Blind

……………….

24

 

Board of Examiners for Nursing

………………….……………….

25

 

Board of Firearms Permit Examiners

…………………………….

26

 

Board of Labor Relations

………………………….……………….

27

 

Board of Mediation and Arbitration

………………….….…..…..

28

 

Board Of Parole

…………………………………………..………….

29

 

Building Inspector

………………………………………….………….

30

 

Central Connecticut State University

…………………………….

31

 

Commission on Human Rights and Opportunities

.………….

32

 

Commission on the Arts

………………………………..………….

33

 

Commission on the Deaf and Hearing Impaired

….………….

34

 

Comptroller

…………………………………………………..………….

35

 

Connecticut Development Authority

…………………………….

36

 

Connecticut Housing Finance Authority

…………….………….

37

 

Connecticut Siting Council

……………………………….………….

38

 

Department of Administrative Services

………………………….

39

 

Department of Agriculture

……………………………….………….

40

 

Department of Banking

………………………………….………….

41

 

Department of Children and Families

………………..………….

42

 

Department of Consumer Protection

…………………………….

43

 

Department of Correction

………………………………..………….

44

 

Department of Economic and Community Development

..

45

 

Department of Environmental Protection

…………..………….

46

 

Department of Higher Education

……………………..………….

47

 

Department of Information Technology

………………………….

48

 

Department of Insurance

………………………………..………….

49

 

Department of Labor

………………………………………………….

50

 

Department of Liquor Control

…………………………………….

51

 

Department of Mental Health and Addiction Services

……….

52

 

Department of Mental Retardation

………………………………..

53

 

Department of Motor Vehicles

……………………………………...

54

 

Department of Public Health

……………………………………….

55

 

Department of Public Safety

…………………………………………

56

 

Department of Public Utility Control

…………………………….

57

 

Department of Public Works

……………………………………….

58

 

Department of Revenue Services

…………………………………

59

 

Department of Social Services

……………………………………...

60

 

Department of Transportation

……………………………………...

61

 

Department of Veterans Affairs

…………………………………….

62

 

Division of Criminal Justice

…………………………………………

63

 

Division of Public Defender Services

………………………………

64

 

Division of Special Revenue

…………………………………………

65

 

Eastern Connecticut State University

…………………………

66

Table of Contents

 

Analysis

 

 

 

By Agency  (continued)

……….………………………………….……………....

21

 

Elections Enforcement Commission

…………………………….

67

 

Ethics Commission

……………………………………………………

68

 

Governor

…………………………………………………………………

69

 

Lieutenant Governor

………………………………………………….

70

 

Military Department

………………………………………………….

71

 

Naugatuck Valley Community-Technical College

……………..

72

 

Office of Consumer Counsel

…………………………………………

73

 

Office of Health Care Access

…………………………………………

74

 

Office of Policy and Management

…………………………………

75

 

Office of Protection and Advocacy

…………………………………

76

 

Office of the Child Advocate

…………………………………………

77

 

Office of the Claims Commissioner

………………………………..

78

 

Office of the Medical Examiner

…………………………………….

79

 

Office of the Victim Advocate

……………………………………….

80

 

Properties Review Board

……………………………………….

81

 

Psychiatric Security Review Board

………………………………..

82

 

Soldiers’, Sailors’ and Marines’ Fund

…………………………….

83

 

State Library

…………………………………………………………….

84

 

Teachers’ Retirement Board

…………………………………………

85

 

Treasurer

…………………………………………………………………

86

 

University of Connecticut

……………………………………………

87

 

Workers’ Compensation Commission

…………………………….

88

Conclusion

………………………………………………………………………………….

89

 


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 naivetι 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.”