FOI Legislation Pits Donovan Against Malloy [CTNewsJunkie.com]

February 24, 2012

Article as it appeared on CTNewsJunkie.com
by Christine Stuart | Feb 22, 2012 10:39pm

Since the Supreme Court issued a decision that requires municipalities to redact the addresses of police officers, correction officers, and other “protected classes” in public documents, local officials and lawmakers have been searching for a legislative solution.

The legislature’s Democratic majority says it found one and they thinks it’s so good it should be passed tomorrow in the House as an emergency certified bill. An emergency certified bill, also called an “e-cert,” doesn’t receive a public hearing and doesn’t go through the committee process.

“They have a fix and they don’t care what people think and they don’t care to have it scrutinized,” Sen. Leonard Fasano, R-North Haven, said Wednesday in his office.

Fasano said he was outraged by the majority party’s attempt to get this passed outside of the regular legislative process. He even went as far as interrupting the Planning & Development Committee public hearing on Gov. Dannel P. Malloy’s bill to let everyone know they had just wasted their time.

“Those of you who gave testimony — it doesn’t really matter. Those of you who haven’t given any testimony might as well go home,” Fasano said.

Fasano isn’t the only one upset about the Democrats’ end-around. Lobbyists for a diverse coalition of town clerks, tax assessors, the Connecticut Daily Newspaper Association, and the Freedom of Information Council say the Democrats’ bill will only create more confusion. The governor’s office, which was taken by surprise with the Democratic majority’s bill proposal, agrees.

“We’ve recently been informed about what the leadership is proposing, which takes a different approach than what the governor introduced a few weeks ago,” Andrew Doba, Malloy’s spokesman said Wednesday.

“We’re trying to reconcile the implications of the Supreme Court decision with the need for state and local governments to respond to FOI requests in a timely manner,“ Doba said. “The governor has concerns about the implications of the leadership’s proposal in its current form.”

What’s the rush?

House Majority Leader Brendan Sharkey, D-Hamden, said there’s been a “tremendous amount of anxiety about this issue since last June when the Supreme Court issued a decision.”

He said the impact of the decision had far reaching implications and many town clerks, tax assessors, and town officials are facing difficulty dealing with the decision because they don’t know who belongs to this protected class of individuals.

In fact, Sharkey said the problem was such an emergency that they almost attempted to draft legislation in October during the special session on jobs, but they were unable to get their arms around a solution in time.

Land records, dog licenses, property records, voter lists, and the dozens of other public records held by municipal officials have been held off limits for the most part since the ruling in June.

Av Harris, spokesman for the Secretary of the State, said that since the Supreme Court ruling was issued, they have had no way of knowing who is part of a protected class, so the Secretary of the State’s office hasn’t been fulfilling requests for voter lists even though the lists would normally be available under the Freedom of Information Act.

“Until the General Assembly cleans up the law, we aren’t allowed to give out the voter file,” Harris said Wednesday. “The burden is on the government agency not to disclose the information and we just can’t be certain.”

Some suspect obtaining a voter list is part of House Speaker Chris Donovan’s motivation for passing the legislation so quickly. Donovan is running for Congress and a voter list is a crucial component to a campaign.

But Sharkey said lack of access to the state voter file “is not the driving force behind the proposal.”

“It’s the driving anxiety of all the public officials,” he said.

Sharkey said Malloy’s bill “is not comprehensive enough and did not really address the Supreme Court decision.”

Malloy’s bill eliminates the mandate to comply with the Supreme Court ruling, but says that no public agency may disclose the “residential addresses” of the 12 protected classes provided that the employee has submitted a written request for nondisclosure to their human resources department.

Donovan’s bill asks local officials to make a copy of the record requested and to redact a person’s residential address prior to disclosing the document, and also asks municipalities to make a reasonable effort to erase the addresses from electronic databases. Earlier versions of Donovan’s bill exempted land records, voter lists, and grand lists from this requirement, but it is unclear where the latest version of the bill may stand at the moment.

Donovan’s bill also asks the Labor Department to create a guide instructing employees how to opt out of the public record database and forms a joint standing committee to study the issue further.

The Connecticut Bar Association testified in favor of Malloy’s bill earlier Wednesday saying it will resolve the majority of the issues raised by the Supreme Court’s decision.

Even Peter Sachs, the attorney and private investigator who brought the FOIA complaint that eventually led to the Supreme Court decision, testified Wednesday that the law is not workable as it currently stands.

“This statute in its current state is not only an unfunded mandate, any attempt to fund doing something that cannot be done is, by definition, a complete and utter waste of taxpayer dollars,” Sachs wrote. “The proposed changes to Sec. 1-217 found in the Governor’s Bill 5035 will eliminate this mandate and allow those wishing to be protected by the statute to do so without requiring public agencies to perform impossible tasks at their own expense.”

The House is expected to take up Donovan’s bill Thursday afternoon.