You asked for changes to the Freedom of Information Act (FOIA) during the past two years.

SUMMARY

The legislature passed six acts in the past two years that amended FOIA, four in 2002 and two in 2001. Most of the acts exempt records from FOIA's disclosure requirements. Several other acts make records confidential and not subject to disclosure under FOIA without amending the act itself. In the remainder of this report, we briefly summarize the provisions in the six acts that amend FOIA.

2002 LEGISLATIVE CHANGES

Disclosure of Residential Addresses

The act adds Commission on Human Rights and Opportunities members and employees to the list of government employees whose home addresses state and local agencies cannot disclose to the public. Their business addresses remain open to disclosure. The prohibition does not apply to personal information in Department of Motor Vehicle records, which is disclosable to governmental agencies and anyone else who agrees to use it for specified limited purposes.

Other exempt employees are federal and state court judges and magistrates, state and municipal police officers, departments of Correction and Children and Families employees, past or present state prosecutors and public defenders, Criminal Justice Division inspectors, judicial employees, firefighters, and Parole Board members and employees (PA 02-53).

Open Meeting Requirements

The act expands the definition of a caucus under the exemptions to FOIA's open meeting requirements. In so doing it allows members of a public agency to register with either the secretary of the state or town clerk their intention to act as a caucus, regardless of their political party affiliation, and thereby meet without being subject to the open meeting provisions of the FOIA. The agency members who decide to form either a majority or minority caucus must register with:

1. the secretary of the state, if the agency is a state agency;

2. the town clerk or clerk of a political subdivision, if the agency is a local agency; or

3. the town clerk in each town of a multi-town district or agency, such as a regional school district.

The act restricts each agency member to registering in only one caucus at a time. A member cannot change his caucus affiliation for FOIA purposes for the duration of his term of office and he retains his caucus membership regardless of any change in his political party enrollment (PA 02-130).

Disclosure of Security Information

By law, the public works commissioner and the chief court administrator can direct public agencies to withhold certain security-related records about buildings and facilities under their management or control from members of the public who request disclosure under FOIA. (The correction and mental health and addiction services commissioners can keep confidential similar records relating to their facilities. )

This act gives the Legislative Management Committee's executive director the same authority with respect to buildings and facilities under her management or control. Agencies that receive requests for such records must notify the executive director in the same way they currently notify other officials.

The act broadens the public works commissioner's authority; allowing him to decide whether to disclose security-related records of all state executive branch agencies, municipalities, and districts and regional agencies. He must consult with the head of each such agency before deciding on records for buildings and facilities under his management or control.

The act specifies that the authority of the public works commissioner, chief court administrator, and Legislative Management Committee's executive director to keep these records confidential does not affect law enforcement agencies' ability to access them. These officials must provide copies of records to law enforcement agencies that ask for them.

Exempt Records. The act exempts the following records from disclosure under FOIA if reasonable grounds exist to believe their release could pose a safety risk, including harm to anyone or any facility or equipment owned or leased by the state; a town; a private or municipal utility or a certified telecommunications provider, such as a long distance telephone company.

1. engineering and architectural drawings;

2. security systems' operational specifications (except a general description, cost, and quality of such a system);

3. training manuals that describe security procedures, emergency plans, or security equipment;

4. internal security audits; and

5. logs or other documents containing information on security personnel movement or assignments.

The act also exempts, under the same circumstances, (1) security manuals, (2) emergency plans and emergency recovery or response plans, and (3) staff meeting minutes or records, or portions of them, that contain or reveal security information or otherwise exempt records.

Notification. When a public agency, other than the Judicial Department and the Division of Criminal Justice, receives a request for a public record covered under the act, it must promptly notify the public works commissioner, in the manner he prescribes. In the case of legislative records, the Legislative Management executive director receives the notice and sets the notification requirements. The commissioner or director can deny the request if the act exempts the record from disclosure. The act makes the public works commissioner, rather than the executive branch agency, municipality, or district or regional agency, as the case may be, the defendant in any appeal by an aggrieved party to the Freedom of Information Commission (PA 02-133).

Confidentiality and Retention of Military Discharge Documents, Electronic Scanning of Public Records, and Waiver of Public Record Fees for Certain Officials

The act (1) with a few exceptions, requires public agencies to keep military discharge documents apart from other records and confidential for at least 75 years after the date they are filed, (2) gives members of the public the right to copy public records using hand-held scanners, and (3) eliminates the duty of municipal elected officials to pay certain copying fees.

Military Documents. The act allows veterans or their designees to file military discharge documents related to the business of a town or other public agency with the town clerk or the agency. With a few exceptions, it requires the town or agency, as the case maybe, to keep the documents apart from other records and confidential for at least 75 years after the date they are filed. The retention requirement does not apply to the State Library Board or state librarian. It applies to military documents, other than those recorded on land records, filed before, on, and after October 1, 2002. It applies to land records filed only on and after that date. "Military discharge documents" are those that contain personal information and that evidence a veteran's discharge or retirement from the U. S. Army, Navy, Marine Corps, Coast Guard, or Air Force. "Veteran" means a person honorably discharged from active service or the reserves.

Public agencies must make these records available at all times to:

1. the veteran subject of the record or the conservator of his estate or person;

2. the public, if the information is necessary to or helpful in establishing a veteran's eligibility for any local, state, or federal benefit or program; or

3. people who need the information to provide a benefit to, or acquire a benefit for, the veteran or his estate, if they submit satisfactory evidence of the need to the agency;

4. the state librarian in the performance of his duties; or

5. a state-incorporated or -authorized genealogical society or its members.

Hand-held Scanners and Copying Fees. The act gives members of the public the right to copy public records, using a battery operated electronic scanning device that leaves no marks or impressions on the record and that does not unreasonably interfere with the operations of the agency that maintains the record. It allows public agencies to establish a fee of up to $ 10 for this purpose.

The act requires each municipal agency to waive all copying fees for the municipality's elected officials who certify that the records pertain to their official duties. By law, state agencies can charge up to 25 cents per page for copies and municipal agencies can charge up to 50 cents (PA 02-137).

2001 LEGISLATIVE CHANGES

Privatized Public Records Subject to FOIA

By adding to the definition of a public agency, this act extends FOIA's provisions to an individual, business, or organization's records and files that relate to the entity's performance of a governmental function. It defines "governmental function" as the administration or management of a public agency's program authorized by law to be performed by an entity (1) receiving public agency funding;

(2) participating in policy formation and decisions connected to the program that binds the agency; and (3) where the public agency is significantly, but not necessarily directly or continuously, involved in or regulating the entity's administration or management.

The entity's performance must derive from a legally authorized contract of more than $ 2. 5 million. The act excludes entities that merely provide goods and services to an agency and have no responsibility to administer or manage the agency's program. And, an agreement between a state agency and a foundation established to support it is not considered a contract for the act's purposes.

The contract must provide that the (1) agency is entitled to copies of the entity's covered records and files and (2) records are subject to FOIA and disclosable to the public. Anyone who wants to inspect or copy them must make his request to the agency. And, pursuant to FOIA, complaints must go to the Freedom of Information Commission.

The act expands the definition of a public record to include all records to which a public agency is entitled by law or contract. The FOIA makes public records available for inspection or copying and exempts records that an agency can keep confidential for a variety of specified reasons. It also requires public agencies to comply with open meeting requirements (PA 01-169).

Disclosure of Residential Addresses of Certain Employees

The act prohibits a public agency from disclosing, under the Freedom of Information Act, the residential address of a Public Defender Services Division social worker or Judicial Branch employee. Their business addresses remain open to disclosure (PA 01-186).

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