July 1, 2005
PUBLIC AGENCY RECORDS
By: Sandra Norman-Eady, Chief Attorney
You asked for any recourse members of the public have when they are told that public information they have requested from a public agency under the Freedom of Information Act (FOIA) is lost or not in the agency's files. You also asked if statistics are available on the number of times public agencies claim information is lost or unavailable.
The public records administrator has established a records management program, which includes a retention schedule, for the books, records, papers, and documents of all state executive branch agencies and political subdivisions of the state (CGS § 11-8a). Public officials and employees must maintain public records in a manner consistent with this schedule and cannot remove, destroy, mutilate, transfer, or otherwise damage or dispose of them in violation of the law. Outgoing officials and employees must deliver public records to their successors (§ 11-8b).
FOIA requires the public agencies to disclose to the public any records or files that they maintain or retain unless a particular federal or state law makes them confidential. This includes any recorded data or information relating to public business prepared, owned, used, received, or retained by a public agency, whether it is handwritten, tape-recorded, printed, photostatted, photographed, computerized, or recorded by some other method. The act prohibits agencies from computerizing their records in a way that impairs public access to disclosable information (CGS §§ 1-210 and –211).
Anyone who is denied access to a requested document because the agency, contrary to the retention schedule, lost, misplaced, destroyed, or transferred it has a couple of options. He can report the denial to the public records administrator or state librarian, who can order any public official or employee to comply with the retention schedule and ask a court (or judge if the court is not in session) to enforce the order (i.e., order the agency to produce the document) (CGS §§ 11-8 and 11-8c). Alternatively, he can report the missing document to local law enforcement agents for a criminal investigation. By law, anyone who (1) willfully, knowingly, and intentionally destroys, mutilates, or otherwise disposes of any public record in violation of state law or (2) alters any public record, is guilty of a class A misdemeanor, punishable by a fine of up to $2,000, one year in prison, or both. Each occurrence constitutes a separate offense (CGS § 1-240(a)).
There are no statistics on the number of times public agencies deny access to public records because the requested records are lost or unavailable.