June 3, 2008
SCOPE OF FREEDOM OF INFORMATION ACT
By: Sandra Norman-Eady, Chief Attorney
You asked (1) for a brief summary of the Freedom of Information Act's (FOIA) disclosure requirements; (2) how the act treats records of death, marriage, divorce, and real estate transactions; and (3) if individuals can ask agencies to treat their records confidentially.
FOIA was first enacted in 1975. It was based on the Right to Know Act of 1957 that required state and local agencies to disclose records they held to anyone who asked with limited exceptions. FOIA identifies the information held by public agencies that must be made available for public inspection and copying. This public information must be disclosed unless federal or state law prohibits it. Some of these prohibitions are in the act itself but most are scattered throughout the statutes. Public agencies may charge a fee for access to public records.
FOIA applies to all state and local governmental agencies, departments, institutions, bureaus, boards, and commissions. This includes all executive, administrative, and legislative offices, and the administrative functions of the judicial branch and the Division of Criminal Justice.
Death and marriage records are generally available to adult members of the public who request them and pay a fee (CGS § 7-51a). Interested parties should contact the registrar of vital statistics in the town where the death or marriage occurred or the Department of Public Health. Courts may order that family relation proceedings and records, including marriage and divorce proceedings and records, be kept confidential and not open to inspection except by court order if the nature of the proceeding or record requires confidentiality (CGS § 46b-11). Real estate transactions, as recorded on municipal land records, are generally available to the public. Recorded information typically includes the address and description of the property, current and previous owners, transaction dates, assessed property value, etc. However, certain transactions made by or for a public agency are exempt from disclosure as described below.
Individuals cannot simply request that public agencies not disclose otherwise public records or prevent access to public proceedings. However, individuals can contest the public nature of a record or proceeding and prevent the disclosure of personnel, medical, or similar files if disclosure would constitute an invasion of privacy (CGS § 1-210). Additionally, certain government officials and employees may prevent the disclosure of their residential address by providing public agencies with their business address in instances where residential addresses are required (CGS § 1-217). And parties involved in family relations matters may ask the court to close the proceedings and records. As indicated above, courts may do so if the nature of the proceeding or record requires confidentiality.
DISCLOSURE OF PUBLIC RECORDS UNDER FOIA (CGS § 1-210)
Material to be Disclosed
All records and files of state and local public agencies must be disclosed 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.
Public information subject to disclosure generally includes letters, memoranda, advisory opinions, recommendations, and reports used within agencies or sent to other agencies. Personnel files, birth records, and confidential tax records must be disclosed to the person who is the subject of the information. Also specifically subject to disclosure are tenement house and nursing home inspection records, arrest records that have not been erased, except those of juveniles, the names of firms obtaining bid documents, and employment contracts.
Material Exempt from Forced Disclosure Under the Act
FOIA contains 20 categories of information that public agencies do not have to disclose:
1. preliminary drafts or notes;
2. personnel and medical files and similar files, if disclosure would constitute an invasion of personal privacy;
3. certain law enforcement records, including arrest records of juveniles;
4. records relating to pending claims and litigation;
5. trade secrets;
6. questions, scoring keys, and related materials used in licensing, employment, and academic exams;
7. real estate appraisals, estimates, and evaluations related to property acquisition or prospective public supply or construction contracts, until the transaction is complete or the project abandoned;
8. personal financial data acquired by a licensing agency;
9. records relating to collective bargaining strategies or negotiations;
10. records, tax returns, reports, and statements exempt under federal or state law and communications privileged by the attorney-clientrelationship;
11. with certain exceptions related to regional schools, names, and addresses of public school students without the consent of a student who is at least 18 or the parents of a younger student;
12. information obtained illegally;
13. investigation records and names of employees reporting problems under the “whistle-blowing” statute;
14. adoption records and related information;
15. unprocessed or uncertified pages of primary, nominating, referendum, and town meeting petitions;
16. records of complaints pending before a municipal or district health authority or department;
17. educational records that are not subject to disclosure under the federal Family Educational Rights and Privacy Act;
18. records the correction commissioner or mental health and addiction services commissioner reasonably believes, if disclosed, would result in a safety risk at or risk of escape from a correctional institution or Whiting Forensic Institute;
19. security records; and
20. records that would compromise the security or integrity of information technology systems.