Government Administration and Elections Committee

JOINT FAVORABLE REPORT

SPONSORS OF BILL:

Government Administration and Elections Committee

REASONS FOR BILL:

Some municipalities have found the current seven day posting requirement for public agency meeting minutes (found in PA 08-3) to be onerous if not impossible to fulfill with available personnel and funds. Their subsequent fear of legal action in light of possible noncompliance has led to the shutting down of several municipal websites; municipalities have sacrificed a useful tool in order to avoid the costs associated with potential legal proceedings.

The substitute language (LCO No. 4561) changes the seven day requirement to fourteen days; changes the October 1, 2009 exemption end date to December 31, 2009 if such public agency files a notice with the applicable town clerk indicating the reason preventing compliance; and provides for further exemption (beginning January 1, 2010 and ending January 1, 2011) if such public agency files a notice with the commission describing the hardship that prevents such public agency from complying with the posting requirement.

RESPONSE FROM ADMINISTRATION/AGENCY:

No response was provided.

NATURE AND SOURCES OF SUPPORT:

Minority Leader Lawrence F. Cafero, Jr., 142^nd State House District: State government is asking the citizens of the state to conserve any way possible and our cities and towns are in the same situation. They are looking to save every nickel and dime in their town budgets. This bill and other proposals like it can give municipalities a way to save some of that money.

This bill recognizes that if municipalities have a hardship in posting the minutes on their websites, they should not have to comply with the mandate.

State Senator Robert J. Kane, 32^nd District: This bill represents the least the legislature should do for small towns that rely on volunteers to run their governments. But, the right thing to do is to simply repeal the online posting requirement for small towns. Otherwise, some towns will simply find it less onerous to close down their municipal websites, and that would be an unfortunate loss to the townspeople who use them.

State Representative Pamela Z. Sawyer, 55^th District: This proposal would provide an opportunity for the Freedom of Information Commission to consider requests from municipalities that demonstrate a hardship for not being able to post minutes of local meetings within seven days on their website. The provisions of Public Act 08-3 adopted in the 2008 June Special Session have placed a burden on the small towns in the 55^th District that do not have the resources to post this information in such a short timeframe.

It is essential that towns who have stated their case before the FOI Commission as being unable to post minutes within the one week time frame:

Diane Cece, Resident of Norwalk, CT: Every municipality with a current website should have been prepared to comply on 10-1-08, but there are understandable challenges to compliance. Therefore, this bill is the most equitable solution in that it still requires 100% compliance unless relief is granted by the FOI Commission. Any municipality receiving a hardship waiver should be required to reapply for that waiver every 12 months.

Joyce P. Mascena, Glastonbury Town Clerk and Chair, Connecticut Town Clerks Association Inc. (CTCA) Legislative Committee; Patricia Strauss, Westport Town Clerk and Vice-Chair, CTCA Legislative Committee: The Town Clerks Association agrees with the date change to provide more time for municipalities to plan for compliance.

NATURE AND SOURCES OF OPPOSITION:

Colleen M. Murphy, Executive Director & General Counsel, Freedom of Information Commission: The FOIC does have concerns with the bill as drafted. Lines 103-109 (which would add a subdivision (h) to Conn. Gen. Stat. §1-225) essentially exonerate a public agency for the period from October 1, 2008 (the original effective date of Public Act 08-03) until October 1, 2009, for any failure to follow the requirements of Public Act 08-03, as long as the agency “provides a reason” for its failure. It would appear that the intent of this provision is to move the effective date of the Public Act 08-03 from October 1, 2008 to October 1, 2009. However, if that is the intent, the better approach would be to say so directly. The FOIC does not object to giving agencies that are having trouble complying with the law more time to study and address their concerns about the new requirements. However, the bill as written will yield unnecessary formal complaints to the FOIC, which will require processing and adjudication, merely to ascertain whether an agency had “a reason” for failing to comply. This will be both time-consuming and costly for both the agencies involved and the FOIC, which, in 2008 received 806 formal complaints.

The FOIC also has significant reservations about lines 110-117 (which would add a new subdivision (i) to Conn. Gen. Stat. §1-225). While it is understood that some of the state's smaller communities might still have difficulties complying, the proposed language is overly broad.

If there is a desire to provide some relief to the smallest of towns, perhaps a better approach might be to tie compliance with population size, following the example set by Arizona, which requires electronic posting (of meeting notices) on web sites for cities and towns with populations over a certain size. (See A.R.S., §38-431.02(A)(4)). Or, if there is a desire to assist cities and towns that truly lack resources, perhaps a better approach would be to tie compliance to resources, following the example of Illinois, which requires agencies whose web sites are maintained by full time staff to post their agendas on-line (Public Act 94-0028) or Texas, which requires electronic filing of various items, by entities that maintain an Internet web site or have a web site maintained for them (Section 551.056).

There has been significant positive feedback concerning the web site requirements. Many towns appear to be readily complying with the new law and actually report that their workloads have diminished because more people are using the websites and not calling or visiting offices for agendas, notices, and minutes. For those towns having difficulty with the new law, the FOIC has offered the services of its very limited IT staff (one part-time position at this time) to aid in technical compliance (see the FOIC's web site: www.ct.gov/foi).

State Representative Joan A. Lewis, 8^th District: I appreciate the Committee's raising this bill to address the burden places on small towns by legislation requiring Minutes and Agendas be posted on a town's website. However, in this economy, it is not acceptable to set a date of October 2009 for compliance. It is simply not feasible for many Towns to spend the money to hire IT staff to meet the posting requirements. Appeals would require administrative time and cost at a time when many towns are cutting back on staff. Therefore, the bill should extend the date out at least to 2011, or repeal the requirement.

This is just not the time to impose such a burden on Connecticut's towns—particularly the smaller towns. Many small towns shut down their websites rather than be exposed to FOI penalties. The closing of the websites has an adverse effect on the townspeople (which is the opposite of what the legislature is trying to accomplish) who often browse the website for dates and times of public meetings, membership, town events etc. They are now denied access to this information.

State Senator L. Scott Frantz, 36^th District: Local boards and commissions have had difficulty administering this mandate. In fact, some municipalities have shut down their websites entirely to avoid the provisions in last year's act, limiting the public's access to local information and contradicting the very point of Freedom of Information. Legislators from both parties, those from large cities and those from small towns, have discussed the need for municipal relief from unfunded mandates this session. This is one mandate the legislature can repeal.

This bill attempts to make the provisions of last year's act more workable by holding harmless municipalities that fail to post their minutes online provided they offer a reason for such failure. However, this bill fails to address the requirement that agendas be posted online within 24 hours prior to their respective meetings. Efforts to address some of the municipal concerns are appreciated, but a simple repeal of the mandate is the proper remedy.

Kachina Walsh-Weaver, Senior Legislative Associate, Connecticut Conference of Municipalities: Short of a complete repeal of PA 08-3 of the June Special Session, careful consideration must go into a comprehensive proposal to (1) alleviate the current hardships this law poses to municipalities; (2) delay the implementation date of the requirements; (3) provide greater clarity on the definition of “public agency” and “if available”; (4) extend the deadline for actual posting on the website to 14 days after minutes have been approved; (5) clarify retention time on web sites; and (6) provide protection for municipal officials if, due to technical difficulties, certain items are not able to be posted within the timeframe allowed.

First Selectman Ralph Eno; Town of Lyme; Connecticut Council of Small Towns: While well intentioned, the proposed legislation does not provide true mandate relief. In its present form, this bill merely provides that a town will not be deemed in violation of the mandate from October 1, 2008 through October 1, 2009 if it provides the FOI Commission with a reason for an alleged transgression. From this point on, a municipality must demonstrate a hardship to the Commission to avoid being cited for a violation of the website posting mandate. The outcomes of FOI Commission hearings are never certain and require not just a commitment of time but frequently the expenditure of funds for legal advice and representation.

The FOIA statute, as recently amended, unquestionably imposes additional costs and burdens on communities statewide, especially small towns that do not have full time IT staff and traditionally rely on volunteers to take minutes and manage websites.

First Selectman Susan Bransfield, Town of Portland: The Town of Portland does post agendas and minutes on its website, but some minutes are not available electronically and posting scanned documents can often take up too much space on the website. Like most small towns, Portland has a number of boards and commissions who rely on volunteers to take minutes and provide them to the clerk within the required seven days. It is often difficult for them to comply with the current statute. If additional formatting burdens (relative to the preparation of minutes and agendas) are placed on volunteers, it will prove very discouraging.

Towns are concerned that if minutes or agendas are not posted within the statutory timeframes, they will be faced with an FOI complaint, resulting in potential civil penalties, legal fees and time-consuming hearings which towns can ill afford. Rather than mandate the law at this time, the state should work with towns to encourage them to post documents on their websites and enhance the public's right to know. Many small towns were moving in the right direction – becoming more transparent by posting additional information on town websites. Unfortunately, the fear of violating the strict timeframes has caused several towns—including Middlefield, Colebrook, Lyme, Voluntown, Andover, and Killingworth—to shut down or suspend their websites.

First Selectman Bill Black, Town of Marlborough: Towns are challenged by hourly rates charged for IT services, which increase costs to the Towns. It is tough to budget this item since the length of the minutes vary and boards/commissions hold special meetings in addition to their regular meetings, therefore making it difficult to budget the number of meetings and the length of the minutes for a fiscal year.

The Town of Marlborough is a firm believer in the Freedom of Information Act and that citizens should have public information available to them, however, the website posting seven (7) day requirement is an undue burden on many municipalities. Please know that some communities have shut down their websites as means to comply with the law. This seems counterproductive and in direct contradiction with the intent of providing public access to the Town information, however, if this law is not amended this likely will force other municipalities to follow suit of those who have already shut down their websites.

The timeframe for posting minutes on the Town website be amended so that the period of filing should be doubled or eliminated.

First Selectman Frank Chiaramonte; Town of Harwinton; Connecticut Council of Small Towns: Small towns rely heavily on volunteers to record minutes of meetings, type those minutes, and send them to a municipal employee for posting the information on the town's website. Many towns lack the staff to constantly update their websites. In many small towns, volunteers also maintain the websites. Asking the volunteers to type up the minutes of a meeting, which are often taken in longhand, and to then also put the minutes online, all within seven days, is too much to ask. Rather than risk being penalized for not complying with state law, Harwinton shut down its site in order to have time to find ways of complying with the law.

Unfortunately, the law is very unclear as to what would be considered a violation of the law. If the person responsible for posting documents to the website is unavailable or the website itself is down due to technical difficulties, the town may be in violation. These concerns have not been sufficiently answered, so towns are uncertain as to whether they have the resources to comply with the law.

Although Harwinton has been working with a vendor to develop a program that aids in sorting minutes from agendas and in assigning a date to the item, which will help in complying with the new law, it has taken staff time and resources that could have been devoted to other needs. The Town therefore supports efforts to repeal this law to give towns some relief from unfunded mandates that, combined with shrinking revenues and increased costs, are placing a crushing burden on Connecticut's towns and cities.

First Selectman Robert F. Burbank, Town of Andover: At present the Andover Board of Selectmen has voted to shut down the town sponsored website because some residents will take the town to FOI for virtually any reason. The cost of being brought before FOI is approximately $1,000 in legal fees for each complaint. Under the present requirement all boards and sub-committees, which in Andover are volunteer boards, would be under the limited timeframe of completing these minutes, conveying them to the webmaster who in turn has a very limited time frame for posting such items.

Consideration of legislation modifying or even eliminating the requirement to post these minutes would be welcomed in most small towns which utilize these websites to keep in contact with their citizens.

Joseph V. Camposeo, Town Clerk, Town of Manchester: Although the intent of the proposed modifications holds some validity, there remains much left to be done for this law to be more efficient and adaptable for all stakeholders.

Because everyone has an interest in open government, this bill does not satisfy the need for additional changes in the law. The legislature should consider appointing a committee of stakeholders to find a better way to make the concept of web posting work more effectively. This action will provide the opportunity to bring forth recommendations based on the input of each stakeholder. Ultimately, this will significantly improve what is now in place.

Stephen L. Wadelton, Volunteer Webmaster, Town of Washington Depot: Since the requirement for posting of minutes with the town clerk has not changed from its historic 7 days, increasing the web posting requirement to 14 days should be reasonable for any webmaster to meet, and still respect the public's interests. I urge you to consider that as a minimum extension. The substitute language resolves this concern.

Chris Powell; Managing Editor, Journal Inquirer; Legislative Chairman, Connecticut Council on Freedom of Information: This bill presumes that posting the minutes of public agency meetings on the Internet is a great hardship and expense, and the bill's intent is to postpone indefinitely any enforcement of the recent law requiring public agencies to make such postings. Such a presumption is not correct.

Advocates of this bill should be asked to describe the efforts they have made to comply with the minutes-posting law and to learn what it takes to start and operate an Internet site. If this mandate really has stumped them, they should seek advice from any town that is operating its own Internet site, the Connecticut Conference of Municipalities, or the State Department of Information Technology. Just a little effort to get started here is bound to serve the public better and reduce costs, as well.

Scott Coleman, President, PC America: Free services exist and are at the disposal of municipalities seeking to comply with posting requirements.