Connecticut Seal

nsSmallSeal

House of Representatives

File No. 804

General Assembly

 

January Session, 2017

(Reprint of File No. 460)

Substitute House Bill No. 7221

 

As Amended by House Amendment

Schedule "A"

Approved by the Legislative Commissioner

May 26, 2017

AN ACT CONCERNING ACCESS TO WATER PLANNING INFORMATION.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Subdivision (19) of subsection (b) of section 1-210 of the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2017):

(19) Records when there are reasonable grounds to believe disclosure may result in a safety risk, including the risk of harm to any person, any government-owned or leased institution or facility or any fixture or appurtenance and equipment attached to, or contained in, such institution or facility, except that such records shall be disclosed to a law enforcement agency upon the request of the law enforcement agency. Such reasonable grounds shall be determined (A) (i) by the Commissioner of Administrative Services, after consultation with the chief executive officer of an executive branch state agency, with respect to records concerning such agency; and (ii) by the Commissioner of Emergency Services and Public Protection, after consultation with the chief executive officer of a municipal, district or regional agency, with respect to records concerning such agency; (B) by the Chief Court Administrator with respect to records concerning the Judicial Department; and (C) by the executive director of the Joint Committee on Legislative Management, with respect to records concerning the Legislative Department. As used in this section, "government-owned or leased institution or facility" includes, but is not limited to, an institution or facility owned or leased by a public service company, as defined in section 16-1, other than a water company, as defined in section 25-32a, a certified telecommunications provider, as defined in section 16-1, [a water company, as defined in section 25-32a,] or a municipal utility that furnishes electric [, gas or water] or gas service, but does not include an institution or facility owned or leased by the federal government, and "chief executive officer" includes, but is not limited to, an agency head, department head, executive director or chief executive officer. Such records include, but are not limited to:

(i) Security manuals or reports;

(ii) Engineering and architectural drawings of government-owned or leased institutions or facilities;

(iii) Operational specifications of security systems utilized at any government-owned or leased institution or facility, except that a general description of any such security system and the cost and quality of such system [,] may be disclosed;

(iv) Training manuals prepared for government-owned or leased institutions or facilities that describe, in any manner, security procedures, emergency plans or security equipment;

(v) Internal security audits of government-owned or leased institutions or facilities;

(vi) Minutes or records of meetings, or portions of such minutes or records, that contain or reveal information relating to security or other records otherwise exempt from disclosure under this subdivision;

(vii) Logs or other documents that contain information on the movement or assignment of security personnel; and

(viii) Emergency plans and emergency preparedness, response, recovery and mitigation plans, including plans provided by a person to a state agency or a local emergency management agency or official. [; and

(ix) With respect to a water company, as defined in section 25-32a, that provides water service: Vulnerability assessments and risk management plans, operational plans, portions of water supply plans submitted pursuant to section 25-32d that contain or reveal information the disclosure of which may result in a security risk to a water company, inspection reports, technical specifications and other materials that depict or specifically describe critical water company operating facilities, collection and distribution systems or sources of supply;]

Sec. 2. Subsection (d) of section 1-210 of the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2017):

(d) Whenever a public agency, except the Judicial Department or Legislative Department, receives a request from any person for disclosure of any records described in subdivision (19) of subsection (b) of this section under the Freedom of Information Act, the public agency shall promptly notify the Commissioner of Administrative Services or the Commissioner of Emergency Services and Public Protection, as applicable, of such request, in the manner prescribed by such commissioner, before complying with the request as required by the Freedom of Information Act. [and for information related to a water company, as defined in section 25-32a, the public agency shall promptly notify the water company before complying with the request as required by the Freedom of Information Act.] If the commissioner, after consultation with the chief executive officer of the applicable agency, [or after consultation with the chief executive officer of the applicable water company for information related to a water company, as defined in section 25-32a,] believes the requested record is exempt from disclosure pursuant to subdivision (19) of subsection (b) of this section, the commissioner may direct the agency to withhold such record from such person. In any appeal brought under the provisions of section 1-206 of the Freedom of Information Act for denial of access to records for any of the reasons described in subdivision (19) of subsection (b) of this section, such appeal shall be against the chief executive officer of the executive branch state agency or the municipal, district or regional agency that issued the directive to withhold such record pursuant to subdivision (19) of subsection (b) of this section, exclusively, or, in the case of records concerning Judicial Department facilities, the Chief Court Administrator or, in the case of records concerning the Legislative Department, the executive director of the Joint Committee on Legislative Management.

Sec. 3. Section 25-32d of the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2017):

(a) Each water company, as defined in section 25-32a, and supplying water to one thousand or more persons or two hundred fifty or more consumers and any other water company as defined in said section requested by the Commissioner of Public Health shall submit a water supply plan to the Commissioner of Public Health for approval in accordance with the requirements of this section and with the concurrence of the Commissioner of Energy and Environmental Protection. The concurrence of the Public Utilities Regulatory Authority shall be required for approval of a plan submitted by a water company regulated by the authority. The Commissioner of Public Health shall consider the comments of the Public Utilities Regulatory Authority on any plan which may impact any water company regulated by the authority. The Commissioner of Public Health shall distribute a copy of the plan to the Commissioner of Energy and Environmental Protection and the Public Utilities Regulatory Authority. A copy of the plan shall be sent to the Secretary of the Office of Policy and Management for information and comment. A plan shall be revised at such time as the water company filing the plan or the Commissioner of Public Health determines, or at intervals of not less than six years or more than nine years after the date of the most recently approved plan. Unless the Commissioner of Public Health requests otherwise, any water company that fails to meet public drinking water supply quality and quantity obligations, as prescribed in state law or regulation, shall be required to file plan revisions six years after the date of the most recently approved plan. On and after October 1, 2009, upon the approval of a water supply plan, any subsequent revisions to such plan shall minimally consist of updates to those elements described in subsection (b) of this section that have changed after the date of the most recently approved plan provided the Commissioner of Public Health has not otherwise requested submission of an entire water supply plan.

(b) Any water supply plan submitted pursuant to this section shall evaluate the water supply needs in the service area of the water company submitting the plan and propose a strategy to meet such needs. The plan shall include: (1) A description of existing water supply systems; (2) an analysis of future water supply demands; (3) an assessment of alternative water supply sources which may include sources receiving sewage and sources located on state land; (4) contingency procedures for public drinking water supply emergencies, including emergencies concerning the contamination of water, the failure of a water supply system or the shortage of water; (5) a recommendation for new water system development; (6) a forecast of any future land sales, an identification which includes the acreage and location of any land proposed to be sold, sources of public water supply to be abandoned and any land owned by the company which it has designated, or plans to designate, as class III land; (7) provisions for strategic groundwater monitoring; (8) an analysis of the impact of water conservation practices and a strategy for implementing supply and demand management measures; (9) on and after January 1, 2004, an evaluation of source water protection measures for all sources of the water supply, based on the identification of critical lands to be protected and incompatible land use activities with the potential to contaminate a public drinking water source; and (10) a brief summary of the water company's underground infrastructure replacement practices, which may include current and future infrastructure needs, methods by which projects are identified and prioritized for rehabilitation and replacement and funding needs.

(c) For security and safety reasons, procedures for sabotage prevention and response shall be provided separately from the water supply plan as a confidential document to the Department of Public Health. Such procedures shall not be subject to disclosure under the Freedom of Information Act, as defined in section 1-200. Additionally, procedures for sabotage prevention and response that are established by municipally owned water companies shall not be subject to disclosure under the Freedom of Information Act, as defined in section 1-200.

(d) Any water supply plan, including any subsequent revisions to such plan, submitted by a water company pursuant to this section shall be accompanied by a redacted copy of such plan, or subsequent revision to such plan. When submitting a redacted copy of a water supply plan, a water company shall redact the information exempted from disclosure under subsection (e) of this section.

(e) The following records filed with any public agency by a water company are confidential and shall not be subject to disclosure under the Freedom of Information Act, as defined in section 1-200:

(1) Cybersecurity plans and measures, supervisory control and data acquisition systems, information and communications systems, system access codes and specifications, vulnerability assessments, internal security audits, security manuals, security training or security reports, including, but not limited to, security assessments, plans and procedures, operational and design specifications of water and sewage treatment facility security systems or risk management plans;

(2) Emergency contingency plans and emergency preparedness plans, incident management plans, response, recovery and mitigation plans or critical customer lists, including plans provided by a person to a federal or state agency or a federal, state or local emergency management agency or official, or documents or portions of documents that identify or describe procedures for sabotage prevention and response, except drought management and response plans shall be subject to disclosure;

(3) Design drawings or maps identifying specific locations, detailed schematics and construction details of wells, source water intakes, water mains, tunnels, storage facilities, water and sewage treatment facilities or pump stations and pressure reducing stations, and other distribution system pressure and flow control valves and facilities, provided information regarding general location of water mains, wells and interconnections shall be subject to disclosure;

(4) Dam specifications or dam safety documents described in sections 22a-401 to 22a-411, inclusive, including (A) inspections reports, engineering studies or reports, drawings, plans and specifications detailing construction or rehabilitation, and (B) emergency action plans prepared pursuant to section 22a-411a including plans provided to a federal or state agency or a federal, state or local emergency response or emergency management agency or official;

(5) Building floor or structural plans, specifications of structural elements or building security systems or codes;

(6) Detailed network topology maps;

(7) Specific locations of or specifications regarding electrical power, standby generators or fuel systems for water system facilities, except that general information regarding electrical power, standby generators or fuel systems for water system facilities may be disclosed;

(8) Operational specifications, schematics and procedures of water and sewage treatment plant processes and associated equipment and chemicals, including, but not limited to, facility use of chlorine gas storage and delivery and the location of chemicals, except that a general description of any such treatment plant may be disclosed;

(9) Logs or other documents that contain information regarding the movement or assignment of water system and sewage treatment facilities and security personnel;

(10) Distribution system hydraulic models; or

(11) Any other record if there are reasonable grounds to believe the disclosure of such record may result in a safety risk. Upon request by the water company, such record may be reviewed by the Commissioner of Administrative Services, in consultation with the chief executive officer of the executive branch state agency or municipal water or sewage treatment entity that has custody of such record, to determine if such reasonable grounds exist.

[(d)] (f) The Commissioner of Public Health, in consultation with the Commissioner of Energy and Environmental Protection and the Public Utilities Regulatory Authority, shall adopt regulations in accordance with the provisions of chapter 54. Such regulations shall include a method for calculating safe yield, the contents of emergency contingency plans and water conservation plans, the contents of an evaluation of source water protection measures, a process for approval, modification or rejection of plans submitted pursuant to this section, a schedule for submission of the plans and a mechanism for determining the completeness of the plan. The plan shall be deemed complete if the commissioner does not request additional information within ninety days after the date on which the plan was submitted or, in the event that additional information has been requested, within forty-five days after the submission of such information, except that the commissioner may request an additional thirty days beyond the time in which the application is deemed complete to further determine completeness. In determining whether the water supply plan is complete, the commissioner may request only information that is specifically required by regulation. The Department of Energy and Environmental Protection and the Public Utilities Regulatory Authority, in the case of any plan which may impact any water company regulated by that agency, shall have ninety days upon notice that a plan is deemed complete to comment on the plan.

[(e)] (g) Any water company, when submitting any plan or revision or amendment of a plan after July 1, 1998, which involves a forecast of land sales, abandonment of any water supply source, sale of any lands, or land reclassification, shall provide notice, return receipt requested, to the chief elected official of each municipality in which the land or source is located, the Nature Conservancy, the Trust for Public Land and the Land Trust Service Bureau and any organization on the list prepared under subsection (b) of section 16-50c. Such notice shall specify any proposed abandonment of a source of water supply, any proposed changes to land sales forecasts or any land to be designated as class III land in such plan. Such notice shall specify the location and acreage proposed for sale or reclassification as class III land and identify sources to be abandoned and shall be provided no later than the date of submission of such plan or revision. Such notice shall indicate that public comment on such plan or revision shall be received by the Commissioners of Public Health and Energy and Environmental Protection not later than sixty days after the date of notice. The Commissioner of Public Health shall take such comment into consideration in making any determination or approval under this section.

This act shall take effect as follows and shall amend the following sections:

Section 1

July 1, 2017

1-210(b)(19)

Sec. 2

July 1, 2017

1-210(d)

Sec. 3

July 1, 2017

25-32d

The following Fiscal Impact Statement and Bill Analysis are prepared for the benefit of the members of the General Assembly, solely for purposes of information, summarization and explanation and do not represent the intent of the General Assembly or either chamber thereof for any purpose. In general, fiscal impacts are based upon a variety of informational sources, including the analyst's professional knowledge. Whenever applicable, agency data is consulted as part of the analysis, however final products do not necessarily reflect an assessment from any specific department.


OFA Fiscal Note

State Impact: None

Municipal Impact: None

Explanation

The bill, which makes changes to the Freedom of Information Act exemption for certain water company records, does not result in a fiscal impact to the state or municipalities.

House “A” struck the language of the underlying bill, its associated fiscal impact, and replaced it with language that is not anticipated to result in a fiscal impact to the state or municipalities.

The Out Years

State Impact: None

Municipal Impact: None

OLR Bill Analysis

sHB7221 (as amended by House "A")*

AN ACT CONCERNING ACCESS TO WATER PLANNING INFORMATION.

SUMMARY

This bill revamps the Freedom of Information Act (FOIA) exemption for certain water company records. Generally, it removes water company records from the coverage of an existing FOIA exemption that applies to all public agency records if reasonable grounds exist to believe that their release could pose a security risk. It instead identifies specific water company records filed with a public agency as confidential and not subject to disclosure under FOIA. In addition to these specified records, the bill also makes confidential any other water company record filed with a public agency if there are reasonable grounds to believe that disclosure may result in a safety risk.

The bill requires water companies, when submitting a water supply plan (or revision to a plan) to the Department of Public Health, to also submit a copy of the plan that is redacted in accordance with the bill's provisions on confidential records.

*House Amendment “A” (1) makes minor changes to the types of records not subject to disclosure; (2) adds the provision on submitting a redacted copy of a water supply plan; (3) modifies the procedure for determining whether there are reasonable grounds to believe that a safety risk exists; and (4) changes the effective date from October 1, 2017, to July 1, 2017.

EFFECTIVE DATE: July 1, 2017

APPLICABILITY OF FOIA TO WATER COMPANY RECORDS

Under FOIA, a “public agency” is generally any (1) state, municipal, regional, or quasi-public agency, including any judicial office, or (2) entity that is the functional equivalent of such agencies (CGS 1-200). The law defines a water company as any individual, municipality, or entity that owns, maintains, operates, manages, controls, or employs any pond, lake, reservoir, well, stream, or distributing plant or system that supplies water to two or more consumers or to 25 or more people on a regular basis (CGS 25-32a).

Thus, a water company itself is subject to FOIA if the company is a public agency. If a water company is not such a public agency, its records may still be subject to FOIA if they are submitted to a public agency (e.g., a water supply plan submitted to the Department of Public Health).

The bill revamps the FOIA exemption for certain water company records, as described below.

CURRENT EXEMPTION

Exempt Records

Existing law exempts records from disclosure under FOIA when there are reasonable grounds to believe that disclosure may result in a safety risk, including the risk of harm to any government-owned or -leased institution or facility. Under current law, a government-owned or -leased institution or facility includes an institution or facility owned or leased by a water company. The bill removes water company-owned or –leased institutions and facilities from this exemption and instead identifies specific water company records filed with a public agency as confidential and not subject to disclosure under FOIA (see RECORDS DEEMED CONFIDENTIAL BY THE BILL below).

Records covered by existing law's exemption generally include security manuals or reports; operational specifications of security systems; and emergency plans and emergency preparedness, response, recovery, and mitigation plans. Water company records covered by this exemption include:

Procedure for Determining Whether Exemption Applies

The bill makes a conforming change by eliminating the applicability to water company records of existing law's procedures for determining a security risk. Generally under these procedures, the administrative services or emergency services and public protection commissioner must determine whether there are reasonable grounds for a security risk, after consulting with the chief executive officer of the agency with custody of the record. For water company records, the bill also eliminates requirements in current law that the (1) custodial agency notify the water company of the request and (2) respective commissioners consult with the water company's chief executive officer when determining if a security risk exists.

RECORDS DEEMED CONFIDENTIAL BY THE BILL

The bill deems the following water company records filed with a public agency as confidential and not subject to disclosure under FOIA:

In addition to these specified records, the bill also makes confidential any other water company record filed with a public agency if there are reasonable grounds to believe that disclosure may result in a safety risk. Upon the water company's request, such a record may be reviewed by the administrative services commissioner, in consultation with the chief executive officer of the executive branch state agency or municipal water or sewage treatment entity that has custody of the record, to determine if reasonable grounds exist.

COMMITTEE ACTION

Public Health Committee

Joint Favorable Substitute

Yea

26

Nay

0

(03/24/2017)

Government Administration and Elections Committee

Joint Favorable

Yea

13

Nay

0

(04/13/2017)

TOP