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Don’t Mess With FOI

March 14th, 2011 · 1 Comment · Analysis and Comment

When it comes to courts, cops and public servants Andy Thibault is one of Connecticut’s top watchdogs. He’s not happy with a proposal to consolidate the state’s Freedom of Information Commission with other state watchdog groups. A former FOI commissioner, Andy is host of The Cool Justice Report: cooljustice.blogspot.com/. He shares his views on the proposal under consideration by the Connecticut Legislature.

Connecticut’s Legislature thrusts an ice pick into the neck of its Freedom of Information Commission today, acting on the new governor’s intended initiative to save money and increase efficiency.

In this particular case, Gov. Dannel Malloy’s maneuver will achieve neither goal.

FOI is one of the few arenas in which rank-and-file citizens can level the playing field with well-insulated public officials who have no notion of public service and could care less. Its very existence goes to the core of our so-called democratic republic.

Here’s what the Connecticut Legislature declared in 1975:

“… that secrecy in government is inherently inconsistent with a true democracy, that the people have a right to be fully informed of the action taken by public agencies in order that they may retain control over the instruments they have created; that the people do not yield their sovereignty to the agencies which serve them; that the people in delegating authority do not give their public servants the right to decide what is good for them to know and that it is the intent of the law that actions taken by public agencies be taken openly and their deliberations be conducted openly and that the record of all public agencies be open to the public except in those instances where a superior public interest requires confidentiality.”

In practical terms, the FOI law – when capably pursued and enforced – reminds bureaucratic hacks and other miscreants that they are the mere custodians of public records. We, the people, own these records.

Instead of chopping up the FOI Commission, Gov. Malloy should propose the following:

· Increase the maximum fine for FOI violations from $1,000 to $10,000 or more.

· Ensure that those who violate their oaths of office by suppressing public information and are not acting under the color of law pay the fines themselves.

· Require municipalities and state agencies who use taxpayer money to suppress public information to disclose the legal fees they incur on a daily basis.

· Stop the Attorney General’s office from automatically representing state agencies that suppress public information. This could result in significant staff reductions.

· Conduct a comprehensive statewide audit of all the money wasted by municipalities and state agencies to suppress public information. Hint: The FOI law is a tool for this. Because the governor needs those records to do his job, it wouldn’t cost him any money.

· Close loopholes that allow public servants to hide documentation of legal fees they generate, e.g., municipalities or school boards using the cloak of insurance arrangements to hide a virtual welfare state for hack lawyers.

· Vigorously enforce subpoenas compelling public officials to appear before the FOI Commission. If necessary, hire some cops from Wisconsin to tackle them.

By way of disclosure, I served as a commissioner for Connecticut’s FOI Commission from 1995-1996 and I have indicated I would be happy to serve again. This piece is written in utter disregard of that notion.

Every governor since Bill O’Neill has tried to gut or dismember FOI.

Here’s the backflip the Legislature is on track to take now, unless citizens rise up: merging the Freedom of Information Commission, the Office of State Ethics, the Elections Enforcement Commission, the Judicial Review Council and the State Contracting Standards Board.

The Legislature’s Government Administrations and Elections Committee was to begin hearings on gutting FOI today.

Mitchell Pearlman, the founding executive director and chief legal counsel of Connecticut’s FOI Commission, said in a major op-ed piece that such a proposal would “create a more expensive bureaucracy, result in less rather than more transparency and accountability and effectively gut some of the best and most well-regarded government agencies.”

“The merger,” Pearlman said, “will necessitate an expensive, integrated computer system. It will have to be programmed with internal “firewalls” to guarantee the confidentiality of the highly sensitive information kept by the accountability agency’s separate divisions, while ensuring that their public records are readily available under the state’s Freedom of Information Act. This could add perhaps a million or more dollars to the proposed agency’s cost.”

The Einstein in charge of this brainstorm for the governor, Gian-Carl Casa, previously served as director of Public Policy and Advocacy for the Connecticut Conference of Municipalities. This is not a group that fights for freedom of information. I wonder how much taxpayer money the CCM flushes down the drain.

I spoke with Casa several times over the past few weeks, asking him repeatedly to provide me with details supporting his version of the FOI maneuver and his own background. What did he deliver?

Zippo, Nada, Less Than Bubkes.

I even told Gov. Malloy what a stiff this Casa guy is and what I thought of this half-baked idea to gut FOI.

The only contact Casa – an undersecretary on the budget team — should have with FOI is at the end of subpoena.

Would a new umbrella agency run by a gubernatorial appointee stand up to any governor who has public information issues? That doesn’t pass the hideous laugh test.

Speaking of the hideous laugh test, why do we still have a state-funded Judicial Protection Association, aka the Judicial Review Council? Throwing that entity into the shredder would not hurt anyone except judges who would find it more difficult to pretend they are accountable. Who is going to miss an agency that operates in secret and does virtually nothing in accord with its stated mission?

Legislators who are marking time to become judges and can’t get a job elsewhere don’t have the guts to kill the Judicial Protection Association, but, that would be a decent savings for taxpayers with no loss of benefit.

What about the state Contracting Standards Board? Does it do anything? Maybe I’m missing something, but, for now, I’ll lump them in with the Judicial Protection Association.

As a matter of checks and balances, the ethics, elections enforcement and freedom of information agencies investigate each other, as well as the governor’s office and the Legislature. We need all these people in government to look over each other’s shoulders. Otherwise, why pretend were are a democracy?

Andy Thibault, author of Law &Justice In Everyday Life, blogs at The Cool Justice report: cooljustice.blogspot.com/. He served as a commissioner with Connecticut’s FOI Commission from 1995-96.

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