§ 1-206 — (Formerly Sec. 1-21i). Denial of access to public records or meetings. Appeals. Notice. Orders. Civil penalty. Violation that constitutes obstruction or misconduct. Petition for relief from vexatious requester. Service of process upon commission. Frivolous appeals. Appeal re state hazardous waste program records.

Connecticut § 1-206

• Jurisdiction: Connecticut
• Title 1: Provisions of General Application
• Ch. 14: Freedom of Information Act

Text

(a) Any denial of the right to inspect or copy records provided for under section 1-210 shall be made to the person requesting such right by the public agency official who has custody or control of the public record, in writing, within four business days of such request, except when the request is determined to be subject to subsections (b) and (c) of section 1-214, in which case such denial shall be made, in writing, within ten business days of such request. Failure to comply with a request to so inspect or copy such public record within the applicable number of business days shall be deemed to be a denial. (b) (1) Any person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed not later than thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed not later than thirty days after the person filing the appeal receives actual or constructive notice that such meeting was held. For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken. Upon receipt of such notice, the commission shall serve upon all parties, by certified or registered mail or by electronic transmission, a copy of such notice together with any other notice or order of such commission. In the case of the denial of a request to inspect or copy records contained in a public employee's personnel or medical file or similar file under subsection (c) of section 1-214 , the commission shall include with its notice or order an order requiring the public agency to notify any employee whose records are the subject of an appeal, and the employee's collective bargaining representative, if any, of the commission's proceedings and, if any such employee or collective bargaining representative has filed an objection under said subsection (c), the agency shall provide the required notice to such employee and collective bargaining representative by certified mail, return receipt requested, by electronic transmission or by hand delivery with a signed receipt. A public employee whose personnel or medical file or similar file is the subject of an appeal under this subsection may intervene as a party in the proceedings on the matter before the commission. Said commission shall, after due notice to the parties, hear and decide the appeal not later than one year after the filing of the notice of appeal. The commission shall adopt regulations in accordance with chapter 54, establishing criteria for those appeals which shall be privileged in their assignment for hearing. Any such appeal shall be heard not later than thirty days after receipt of a notice of appeal and decided not later than sixty days after the hearing. If a notice of appeal concerns an announced agency decision to meet in executive session or an ongoing agency practice of meeting in executive sessions, for a stated purpose, the commission or a member or members of the commission designated by its chairperson shall serve notice upon the parties in accordance with this section and hold a preliminary hearing on the appeal not later than seventy-two hours after receipt of the notice, provided such notice shall be given to the parties at least forty-eight hours prior to such hearing. During such preliminary hearing, the commission shall take evidence and receive testimony from the parties. If after the preliminary hearing the commission finds probable cause to believe that the agency decision or practice is in violation of sections 1-200 and 1-225 , the agency shall not meet in executive session for such purpose until the commission decides the appeal. If probable cause is found by the commission, it shall conduct a final hearing on the appeal and render its decision not later than five days after the completion of the preliminary hearing. Such decision shall specify the commission's findings of fact and conclusions of law. (2) In any appeal to the Freedom of Information Commission under subdivision (1) of this subsection or subsection (c) of this section, the commission may confirm the action of the agency or order the agency to provide relief that the commission, in its discretion, believes appropriate to rectify the denial of any right conferred by the Freedom of Information Act. The commission may declare null and void any action taken at any meeting which a person was denied the right to attend and may require the production or copying of any public record. In addition, upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184 , inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than five thousand dollars. If the commission finds that a person has taken an appeal under this subsection frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken, after such person has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184 , inclusive, the commission may, in its discretion, impose against that person a civil penalty of not less than twenty dollars nor more than one thousand dollars. The commission shall notify a person of a penalty levied against such person pursuant to this subsection by written notice sent by certified or registered mail or electronic transmission. If a person fails to pay the penalty not later than thirty days after receiving such notice, the Superior Court shall, on application of the commission, issue an order requiring the person to pay the penalty imposed. If the executive director of the commission has reason to believe an appeal under subdivision (1) of this subsection or subsection (c) of this section (A) presents a claim beyond the commission's jurisdiction; (B) would perpetrate an injustice; or (C) would constitute an abuse of the commission's administrative process, the executive director shall not schedule the appeal for hearing without first seeking and obtaining leave of the commission. The commission shall provide due notice to the parties and review affidavits and written argument that the parties may submit and grant or deny such leave summarily at its next regular meeting. The commission shall grant such leave unless it finds that the appeal: (i) Does not present a claim within the commission's jurisdiction; (ii) would perpetrate an injustice; or (iii) would constitute an abuse of the commission's administrative process. Any party aggrieved by the commission's denial of such leave may apply to the superior court for the judicial district in which the public agency is located, not later than fifteen days of the commission meeting at which such leave was denied, for an order requiring the commission to hear such appeal. (3) In making the findings and determination under subdivision (2) of this subsection the commission shall consider the nature of any injustice or abuse of administrative process, including, but not limited to: (A) The nature, content, language or subject matter of the request or the appeal, including, among other factors, whether the request or appeal is repetitious or cumulative; (B) the nature, content, language or subject matter of prior or contemporaneous requests or appeals by the person making the request or taking the appeal; (C) the nature, content, language or subject matter of other verbal and written communications to any agency or any official of any agency from the person making the request or taking the appeal; (D) any history of nonappearance at commission proceedings or disruption of the commission's administrative process, including, but not limited to, delaying commission proceedings; and (E) the refusal to participate in settlement conferences conducted by a commission ombudsman in accordance with the commission's regulations. (4) Notwithstanding any provision of this subsection, in the case of an appeal to the commission of a denial by a public agency, the commission may, upon motion of such agency, confirm the action of the agency and dismiss the appeal without a hearing if it finds, after examining the notice of appeal and construing all allegations most favorably to the appellant, that (A) the agency has not violated the Freedom of Information Act, or (B) the agency has committed a technical violation of the Freedom of Information Act that constitutes a harmless error that does not infringe the appellant's rights under said act. (5) Notwithstanding any provision of this subsection, in the case of an appeal to the commission of a denial by a public agency where, after a hearing, the commission finds the public agency is engaging in a practice or pattern of conduct that constitutes an obstruction of any right conferred by the Freedom of Information Act or reckless, wilful or wanton misconduct with regard to the delay or denial of responses to requests for public records under said act, the commission may impose a civil penalty of not less than twenty dollars nor more than five thousand dollars against a custodian or other official of such public agency, and order such other relief that the commission, in its discretion, determines is appropriate to rectify such obstruction or misconduct and to deter such public agency from violating the Freedom of Information Act. In case of any failure or refusal to comply with any order issued under this subdivision, the commission may apply to the superior court for the judicial district in which the public agency is located for an order requiring such public agency to comply with such order. (6) Notwithstanding any provision of this subsection, a public agency may petition the commission for relief from a requester that the public agency alleges is a vexatious requester. Such petition shall be sworn under penalty of false statement, as provided in section 53a-157b , and shall detail the conduct which the agency alleges demonstrates a vexatious history of requests, including, but not limited to: (A) The number of requests filed and the total number of pending requests; (B) the scope of the requests; (C) the nature, content, language or subject matter of the requests; (D) the nature, content, language or subject matter of other oral and written communications to the agency from the requester; and (E) a pattern of conduct that amounts to an abuse of the right to access information under the Freedom of Information Act or an interference with the operation of the agency. Upon receipt of such petition, the executive director of the commission shall review the petition and determine whether it warrants a hearing. If the executive director determines that a hearing is not warranted, the executive director shall recommend that the commission deny the petition without a hearing. The commission shall vote at its next regular meeting after such recommendation to accept or reject such recommendation and, after such meeting, shall issue a written explanation of the reasons for such acceptance or rejection. If the executive director determines that a hearing is warranted, the commission shall serve upon all parties, by certified or registered mail or electronic transmission, a copy of such petition together with any other notice or order of the commission. The commission shall, after due notice to the parties, hear and either grant or deny the petition not later than one year after its filing. Upon a grant of such petition, the commission may provide appropriate relief commensurate with the vexatious conduct, including, but not limited to, an order that the agency need not comply with future requests from the vexatious requester for a specified period of time, but not to exceed one year. Any party aggrieved by the commission's granting of such petition may apply to the superior court for the judicial district in which the public agency is located, not later than fifteen days after the commission meeting at which such petition was granted, for an order reversing the commission's decision. (c) Any person who does not receive proper notice of any meeting of a public agency in accordance with the provisions of the Freedom of Information Act may appeal under the provisions of subsection (b) of this section. A public agency of the state shall be presumed to have given timely and proper notice of any meeting as provided for in said Freedom of Information Act if notice is given in the Connecticut Law Journal or a Legislative Bulletin. A public agency of a political subdivision shall be presumed to have given proper notice of any meeting, if a notice is timely sent under the provisions of said Freedom of Information Act by (1) first-class mail to the address, or (2) electronic transmission to the information processing system, as defined in section 1-267 , indicated in the request of the person requesting the same. If such commission determines that notice was improper, it may, in its sound discretion, declare any or all actions taken at such meeting null and void. (d) Any party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183 . Notwithstanding the provisions of section 4-183 , in any such appeal of a decision of the commission, the court may conduct an in camera review of the original or a certified copy of the records which are at issue in the appeal but were not included in the record of the commission's proceedings, admit the records into evidence and order the records to be sealed or inspected on such terms as the court deems fair and appropriate, during the appeal. The commission shall have standing to defend, prosecute or otherwise participate in any appeal of any of its decisions and to take an appeal from any judicial decision overturning or modifying a decision of the commission. If aggrievement is a jurisdictional prerequisite to the commission taking any such appeal, the commission shall be deemed to be aggrieved. Notwithstanding the provisions of section 3-125 , legal counsel employed or retained by said commission shall represent said commission in all such appeals and in any other litigation affecting said commission. Notwithstanding the provisions of subsection (c) of section 4-183 and section 52-64 , all process shall be served upon said commission at its office. Any appeal taken pursuant to this section shall be privileged in respect to its assignment for trial over all other actions except writs of habeas corpus and actions brought by or on behalf of the state, including informations on the relation of private individuals. Nothing in this section shall deprive any party of any rights he may have had at common law prior to January 1, 1958. If the court finds that any appeal taken pursuant to this section or section 4-183 is frivolous or taken solely for the purpose of delay, it shall order the party responsible therefor to pay to the party injured by such frivolous or dilatory appeal costs or attorney's fees of not more than one thousand dollars. Such order shall be in addition to any other remedy or disciplinary action required or permitted by statute or by rules of court. (e) Within sixty days after the filing of a notice of appeal alleging violation of any right conferred by the Freedom of Information Act concerning records of the Department of Energy and Environmental Protection relating to the state's hazardous waste program under sections 22a-448 to 22a-454 , inclusive, the Freedom of Information Commission shall, after notice to the parties, hear and decide the appeal. Failure by the commission to hear and decide the appeal within such sixty-day period shall constitute a final decision denying such appeal for purposes of this section and section 4-183 . On appeal, the court may, in addition to any other powers conferred by law, order the disclosure of any such records withheld in violation of the Freedom of Information Act and may assess against the state reasonable attorney's fees and other litigation costs reasonably incurred in an appeal in which the complainant has prevailed against the Department of Energy and Environmental Protection. See Sec. 1-2a re construction of references to “United States mail”, “postmark” or “registered or certified mail”.

Legislative History

(P.A. 75-342, S. 14; P.A. 76-435, S. 25, 82; P.A. 77-403; 77-603, S. 2, 125; 77-609, S. 6, 8; P.A. 78-331, S. 57, 58; P.A. 81-431, S. 2, 3; P.A. 83-129, S. 1, 2; 83-587, S. 69, 96; June Sp. Sess. P.A. 83-31, S. 1, 2; P.A. 84-112, S. 2, 3; 84-136; 84-311, S. 1, 3; P.A. 86-408, S. 1, 4; P.A. 87-285, S. 2; 87-526, S. 4; P.A. 88-230, S. 1, 12; 88-317, S. 39, 107; 88-353, S. 2, 4; P.A. 90-98, S. 1, 2; 90-307, S. 1, 5; P.A. 92-207, S. 2; P.A. 93-142, S. 4, 7, 8; 93-191, S. 1, 4; P.A. 95-220, S. 4–6; P.A. 97-47, S. 10–12; P.A. 00-136, S. 6; P.A. 07-202, S. 11; P.A. 11-80, S. 1; P.A. 17-86, S. 1; P.A. 18-95, S. 1; P.A. 19-64, S. 14; June Sp. Sess. P.A. 21-2, S. 148; P.A. 23-200, S. 1; P.A. 24-108, S. 32.) History: P.A. 76-435 made technical changes; P.A. 77-403 changed “person” to “party”; P.A. 77-603 required that court appeals be made in accordance with Sec. 4-183; P.A. 77-609 changed provisions for appeals to freedom of information commission and provided that legal counsel represent the commission in court appeals; P.A. 78-331 made technical changes, reiterating amendments of P.A. 77-603; P.A. 81-431 added provisions in Subsec. (b) clarifying time of filing of notice of appeal and authorizing imposition of civil penalties for unreasonable denials, added a provision in Subsec. (d) re service of process upon the commission and deleted reference to commission's authority to impose fines for wilful and unreasonable denials; P.A. 83-129 amended Subsec. (b) to allow the commission to penalize those who bring frivolous appeals and amended Subsec. (d) by allowing the court to order those engaged in dilatory or frivolous appeals to pay the injured party's costs or attorney's fees; P.A. 83-587 made technical change in Subsec. (c); June Sp. Sess. P.A. 83-31 established an expedited hearing procedure for appeals involving executive sessions, effective July 1, 1984; P.A. 84-112 increased civil penalty for denial of right of access to records from $500 to $1,000; P.A. 84-136 provided for extended appeal period in the case of an unnoticed or secret meeting; P.A. 84-311 added provision re commission standing in appeals in Subsec. (d); P.A. 86-408 changed time limit for hearing and decision on appeal to one year after filing of notice and required that commission adopt regulations establishing criteria for privileged assignment for hearing for certain appeals which must be decided within 90 days after filing; P.A. 87-285 amended Subsec. (b) to require notice to the employee of any appeal to the commission regarding denial of access to his personnel or medical files, and to allow the employee to intervene as a party in the proceedings; P.A. 87-526 amended Subsec. (d) to allow court to conduct in camera review of records which are at issue in appeal but not included in record of commission's proceedings; P.A. 88-230 replaced “judicial district of Hartford-New Britain” with “judicial district of Hartford”, effective September 1, 1991; P.A. 88-317 amended references to Ch. 54 and Secs. 4-177 to 4-184 in Subsec. (b) to include new sections added to Ch. 54 and substituted “subsection (c) of section 4-183” for “subsection (b) of section 4-183” in Subsec. (d), effective July 1, 1989, and applicable to all agency proceedings commencing on or after that date; P.A. 88-353 added requirement in Subsec. (b) re notice to collective bargaining representative; P.A. 90-98 changed the effective date of P.A. 88-230 from September 1, 1991, to September 1, 1993; P.A. 90-307, S. 1, re appeals re records of environmental protection department relating to state hazardous waste program, was added editorially by the Revisors as Subsec. (e) in 1991; P.A. 92-207 amended Subsec. (a) to allow 10 days for the denial of the right to inspect and copy records and to require that denial be made in writing pursuant to Subsecs. (b) and (c) of Sec. 1-20a; P.A. 93-142 changed the effective date of P.A. 88-230 from September 1, 1993, to September 1, 1996, effective June 14, 1993; P.A. 93-191 amended Subsec. (b) by adding Subdiv. designations, adding Subdiv. (2) provision regarding appeals which present a claim beyond the commission's jurisdiction, would perpetrate an injustice or would constitute an abuse of the commission's administrative process, adding Subdiv. (3) regarding considerations in determining injustice or abuse of administrative process, and adding Subdiv. (4) regarding dismissal without hearing, effective July 1, 1993; P.A. 95-220 changed the effective date of P.A. 88-230 from September 1, 1996, to September 1, 1998, effective July 1, 1995; P.A. 97-47 amended Subsecs. (b), (c) and (e) by substituting “the Freedom of Information Act” for list of sections; Sec. 1-21i transferred to Sec. 1-206 in 1999; P.A. 00-136 amended Subdiv. (b)(4) to insert Subpara. (A) designator and to add new language as Subpara. (B) re technical violations that constitute harmless error; P.A. 07-202 amended Subsec. (b)(1) to require commission to take evidence and receive testimony during the preliminary hearing, to require the decision to specify commission's findings of fact and conclusions of law and to make technical changes, effective July 10, 2007; pursuant to P.A. 11-80, “Department of Environmental Protection” was changed editorially by the Revisors to “Department of Energy and Environmental Protection” in Subsec. (e), effective July 1, 2011; P.A. 17-86 amended Subsec. (b)(1) to replace “notice in fact” with “actual or constructive notice” re time of filing appeals re unnoticed or secret meetings; P.A. 18-95 amended Subsec. (b)(3) to add reference to repetitious or cumulative requests or appeals in Subpara. (A) and to add Subparas. (D) and (E) re history of nonappearance or disruption of process and refusal to participate in settlement conferences, respectively, and added Subsec. (b)(5) re petitions for relief from alleged vexatious requesters; P.A. 19-64 amended Subsec. (b)(2) by replacing “superior court for the judicial district of Hartford” with “Superior Court” and by replacing “judicial district of Hartford” with “judicial district of New Britain”; June Sp. Sess. P.A. 21-2 amended Subsec. (b) by adding references to electronic transmission re service of notices and Subsec. (c) by designating existing provision re notice timely sent by first-class mail as Subdiv. (1) and adding Subdiv. (2) re notice timely sent by electronic transmission, effective July 1, 2021; P.A. 23-200 amended Subsec. (b) by making technical changes in Subdivs. (1), (2) and (4), increasing maximum civil penalty from $1,000 to $5,000 in Subdiv. (2), adding new Subdiv. (5) re civil penalty for obstruction or misconduct and redesignating existing Subdiv. (5) as Subdiv. (6) and amending same by making technical changes; P.A. 24-108 amended Subsec. (b)(2), (5) and (6) by replacing “judicial district of New Britain” with “judicial district in which the public agency is located”. Annotations to former section 1-21i: Cited. 181 C. 324; 182 C. 142; 184 C. 102; 190 C. 235; 192 C. 310; 198 C. 498; 204 C. 609; 205 C. 767; 206 C. 449; 207 C. 698; 208 C. 442; 209 C. 204; 210 C. 590; Id., 646; 212 C. 100; 213 C. 126; Id., 216; 214 C. 312; 216 C. 253; 217 C. 153; Id., 193; 218 C. 256; Id., 757; 220 C. 225; 221 C. 217; Id., 300; Id., 393; Id., 482; Id., 549; 222 C. 621; 228 C. 158; Id., 271; 240 C. 835. Cited. 2 CA 600; 4 CA 216; Id., 468. Board of pardons not an aggrieved party. 14 CA 380; judgment reversed, see 210 C. 646. Cited. 16 CA 49; 19 CA 352; Id., 539; 20 CA 671; 22 CA 316; 29 CA 821; 35 CA 111; 37 CA 589; 42 CA 402; Id., 700; judgment reversed, see 240 C. 835; 43 CA 133. Cited. 41 CS 31; Id., 267; 42 CS 84; Id., 129; Id., 291. Subsec. (a): Cited. 204 C. 609. Subsec. (b): Cited. 182 C. 138. Time requirements are mandatory. 198 C. 498. Time limits mandatory. 199 C. 451. Cited. 201 C. 421; Id., 448; 204 C. 609; 205 C. 767. Where successive requests made for records are denied, appeals may be made within 30 days of any denial. 208 C. 442. Cited. 209 C. 204. Affords a right to appeal to the FOIC any denial, whether written or statutory, of a request for disclosure of public records. 218 C. 256. Cited. 221 C. 217; 233 C. 28; 234 C. 704; 240 C. 1. Cited. 16 CA 49; 35 CA 111. Failure of commission to hold a hearing and issue a decision on complaint within time periods prescribed by Subsec. did not void its jurisdiction, those time limits being directory, not mandatory. 36 CS 117. Cited. 39 CS 56. A finding that commission violated the law is equivalent to a finding that commission individually and collectively violated the law and therefore were the individuals “directly responsible for such denial”. 40 CS 233. Subsec. (c): An appeal to Superior Court under statute is the route to test whether Freedom of Information Commission acted erroneously in failing to order a public hearing. 2 CA 600. Subsec. (d): Cited. 174 C. 308; 177 C. 584; 201 C. 421; 204 C. 609; 205 C. 767. Judgment in 14 CA 380 reversed on issue of aggrievement. Id., 646. Cited. 213 C. 126; Id., 216; 217 C. 153; 218 C. 335. Party status not necessary to standing for appeal of FOIC decision, only aggrievement by the decision must be shown. 221 C. 217. Cited. 222 C. 621; 227 C. 848; 234 C. 624; 240 C. 1; Id., 824; 242 C. 79. Plaintiff as intervenor, not party, without standing to appeal pursuant to section. 13 CA 315. Cited. 14 CA 380; judgment reversed, see 210 C. 646; 19 CA 489; 36 CA 155; 41 CA 641; judgment reversed, see 240 C. 824; 42 CA 39; judgment reversed, see 241 C. 310. Cited. 35 CS 186; 39 CS 176; Id., 257; 41 CS 267; 42 CS 84; Id., 129; Id., 291; 43 CS 246; 44 CS 230. Annotations to present section: Subsec. (a): Agency's obligation to reduce to writing its denial of oral requests to inspect or copy records was never triggered because requests did not comply with Sec. 1-210(a). 130 CA 448. For purposes of determining whether a request sent by mail has been deemed denied pursuant to subsection, the operative date is the date that the request was received by the public agency. 222 CA 17. Subsec. (b): Legislature intended that the civil penalty provided by Subdiv. (2) would be the exclusive remedy for violation of a right conferred by Freedom of Information Act. 267 C. 669. Subsec. does not authorize commission to impose an obligation that the Freedom of Information Act itself does not demand and that bears no direct remedial effect on the violation established in the complaint; the phrase “rectify the denial” in Subdiv. (2) appears to mean corrective measures to make right a past wrong; trial court improperly concluded that commission had authority to order plaintiff to make and to maintain audio recordings of its executive or closed sessions for the next 3 years since the order did not rectify the denial of any right conferred by the Freedom of Information Act. 302 C. 1. Subdiv. (2): Fines were valid when ordered after plaintiff refused to disclose records as ordered. 54 CA 373. Commission must ensure that employee whose records are the subject of an appeal has received notice of proceedings where the employer has failed to give required notice; order of disclosure may not be issued until employee whose records are the subject of an appeal has been given proper notice and opportunity for a hearing to assert the personal privacy exemption. 60 CA 584. Subdiv. (2): Plaintiff lacked standing to appeal from commission's failure to impose a civil penalty against agency commissioner; plaintiff was not aggrieved by commission's nonimposition of civil penalty because Freedom of Information Act does not authorize citizen plaintiffs to seek a civil penalty as a remedy and thus she had no legal interest at stake. 161 CA 654. Subsec. (d): Department of Mental Health and Addiction Services is an aggrieved party under Subsec. since it is adversely affected by commission's determination that medical records of patients in its facilities can be subject to disclosure which may adversely affect patients' willingness to provide information re their medical history and status, and employees of department may face criminal or civil liability if they do not disclose the records or civil liability if they improperly disclose the records. 318 C. 769.