Publications

Since 9/11, the public’s ability to access information in the possession of the federal and state governments has taken a beating. Government officials have directed agencies to limit access to information that has long been available to the public, often through agency websites, ostensibly to prevent that information from getting into the hands of the “wrong people.” Indeed, Attorney General John Ashcroft issued a memorandum last October informing federal agencies that they could “be assured” that the Justice Department would defend their decisions to withhold records from the public based on exemptions in the federal Freedom of Information Act. His memorandum superceded a 1993 directive by then-Attorney General Janet Reno directing federal agencies to exercise any discretion to release information in favor of openness, absent a foreseeable harm that would occur from disclosure.

With these events in mind I take some solace from a recent decision of the Connecticut Supreme Court, which confirms that our state’s Freedom of Information Act is alive and well, at least for the moment. The case-The Hartford Courant Company et al. v. Freedom of Information Commission-arose out the Courant’s request to the Department of Public Safety for an electronic copy of its computer database of “rap sheets” for every adult convicted of a crime, sans non-public information like social security numbers. The department was happy to oblige, but told the Courant that it would have to pay a fee, pursuant to General Statues § 29-11(c), of $25 for each record contained in the database. The department multiplied that fee by the number of individual records (815,000) and asked the Courant to fork over $20 million for the database. Even for one of the state’s most prominent newspapers that sum was a bit hefty. The Courant challenged the decision, first before the Freedom of Information Commission and then in court.

The legal issue was basically one of statutory construction. The Courant argued that § 1-212(b) of the Freedom of Information Act governed its request. That section would have restricted the department to charging a fee that did not exceed the actual cost incurred in providing a copy of the database. The department, however, pointed to language in § 1-212(a) providing that the fee structure under § 1-212(b) governed “except as otherwise provided by state statute.” The department argued (and both the Freedom of Information Commission and the trial court agreed) that § 29-11(c) fell within the proviso to § 1-212(a). Therefore, if the Courant wanted the entire criminal record database, it would have to pay $20 million.

Fortunately, the Supreme Court recognized the absurdity of the situation. Writing for a unanimous court, Justice Christine Vertefeuille examined the language of the relevant statutes and their legislative history and concluded that the applicable fee provision was § 1-212(b). In my view, however, the real rationale for the court’s decision was much simpler. As the Court recognized, had it held otherwise the “fee for the plaintiff’s request would be $20,375,000, a result that would have the practical effect of denying the plaintiff access to records that, by statute, must be made available to the public.”

More cynical writers than I might speculate that the court was just trying to keep the Courant’s subscription fee from rising. Whatever the court’s true motivation, however, I hope that its decision portends a willingness to interpret freedom of information laws expansively and to stand firm against growing efforts to restrict public access to government information. If not, we will lose one of the most important mechanisms for ensuring that elected and appointed officials serve the public’s interest, not their own.