Dunsby proposes bill to stop vexatious FOI complaints
State Rep. Adam Dunsby didn’t waste any time getting down to business after being sworn into office as a freshman legislator at the start of the year.
Dunsby, who is also first selectman of Easton, was elected last November to the 135th state House District, representing Easton, Redding and Weston.
Just days after being inaugurated, he met the filing deadline to introduce eight bills, most of them in conjunction with other legislators. But he was the sole signer of proposed House Bill No. 5354, An Act Concerning Freedom of Information Act Appeals.
The bill’s stated goal is “to reduce frivolous complaints under the Freedom of Information Act.”
It would require a filing fee of $125 in some circumstances, refundable upon withdrawal of the complaint or upon the complainant prevailing. The fee would apply only for two or more complaints filed by the same person in a calendar year. Indigent individuals would be exempt.
The bill would also make mediation, which is now voluntary, mandatory and require the complainants to “engage in good faith negotiations to resolve their complaint.”
Dunsby has been irked by some FOI complaints filed while he has been first selectman and previously as a member and chairman of the Easton Board of Education. The town has paid for an attorney, although it’s not a requirement, to defend its interests, thereby incurring legal fees, and to avoid imposition of fines against an individual working on behalf of the town, he said.
House Bill No. 5354 was referred to the Joint Committee on Government Administration and Elections on Jan. 10 and the committee held a public hearing on the bill on Feb. 27. Nine agencies or individuals, including Dunsby, testified at the hearing, six of them opposed and two, in addition to Dunsby, in favor.
Dunsby said the public has the right to access public documents and observe the meetings of public agencies, and that to maintain those rights, there must be a complaint process through which noncompliant public agencies can be coerced and sanctioned.
But he said the complaint process should be balanced to accomplish its goals without becoming a tool to intentionally burden or harass public officials.
“This is especially true since public agencies are often populated by volunteers who give up their time to serve the public,” he said. “Filing a complaint with the FOIC is easy, and as far as I can tell, the commission accepts most all complaints. It is very easy to turn a request for information into a complaint. For instance, one can make a request for information that is vague, and then charge non-compliance, even if the public agency acted in good faith to comply.”
Agree there’s a problem
Representatives from the Connecticut Conference of Municipalities and the Connecticut Council of Small Towns supported Dunsby’s bill. Dan Barrett of the ACLU, state Comptroller Kevin Lembo, Mike Savino, president of the Society of Professional Journalists, and Chris VandeHoef, executive director of the Connecticut Daily Newspapers Association, opposed it.
Colleen M. Murphy, executive director and legal counsel for the Connecticut Freedom of Information Commission, and Daniel Klau, president of the Connecticut Council on Freedom of Information, were among the agency representatives who testified against the fee portion of the bill and against limiting the public’s need to know.
However, they said Dunsby’s bill is not without merit and, indeed, the commission has little authority under existing law to deal with vexatious requests and complaints, something they would like to see changed as long as it doesn’t limit people from seeking information.
For example, one Connecticut man last year filed 139 complaints with the Freedom of Information Commission, he said. The next most frequent filer had 20 complaints, another person filed 15, and a handful filed 10.
The commission receives roughly 1,000 complaints a year, but only a few have filed more than five, 10 or 15 complaints. The goal is to find a way to address the small group who files voluminous complaints for requests for information, Klau said.
“We agree with Dunsby that there is a problem, although in our view, it’s a limited one with certain individuals abusing their right under the Freedom of Information law,” Klau said. “We believe there is a more narrowly tailored way to address the problem rather than a filing fee, which could affect many citizens who don’t abuse the Freedom of Information Act.”
Klau used the metaphor that requiring a filing fee would be a hammer when what is needed is a scalpel.
The mediation portion of the proposal garnered measured support. Murphy said she doesn’t have a problem in principle with making mediation mandatory rather than voluntary, as it is now.
“But in reality, there’s only a tiny number of people who don’t participate in non-mandatory mediation,” she said. “We resolve one-third of complaints through mediation. Most people welcome it.”
Requiring mediation could have the unintended consequence of telling a complainant the case will be dismissed if the complainant doesn’t participate, which might have a chilling effect, she said.
“We’ve looked at and considered legislation to give us some more authority to stop agitation for agitation’s sake, modeled after jurisdictions in other countries,” Murphy said.
She said they would put together an alternative proposal aimed at getting rid of complaints designed for the sake of agitation. The alternative language they draft might be modeled on something Australia or Canada uses, which the commission has studied, she said.
The commission would come up with criteria for what is considered vexing or harassing Then it could say, for example, that a particular person is prohibited from filing complaints toward a particular body until next year, she said.
Someone or some agency who feels they are being harassed by a vexatious individual would have an opportunity to have a hearing so the commission could determine what is going on. She emphasized, however, that “we don’t want to deter anybody who has a legitimate Freedom of Information complaint.”
“We firmly believe that Freedom of Information is part of their job,” Klau said of Easton and other small towns. “The small handful of complaints that have been directed at Easton doesn’t come even remotely close to being frivolous or vexatious.”
Many of the bills introduced by legislators each year go nowhere, others don’t make it out of committee and fewer still go on to become law. Dunsby’s proposal could be one of the ones that does, although in a revised format.
“We’ll come back with something and will share it with the Government Administration and Elections Committee,” Murphy said. Whether it goes forward “depends on whether it is palatable and whether there is time” during the current legislative season.
If not this year, Dunsby said he would reintroduce the bill next year. A fee won’t be part of any new bill, he said.