Every year the lights go out a little more on the public's right to know about its government, and they're growing dimmer again in 2013.
Legislation pending in the Connecticut General Assembly could further erode the state's Freedom of Information Law and weaken watchdog agencies that protect citizens' access to government information as well as integrity in government.
--barring access to all files and hearings pertaining to convicts' applications for pardons;
--restricting access to death certificates of deceased children younger than 18 for six months;
--charging citizens a fee to simply look at a state police report on a car accident or investigation, even if no copy of it is requested;
--prohibiting government agencies from releasing records of home addresses of Department of Motor Vehicles inspectors and prison nurses.
The death certificate proposals came after the Sandy Hook tragedy in December, amid some hostility toward the press – as exemplified by newly elected Rep. Mitch Bolinsky, a Newtown Republican who registered one of his few blips so far on the Hartford political radar by referring to reporters as "jackals."
But beyond that specific issue, this year's legislative initiatives continue a trend over the years at the Capitol to pass laws that exclude more and more documents from disclosure under the FOI law. It's like watching a city office building at night, as the lights wink out one by one.
State officials and lawmakers always give a reason for shutting out the public: Parents of murdered children need time and space to grieve; convicts seeking pardons shouldn't hold back even the most personal details about their rehabilitation process; if the home addresses of police and prosecutors are kept from the public, why not DMV inspectors', too?
But advocates of open government say that when legislators are writing a law, and a question arises about the public's right to know, "there seems to be a tendency to say, "Why should that be available for public inspection, or public access?' – as opposed to, 'Why not?'" said Colleen M. Murphy, executive director and general counsel for the state Freedom of Information Commission.
Murphy said that attitude goes against the underlying principle of the FOI law: Government documents belong to the citizens who elect representatives and whose taxes pay the government's expenses.
In testimony to the legislature in March, she said the preamble to the bill that became the FOI law in 1975 said: "The legislature finds…that secrecy in government is inherently inconsistent with a true democracy … that the people, in delegating authority, do not give their public servants the right to decide what is good for them to know."
The legislators of 2013 should keep that in mind, said Murphy.
The leaders of the General Assembly have their own freedom of information issues. The Office of Legislative Management for years has maintained a policy of deleting the emails after 21 days. This year lawmakers proposed a bill to exempt from the FOI law any meetings held by leaders from different political parties – including themselves – to negotiate legislation or other public action, even if there is a legal quorum present.
After public criticism, the bill "appears to be dead," Murphy said.
There's an issue beyond freedom of information, too, say Murphy and other open-government advocates: continuing reorganization moves proposed by Gov. Dannel P. Malloy that they say would curtail the independence of government-watchdog agencies.
One of the "efficiency" moves in the governor's budget bill this year would have thrown the staff lawyers and investigators of three key agencies – the FOI Commission, the State Elections Enforcement Commission, and the Office of State Ethics – into a single pool supervised by a Malloy appointee.
"That means the governor and his appointee would effectively have control over the investigations and actual enforcement of election laws," said Michael Brandi, executive director of the elections agency. "We believe that that destroys the independence of what we do. It simply eviscerates the watchdog function."
That proposal recently was undone by the legislature's appropriations committee – subject to a vote by the full House and Senate – but Murphy called it "disheartening" that the governor even brought it up.
"Government oversight and transparency keep government accountable to the people it serves," Murphy said. "Government oversight agencies must be given the tools in the form of appropriate resources and support or they will merely become ineffective artifices. "Moreover, they must remain independent as well as separate and distinct from one another if they are to maintain the public's confidence."
Malloy's director of communications, Andrew Doba, said the governor isn't trying to rein in the watchdogs. He said the rationale for putting the lawyers together in a single pool is that "folks across many agencies… are being asked to do a bit" under the state's dire budget circumstances. If lawyers for one of the agencies have "downtime," then they can help another agency, he said, "It seems like a common-sense way of doing more with taxpayer dollars."
The watchdogs say the budget savings would have been only $180,000 out of a $21.5-billion annual state budget, and, besides, they don't have any downtime. Brandi said his short-staffed agency is only now nearing completion of its audit of Malloy's 2010 campaign finances.
Doba also said "I would disagree that there's been an effort by the administration to reduce transparency. On economic development deals, there's a certain amount of confidentiality that's needed to move a deal forward. But by and large, we've made every effort to make this administration transparent in all of its endeavors."
The Dec. 14 Newtown school massacre, in which 20 first-graders and six women were shot to death, sparked the highest-profile debate on freedom of information of the 2013 legislative session in Hartford.
"I was shocked, dismayed and deeply disturbed when, on Dec. 17, I got a call from the town clerk about the prospect of having a reporter standing beside her during one of the greatest tragedies in the history of the United States in Newtown looking for death certificates of children,'' Bolinsky, the freshman representative, said in February. He objected to "the outrage, the pain of observing the jackals descend upon my town clerk's office at a time of great, great community loss.''
He proposed a one-paragraph bill to restrict release of a copy of a certificate "when the disclosure of the death certificate is likely to cause undue hardship for the family of the child.''
Now, after legislative committee deliberations, two death-certificate bills are still alive but not yet voted on in either the House or Senate. Bolinsky's would restrict public access until six months after the death of a minor. The other would create a "short form" death certificate for release to the public.
Jim Smith, president of the Connecticut Council on Freedom of Information, said in February that death certificates are factual documents lacking the details of an autopsy report. "There isn't anything in a death certificate that is going to hurt the deceased,'' Smith said. "It's been public for centuries." It's not going to invade anyone's privacy.''
Open-government supporters say that the first reaction to tragedy shouldn't be legislation. But, Murphy said, if one of the two pending proposals is going to pass this year, she would prefer the one delaying their release for six months instead of the "short form."
Bolinsky, in an interview, said that by "jackals" he meant "a particular tabloid [whose name] I'm not going to say." He called the comment "unfortunate" in retrospect. "I shouldn't have said that."
$16 Per Peek
The state police asked lawmakers this year to approve a bill that would let them charge $16 to look at a report on an accident or investigation – even if no copy is requested. The request, by Commissioner Reuben F. Bradford of the Department of Emergency Services and Public Protection, came after his agency lost a court appeal an FOI Commission ruling that the public must be allowed to look at records at no charge.
Bradford said in written testimony to the legislature that searching files for requested reports "takes substantial staff time" and requires "making redactions" – deletions, that is – "for reasons ranging from the identify of juveniles or sexual assault victims to protecting the privacy of the public."
State police want to charge the fee even if a citizen just reads a report or takes a picture of it with a mobile phone.
But FOI officials say that producing documents for citizens should be considered part of a government agency's normal function – not an extra. Fees for copies are okay, the FOI commission said in written testimony, but it added: "Allowing for free access to inspect public records, as opposed to free copies, is an important measure to ensure that individuals who may not be able to afford copies still can have access to public records."
The bill has not been voted on in the House or Senate. After going through two committees, the bill now says people would be charged 25 cents a page to merely look at a report. A copy would cost $16, and there would be a $16 search fee if a citizen's request for a report resulted in no document being found.
A bill aimed at "decreasing recidivism" by offenders would bar the general public from access to records and hearings at the Board of Pardons and Paroles, concerning applications for pardons.
"Confidentiality is critical to the pardons process," Alexis Smith, deputy director of the New Haven Legal Assistance Association said in legislative testimony. "The board encourages applicants to be forthcoming in giving details about their efforts to rehabilitate. Such details may include information about substance abuse recovery, mental health treatment and other sensitive information."
But the FOI commission argued that "this sweeping confidentiality provision, unlimited in both scope and time, would permit the [board of pardons] to keep secret all information upon which its decisions to pardon applicants are based. This would be a catastrophic blow to government transparency. … A member of the public has the right to know for him or herself, through access to government records, that the decision-making process with respect to the granting of all pardons is fair, unbiased and free from influence."
News Not All Bad
There's some good news on the freedom-of-information front this year.
Brandi, the elections enforcement agency director, said he's encouraged by the state House of Representative's vote to approve a "pilot program" under which campaign finance reports from 20 of Connecticut's 169 cities and towns would be available on his agency's website starting in 2015. The website already contains searchable data on state campaigns, political action committees and political parties.
Meanwhile, Murphy said she is encouraged by state Comptroller Kevin Lembo's efforts to make information accessible to the public.
Lembo's office maintains a myriad of state financial information such as payroll, retirement benefits, and payment of state bills for contracts and other expenses. Lembo has established his own website, http://www.osc.ct.gov/openCT, with searchable information on state finances.
But he's also proposed "An Act Concerning Transparency In Economic Assistance Programs," which would create a searchable online database for the public to view the often-controversial economic development benefits that the state grants to businesses – such as grants, loans and tax breaks.
As Lembo originally proposed the bill, the online database would have included the name and location of each business receiving state economic aid; its terms, purpose, and statutory authority; and an analysis of the direct and indirect effect of the aid on state taxes.
The bill has been opposed by the business community – including the Connecticut Business and Industry Association – and by Malloy administration officials including budget chief Ben Barnes and economic development commissioner Catherine Smith, who have questioned its cost.
Lembo said after negotiations with the CBIA and Malloy's people, the database would not include the economic assistance information by company names, but only by sectors in the business community. The bill is now in the legislature's commerce committee. Lembo said "I'll kill my own bill" rather than let it get too watered down in further negotiations to pass it.
The database would cost the state about $50,000, he said, adding: "When we think about the millions and in some cases billions of dollars that are involved in these transactions, $50,000 seems like a small price to pay so that lawmakers have good information on which to make decisions" and the public can learn where its taxes are going.
Jon Lender is a reporter on The Courant's investigative desk, with a focus on government and politics. Contact him at firstname.lastname@example.org, 860-241-6524, or c/o The Hartford Courant, 285 Broad St., Hartford, CT 06115 and find him on Twitter at @jonlender.