If you have any questions regarding the Freedom of Information Act (FOIA), contact one of our attorneys at (203) 221-3100.

What is the FOIA?

The Freedom of Information Act (FOIA) primarily mandates two key provisions: first, that meetings conducted by public agencies must be held in public view; and second, that records maintained by public agencies are accessible for inspection and disclosure by the general public. Additionally, the FOIA outlines several exemptions to its requirements regarding open meetings and public records.

What are “meetings” under the FOIA?

A meeting under the FOIA is: 1) any hearing or official proceeding involving a public agency; 2) any assembly or gathering of a quorum of members of a public agency; and 3) any communication among a quorum of members of a public agency, whether in person or through electronic means, aimed at discussing or taking action on matters within the agency’s oversight, control, jurisdiction, or advisory authority. While some meetings are straightforward (such as regular or special board meetings), caution must be exercised to avoid unintentionally triggering a “meeting” under the FOIA.

Inadvertent Meetings

Connecticut’s Freedom of Information Commission (FOIC) has determined that a series of telephone calls, “telephone polling,” emails, or “email polling” among a quorum of board members regarding board matters can constitute a “meeting.” Therefore, if a quorum of board members exchange emails discussing board business, they are potentially violating the FOIA’s requirements for public posting and open meetings. While there are exceptions to this regulation, it is crucial to exercise caution when sending emails to the entire board membership or a quorum to discuss board affairs. If you receive such an email, it is advised not to respond.

What are “public records” under the FOIA?

The FOIA broadly defines a public record as “any recorded data or information concerning the conduct of public business that is prepared, owned, used, received, or retained by a public agency, regardless of format (such as handwritten, typed, tape-recorded, videotaped, printed, photo stated, photographed, or recorded by any other method).” While the original definition dates back to 1975 and includes some outdated terminology, it has been interpreted to encompass contemporary forms of communication.

This includes any electronic communications, such as emails and text messages, sent or received by a public agency, including its board members, concerning the agency’s operations are subject to disclosure. While there are exceptions, such as communications from the board attorney protected by attorney-client privilege, board members should exercise caution knowing that any email or text message they create regarding board matters could become public knowledge, potentially appearing in local newspapers. Additionally, it’s important to note that using personal email accounts or phone numbers for public business does not exempt such communications from disclosure under the FOIA.

What happens if you violate the FOIA?

If the FOIC determines that a public agency violated the FOIA, it has the authority to take several actions:

  • Direct the agency to produce or copy any public records that were improperly withheld.
  • Impose fines ranging from $20 to $5,000 against the agency’s record custodian or official under certain conditions: if the agency acted without reasonable grounds, engaged in obstruction of FOIA rights through a pattern of conduct, or demonstrated reckless, willful, or wanton misconduct in delaying or denying responses to public records requests.
  • Invalidate agency actions deemed to be null and void.
  • Require the agency to implement remedies that the FOIC considers appropriate to address the denial of FOIA rights, such as training on FOIA compliance.

Generally, if mistakes are made in good faith, the FOIC typically focuses on corrective actions rather than punitive measures like fines. However, actions taken without reasonable grounds or involving reckless or willful misconduct may lead to fines. Unlike many situations where public officials, including board members, are shielded from personal liability, FOIA fines may need to be paid personally by responsible officials. In fact, legal provisions may prohibit indemnification by the agency for FOIA fines. Therefore, it is crucial for board members to act in good faith, learn from any mistakes, and avoid repeating them.

Maya Murphy P.C. has proudly been included in the 2024 Edition of Best Law Firms®, ranked among the top firms in the nation. In addition, Managing Partner Joseph C. Maya has been selected to The Best Lawyers in America® 2024 for his work in Employment Law and Education Law in Connecticut. Recognition in Best Lawyers® is awarded to firms and attorneys who demonstrate excellence in the industry and is widely regarded by both clients and legal professionals as a significant honor.

Our firm in Westport, Connecticut serves clients with legal assistance all over the state, including the towns of Ansonia, Beacon Falls, Bethany, Bethel, Branford, Bridgeport, Brookfield, Cheshire, Danbury, Darien, Derby, East Haven, Easton, Fairfield, Greenwich, Guilford, Hamden, Madison, Meriden, Middlebury, Milford, Monroe, Naugatuck, New Canaan, New Fairfield, New Haven, Newton, North Branford, North Haven, Norwalk, Orange, Oxford, Prospect, Redding, Ridgefield, Seymour, Shelton, Sherman, Southbury, Stamford, Stratford, Trumbull, Wallingford, Waterbury, West Haven, Weston, Westport, Wilton, and Woodbridge. In addition to assisting clients in Connecticut, our firm handles education law matters in New York as well.

If you have any questions or would like to speak to an attorney about a legal matter, please contact Joseph C. Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com to schedule a free initial consultation today.