Substitute House Bill No. 5684

Public Act No. 00-136

An Act Concerning The Freedom Of Information Act.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Subdivision (1) of section 1-200 of the general statutes is repealed and the following is substituted in lieu thereof:

(1) "Public agency" or "agency" means any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official, or body or committee thereof but only in respect to its or their administrative functions. "Public agency" includes an "implementing agency" as defined in section 32-222.

Sec. 2. Subsection (b) of section 1-210 of the general statutes, as amended by section 1 of public act 99-156, is repealed and the following is substituted in lieu thereof:

(b) Nothing in the Freedom of Information Act shall be construed to require disclosure of:

(1) Preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure;

(2) Personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy;

(3) Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of (A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known, (B) signed statements of witnesses, (C) information to be used in a prospective law enforcement action if prejudicial to such action, (D) investigatory techniques not otherwise known to the general public, (E) arrest records of a juvenile, which shall also include any investigatory files, concerning the arrest of such juvenile, compiled for law enforcement purposes, (F) the name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof, or (G) uncorroborated allegations subject to destruction pursuant to section 1-216;

(4) Records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled;

(5) (A) Trade secrets, which for purposes of the Freedom of Information Act, are defined as [unpatented, secret, commercially valuable plans, appliances, formulas or processes, which are used for the making, preparing, compounding, treating or processing of articles or materials which are trade commodities obtained from a person and which are recognized by law as confidential, and commercial] information, including formulas, patterns, compilations, programs, devices, methods, techniques, processes, drawings, cost data, or customer lists that (i) derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) are the subject of efforts that are reasonable under the circumstances to maintain secrecy; and

(B) Commercial or financial information given in confidence, not required by statute;

(6) Test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examinations;

(7) The contents of real estate appraisals, engineering or feasibility estimates and evaluations made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts, until such time as all of the property has been acquired or all proceedings or transactions have been terminated or abandoned, provided the law of eminent domain shall not be affected by this provision;

(8) Statements of personal worth or personal financial data required by a licensing agency and filed by an applicant with such licensing agency to establish his personal qualification for the license, certificate or permit applied for;

(9) Records, reports and statements of strategy or negotiations with respect to collective bargaining;

(10) Records, tax returns, reports and statements exempted by federal law or state statutes or communications privileged by the attorney-client relationship;

(11) Names or addresses of students enrolled in any public school or college without the consent of each student whose name or address is to be disclosed who is eighteen years of age or older and a parent or guardian of each such student who is younger than eighteen years of age, provided this subdivision shall not be construed as prohibiting the disclosure of the names or addresses of students enrolled in any public school in a regional school district to the board of selectmen or town board of finance, as the case may be, of the town wherein the student resides for the purpose of verifying tuition payments made to such school;

(12) Any information obtained by the use of illegal means;

(13) Records of an investigation or the name of an employee providing information under the provisions of section 4-61dd;

(14) Adoption records and information provided for in sections 45a-746, as amended, 45a-750 and 45a-751;

(15) Any page of a primary petition, nominating petition, referendum petition or petition for a town meeting submitted under any provision of the general statutes or of any special act, municipal charter or ordinance, until the required processing and certification of such page has been completed by the official or officials charged with such duty after which time disclosure of such page shall be required;

(16) Records of complaints, including information compiled in the investigation thereof, brought to a municipal health authority pursuant to chapter 368e or a district department of health pursuant to chapter 368f, until such time as the investigation is concluded or thirty days from the date of receipt of the complaint, whichever occurs first;

(17) Educational records which are not subject to disclosure under the Family Educational Rights and Privacy Act, 20 USC 1232g;

(18) Records, the disclosure of which the Commissioner of Correction has reasonable grounds to believe may result in a safety risk, including the risk of harm to any person or the risk of an escape from, or a disorder in, a correctional institution or facility under the supervision of the Department of Correction. Such records shall include, but are not limited to:

(A) Security manuals, including emergency plans contained or referred to in such security manuals;

(B) Engineering and architectural drawings of correctional institutions or facilities;

(C) Operational specifications of security systems utilized by the Department of Correction at any correctional institution or facility, except that a general description of any such security system and the cost and quality of such system, may be disclosed;

(D) Training manuals prepared for correctional institutions and facilities that describe, in any manner, security procedures, emergency plans or security equipment;

(E) Internal security audits of correctional institutions and facilities;

(F) Minutes or recordings of staff meetings of the Department of Correction, or portions of such minutes or recordings, that contain or reveal information relating to security or other records otherwise exempt from disclosure under this subdivision;

(G) Logs or other documents that contain information on the movement or assignment of inmates or staff at correctional institutions or facilities; and

(H) Records that contain information on contacts between inmates, as defined in section 18-84, and law enforcement officers.

Sec. 3. (NEW) (a) All data and other information received by the Department of Economic and Community Development, the Connecticut Development Authority or any implementing agency, as defined in section 32-222 of the general statutes, or any advisory board or committee of the department, authority or agency, from any person in connection with an application for, or the provision of, financial assistance, which consists of the following, shall be deemed, for purposes of a public records request pursuant to the Freedom of Information Act, as defined in section 1-200 of the general statutes, made to the Department of Economic and Community Development, the Connecticut Development Authority or any such implementing agency, advisory board or committee, to be information described in subdivision (5) of subsection (b) of section 1-210 of the general statutes, as amended by this act: (1) Actual trade secrets or information that a person intends to become a trade secret, (2) material that a person intends to patent, (3) patented material, (4) marketing or business plans, (5) plans for new products or services, (6) reports of customer orders or sales or other documents that would disclose names and addresses of customers or potential customers, (7) information concerning the financial condition or personal affairs of any individual, (8) financial statements or projections, (9) sales or earnings forecasts, (10) capital or strategic plans, (11) information regarding research and development, (12) tax returns, or (13) other commercial, credit or financial information with respect to the financial condition or business operations of an applicant for or recipient of financial assistance which is of a type not customarily made available to the public.

(b) The enumeration in this section of particular types of data and information shall not be construed to limit the possible applicability of subdivision (5) of subsection (b) of section 1-210 of the general statutes, as amended by this act, to other data or information not so enumerated.

Sec. 4. (NEW) All information contained in any application for financial assistance submitted to the Department of Economic and Community Development or the Connecticut Development Authority prior to October 1, 2000, and all information with respect to any person or project, including all financial, credit and proprietary information, obtained by the Department of Economic and Community Development or the Connecticut Development Authority prior to October 1, 2000, or on or after October 1, 2000, pursuant to the requirements of an agreement entered into prior to October 1, 2000, shall be exempt from the provisions of subsection (a) of section 1-210 of the general statutes, as amended.

Sec. 5. Section 2-90 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) The Auditors of Public Accounts shall organize the work of their office in such manner as they deem most economical and efficient and shall determine the scope and frequency of any audit they conduct.

(b) Said auditors, with the Comptroller, shall, at least annually and as frequently as they deem necessary, audit the books and accounts of the Treasurer and certify the results to the Governor. The auditors shall, at least annually and as frequently as they deem necessary, audit the books and accounts of the Comptroller and certify the results to the Governor. They shall examine and prepare certificates of audit with respect to the financial statements contained in the annual reports of the Treasurer and Comptroller, which certificates shall be made part of such annual reports.

(c) Said auditors shall audit, on a biennial basis if deemed most economical and efficient, or as frequently as they deem necessary, the books and accounts of each officer, department, commission, board and court of the state government, all institutions supported by the state and all public and quasi-public bodies, politic and corporate, created by public or special act of the General Assembly and not required to be audited or subject to reporting requirements, under the provisions of chapter 111. Each such audit may include an examination of performance in order to determine effectiveness in achieving expressed legislative purposes. The auditors shall report their findings and recommendations to the Governor, the State Comptroller, the joint standing committee of the General Assembly having cognizance of matters relating to appropriations and the budgets of state agencies, and the Legislative Program Review and Investigations Committee.

(d) The Auditors of Public Accounts may enter into such contractual agreements as may be necessary for the discharge of their duties. Any audit or report which is prepared by a person, firm or corporation pursuant to any contract with the Auditors of Public Accounts shall bear the signature of the person primarily responsible for the preparation of such audit or report. As used in this subsection, the term "person" means a natural person.

(e) If the Auditors of Public Accounts discover, or if it should come to their knowledge, that any unauthorized, illegal, irregular or unsafe handling or expenditure of state funds or any breakdown in the safekeeping of any resources of the state has occurred or is contemplated, they shall forthwith present the facts to the Governor, the State Comptroller, the clerk of each house of the General Assembly, the legislative Program Review and Investigations Committee and the Attorney General. Any Auditor of Public Accounts neglecting to make such a report, or any agent of the auditors neglecting to report to the Auditors of Public Accounts any such matter discovered by him or coming to his knowledge shall be fined not more than one hundred dollars or imprisoned not more than six months or both.

(f) All reports issued or made pursuant to this section shall be retained in the offices of the Auditors of Public Accounts for a period of not less than five years. The auditors shall file one copy of each such report with the State Librarian.

(g) Each state agency shall keep its accounts in such form and by such methods as to exhibit the facts required by said auditors and, the provisions of any other general statute notwithstanding, shall make all records and accounts available to them or their agents, upon demand.

(h) Where there are statutory requirements of confidentiality with regard to such records and accounts or examinations of nongovernmental entities which are maintained by a state agency, such requirements of confidentiality and the penalties for the violation thereof shall apply to the auditors and to their authorized representatives in the same manner and to the same extent as such requirements of confidentiality and penalties apply to such state agency. In addition, the portion of any audit or report prepared by the Auditors of Public Accounts that concerns the internal control structure of a state information system shall not be subject to disclosure under the Freedom of Information Act, as defined in section 1-200.

Sec. 6. Subdivision (4) of subsection (b) of section 1-206 of the general statutes is repealed and the following is substituted in lieu thereof:

(4) Notwithstanding any provision of this subsection to the contrary, 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.

Sec. 7. Subdivision (10) of subsection (c) of section 7-148 of the general statutes is repealed and the following is substituted in lieu thereof:

(10) (A) Make all lawful regulations and ordinances in furtherance of any general powers as enumerated in this section, and prescribe penalties for the violation of the same not to exceed one hundred dollars, unless otherwise specifically provided by the general statutes. Such regulations and ordinances may be enforced by citations issued by designated municipal officers or employees, provided the regulations and ordinances have been designated specifically by the municipality for enforcement by citation in the same manner in which they were adopted and the designated municipal officers or employees issue a written warning providing notice of the specific violation before issuing the citation;

(B) Adopt a code of ethical conduct;

(C) Establish and maintain free legal aid bureaus;

(D) Perform data processing and related administrative computer services for a fee for another municipality;

(E) Adopt the model ordinance concerning a municipal freedom of information advisory board created under subsection (f) of section 1-205, as amended by this act, and establish a municipal freedom of information advisory board as provided by said ordinance and said section.

Sec. 8. Section 1-205 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) There shall be a Freedom of Information Commission consisting of five members appointed by the Governor, with the advice and consent of either house of the General Assembly, who shall serve for terms of four years from the July first of the year of their appointment, except that of the members appointed prior to and serving on July 1, 1977, one shall serve for a period of six years from July 1, 1975, one shall serve for a period of four years from July 1, 1975, and one shall serve for a period of six years from July 1, 1977. Of the two new members first appointed after July 1, 1977, one shall serve from the date of such appointment until June 30, 1980, and one shall serve from the date of such appointment until June 30, 1982. No more than three members shall be members of the same political party.

(b) Each member shall receive fifty dollars per day for each day such member is present at a commission hearing or meeting, and shall be entitled to reimbursement for actual and necessary expenses incurred in connection therewith, in accordance with the provisions of section 4-1.

(c) The Governor shall select one of its members as a chairman. The commission shall maintain a permanent office at Hartford in such suitable space as the Commissioner of Public Works provides. All papers required to be filed with the commission shall be delivered to such office.

(d) The commission shall, subject to the provisions of the Freedom of Information Act promptly review the alleged violation of said Freedom of Information Act and issue an order pertaining to the same. Said commission shall have the power to investigate all alleged violations of said Freedom of Information Act and may for the purpose of investigating any violation hold a hearing, administer oaths, examine witnesses, receive oral and documentary evidence, have the power to subpoena witnesses under procedural rules adopted by the commission to compel attendance and to require the production for examination of any books and papers which the commission deems relevant in any matter under investigation or in question. In case of a refusal to comply with any such subpoena or to testify with respect to any matter upon which that person may be lawfully interrogated, the superior court for the judicial district of Hartford, on application of the commission, may issue an order requiring such person to comply with such subpoena and to testify; failure to obey any such order of the court may be punished by the court as a contempt thereof.

(e) The Freedom of Information Commission, and the Department of Information Technology with respect to access to and disclosure of computer-stored public records, shall conduct training sessions, at least annually, for members of public agencies for the purpose of educating such members as to the requirements of sections 1-7 to 1-14, inclusive, 1-16 to 1-18, inclusive, 1-200 to 1-202, inclusive, 1-205, 1-206, 1-210 to 1-217, inclusive, as amended, 1-225 to 1-232, inclusive, as amended, 1-240, 1-241 and 19a-342.

(f) Not later than December 31, 2001, the Freedom of Information Commission shall create, publish and provide to the chief elected official of each municipality a model ordinance concerning the establishment by any municipality of a municipal freedom of information advisory board to facilitate the informed and efficient exchange of information between the commission and such municipality. The commission may amend the model ordinance from time to time.

[(f)] (g) When the General Assembly is in session, the Governor shall have the authority to fill any vacancy on the commission, with the advice and consent of either house of the General Assembly. When the General Assembly is not in session any vacancy shall be filled pursuant to the provisions of section 4-19. A vacancy in the commission shall not impair the right of the remaining members to exercise all the powers of the commission and three members of the commission shall constitute a quorum.

[(g)] (h) The commission shall, subject to the provisions of chapter 67, employ such employees as may be necessary to carry out the provisions of this chapter. The commission may enter into such contractual agreements as may be necessary for the discharge of its duties, within the limits of its appropriated funds and in accordance with established procedures.

[(h)] (i) The commission shall make available to the public the printed reports of its decisions, opinions and related materials at a reasonable cost not to exceed the actual cost thereof to said commission but not less than twenty-eight dollars per item.

[(i)] (j) The Freedom of Information Commission shall not be construed to be a commission or board within the meaning of section 4-9a.

Sec. 9. Subsection (k) of section 32-11a of the general statutes is repealed.

Sec. 10. This act shall take effect July 1, 2000, except that sections 1 to 4, inclusive, 6 and 9 shall take effect October 1, 2000.

Approved May 16, 2000