Sec. 1-206. (Formerly Sec. 1-21i). Denial of access to public records or meetings. Appeals. Notice. Orders. Civil penalty. Service of process upon commission. Frivolous appeals.
Sec. 1-206. (Formerly Sec. 1-21i). Denial of access to public records or meetings. Appeals. Notice. Orders. Civil penalty. Service of process upon commission.
Frivolous appeals. (a) Any denial of the right to inspect or copy records provided for
under section 1-210 shall be made to the person requesting such right by the public
agency official who has custody or control of the public record, in writing, within four
business days of such request, except when the request is determined to be subject to
subsections (b) and (c) of section 1-214, in which case such denial shall be made, in
writing, within ten business days of such request. Failure to comply with a request to
so inspect or copy such public record within the applicable number of business days
shall be deemed to be a denial.
(b) (1) Any person denied the right to inspect or copy records under section 1-210
or wrongfully denied the right to attend any meeting of a public agency or denied any
other right conferred by the Freedom of Information Act may appeal therefrom to the
Freedom of Information Commission, by filing a notice of appeal with said commission.
A notice of appeal shall be filed not later than thirty days after such denial, except in
the case of an unnoticed or secret meeting, in which case the appeal shall be filed not
later than thirty days after the person filing the appeal receives notice in fact that such
meeting was held. For purposes of this subsection, such notice of appeal shall be deemed
to be filed on the date it is received by said commission or on the date it is postmarked,
if received more than thirty days after the date of the denial from which such appeal is
taken. Upon receipt of such notice, the commission shall serve upon all parties, by
certified or registered mail, a copy of such notice together with any other notice or order
of such commission. In the case of the denial of a request to inspect or copy records
contained in a public employee's personnel or medical file or similar file under subsection (c) of section 1-214, the commission shall include with its notice or order an order
requiring the public agency to notify any employee whose records are the subject of an
appeal, and the employee's collective bargaining representative, if any, of the commission's proceedings and, if any such employee or collective bargaining representative
has filed an objection under said subsection (c), the agency shall provide the required
notice to such employee and collective bargaining representative by certified mail, return
receipt requested or by hand delivery with a signed receipt. A public employee whose
personnel or medical file or similar file is the subject of an appeal under this subsection
may intervene as a party in the proceedings on the matter before the commission. Said
commission shall, after due notice to the parties, hear and decide the appeal within one
year after the filing of the notice of appeal. The commission shall adopt regulations
in accordance with chapter 54, establishing criteria for those appeals which shall be
privileged in their assignment for hearing. Any such appeal shall be heard not later than
thirty days after receipt of a notice of appeal and decided not later than sixty days after
the hearing. If a notice of appeal concerns an announced agency decision to meet in
executive session or an ongoing agency practice of meeting in executive sessions, for
a stated purpose, the commission or a member or members of the commission designated
by its chairperson shall serve notice upon the parties in accordance with this section and
hold a preliminary hearing on the appeal not later than seventy-two hours after receipt
of the notice, provided such notice shall be given to the parties at least forty-eight hours
prior to such hearing. During such preliminary hearing, the commission shall take evidence and receive testimony from the parties. If after the preliminary hearing the commission finds probable cause to believe that the agency decision or practice is in violation
of sections 1-200 and 1-225, the agency shall not meet in executive session for such
purpose until the commission decides the appeal. If probable cause is found by the
commission, it shall conduct a final hearing on the appeal and render its decision not
later than five days after the completion of the preliminary hearing. Such decision shall
specify the commission's findings of fact and conclusions of law.
(2) In any appeal to the Freedom of Information Commission under subdivision (1)
of this subsection or subsection (c) of this section, the commission may confirm the
action of the agency or order the agency to provide relief that the commission, in its
discretion, believes appropriate to rectify the denial of any right conferred by the Freedom of Information Act. The commission may declare null and void any action taken
at any meeting which a person was denied the right to attend and may require the production or copying of any public record. In addition, upon the finding that a denial of any
right created by the Freedom of Information Act was without reasonable grounds and
after the custodian or other official directly responsible for the denial has been given
an opportunity to be heard at a hearing conducted in accordance with sections 4-176e
to 4-184, inclusive, the commission may, in its discretion, impose against the custodian
or other official a civil penalty of not less than twenty dollars nor more than one thousand
dollars. If the commission finds that a person has taken an appeal under this subsection
frivolously, without reasonable grounds and solely for the purpose of harassing the
agency from which the appeal has been taken, after such person has been given an
opportunity to be heard at a hearing conducted in accordance with sections 4-176e to
4-184, inclusive, the commission may, in its discretion, impose against that person a
civil penalty of not less than twenty dollars nor more than one thousand dollars. The
commission shall notify a person of a penalty levied against him pursuant to this subsection by written notice sent by certified or registered mail. If a person fails to pay the
penalty within thirty days of receiving such notice, the superior court for the judicial
district of Hartford shall, on application of the commission, issue an order requiring the
person to pay the penalty imposed. If the executive director of the commission has reason
to believe an appeal under subdivision (1) of this subsection or subsection (c) of this
section (A) presents a claim beyond the commission's jurisdiction; (B) would perpetrate
an injustice; or (C) would constitute an abuse of the commission's administrative process, the executive director shall not schedule the appeal for hearing without first seeking
and obtaining leave of the commission. The commission shall provide due notice to the
parties and review affidavits and written argument that the parties may submit and grant
or deny such leave summarily at its next regular meeting. The commission shall grant
such leave unless it finds that the appeal: (i) Does not present a claim within the commission's jurisdiction; (ii) would perpetrate an injustice; or (iii) would constitute an abuse
of the commission's administrative process. Any party aggrieved by the commission's
denial of such leave may apply to the superior court for the judicial district of Hartford,
within fifteen days of the commission meeting at which such leave was denied, for an
order requiring the commission to hear such appeal.
(3) In making the findings and determination under subdivision (2) of this subsection the commission shall consider the nature of any injustice or abuse of administrative
process, including but not limited to: (A) The nature, content, language or subject matter
of the request or the appeal; (B) the nature, content, language or subject matter of prior
or contemporaneous requests or appeals by the person making the request or taking the
appeal; and (C) the nature, content, language or subject matter of other verbal and written
communications to any agency or any official of any agency from the person making
the request or taking the appeal.
(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.
(c) Any person who does not receive proper notice of any meeting of a public agency
in accordance with the provisions of the Freedom of Information Act may appeal under
the provisions of subsection (b) of this section. A public agency of the state shall be
presumed to have given timely and proper notice of any meeting as provided for in said
Freedom of Information Act if notice is given in the Connecticut Law Journal or a
Legislative Bulletin. A public agency of a political subdivision shall be presumed to
have given proper notice of any meeting, if a notice is timely sent under the provisions
of said Freedom of Information Act by first-class mail to the address indicated in the
request of the person requesting the same. If such commission determines that notice
was improper, it may, in its sound discretion, declare any or all actions taken at such
meeting null and void.
(d) Any party aggrieved by the decision of said commission may appeal therefrom,
in accordance with the provisions of section 4-183. Notwithstanding the provisions of
section 4-183, in any such appeal of a decision of the commission, the court may conduct
an in camera review of the original or a certified copy of the records which are at issue
in the appeal but were not included in the record of the commission's proceedings, admit
the records into evidence and order the records to be sealed or inspected on such terms
as the court deems fair and appropriate, during the appeal. The commission shall have
standing to defend, prosecute or otherwise participate in any appeal of any of its decisions
and to take an appeal from any judicial decision overturning or modifying a decision
of the commission. If aggrievement is a jurisdictional prerequisite to the commission
taking any such appeal, the commission shall be deemed to be aggrieved. Notwithstanding the provisions of section 3-125, legal counsel employed or retained by said commission shall represent said commission in all such appeals and in any other litigation
affecting said commission. Notwithstanding the provisions of subsection (c) of section
4-183 and section 52-64, all process shall be served upon said commission at its office.
Any appeal taken pursuant to this section shall be privileged in respect to its assignment
for trial over all other actions except writs of habeas corpus and actions brought by or
on behalf of the state, including informations on the relation of private individuals.
Nothing in this section shall deprive any party of any rights he may have had at common
law prior to January 1, 1958. If the court finds that any appeal taken pursuant to this
section or section 4-183 is frivolous or taken solely for the purpose of delay, it shall
order the party responsible therefor to pay to the party injured by such frivolous or
dilatory appeal costs or attorney's fees of not more than one thousand dollars. Such
order shall be in addition to any other remedy or disciplinary action required or permitted
by statute or by rules of court.
(e) Within sixty days after the filing of a notice of appeal alleging violation of any
right conferred by the Freedom of Information Act concerning records of the Department
of Environmental Protection relating to the state's hazardous waste program under sections 22a-448 to 22a-454, inclusive, the Freedom of Information Commission shall,
after notice to the parties, hear and decide the appeal. Failure by the commission to hear
and decide the appeal within such sixty-day period shall constitute a final decision
denying such appeal for purposes of this section and section 4-183. On appeal, the court
may, in addition to any other powers conferred by law, order the disclosure of any such
records withheld in violation of the Freedom of Information Act and may assess against
the state reasonable attorney's fees and other litigation costs reasonably incurred in an
appeal in which the complainant has prevailed against the Department of Environmental
Protection.
(P.A. 75-342, S. 14; P.A. 76-435, S. 25, 82; P.A. 77-403; 77-603, S. 2, 125; 77-609, S. 6, 8; P.A. 78-331, S. 57, 58;
P.A. 81-431, S. 2, 3; P.A. 83-129, S. 1, 2; 83-587, S. 69, 96; June Sp. Sess. P.A. 83-31, S. 1, 2; P.A. 84-112, S. 2, 3; 84-136; 84-311, S. 1, 3; P.A. 86-408, S. 1, 4; P.A. 87-285, S. 2; 87-526, S. 4; P.A. 88-230, S. 1, 12; 88-317, S. 39, 107; 88-353, S. 2, 4; P.A. 90-98, S. 1, 2; 90-307, S. 1, 5; P.A. 92-207, S. 2; P.A. 93-142, S. 4, 7, 8; 93-191, S. 1, 4; P.A. 95-220,
S. 4-6; P.A. 97-47, S. 10-12; P.A. 00-136, S. 6; P.A. 07-202, S. 11.)
History: P.A. 76-435 made technical changes; P.A. 77-403 changed "person" to "party"; P.A. 77-603 required that
court appeals be made in accordance with Sec. 4-183; P.A. 77-609 changed provisions for appeals to freedom of information
commission and provided that legal counsel represent the commission in court appeals; P.A. 78-331 made technical changes,
reiterating amendments of P.A. 77-603; P.A. 81-431 added provisions in Subsec. (b) clarifying time of filing of notice of
appeal and authorizing imposition of civil penalties for unreasonable denials, added a provision in Subsec. (d) re service
of process upon the commission and deleted reference to commission's authority to impose fines for wilful and unreasonable
denials; P.A. 83-129 amended Subsec. (b) to allow the commission to penalize those who bring frivolous appeals and
amended Subsec. (d) by allowing the court to order those engaged in dilatory or frivolous appeals to pay the injured party's
costs or attorney's fees; P.A. 83-587 made technical change in Subsec. (c); June Sp. Sess. P.A. 83-31 established an
expedited hearing procedure for appeals involving executive sessions, effective July 1, 1984; P.A. 84-112 increased civil
penalty for denial of right of access to records from $500 to $1,000; P.A. 84-136 provided for extended appeal period in
the case of an unnoticed or secret meeting; P.A. 84-311 added provision re commission standing in appeals in Subsec. (d);
P.A. 86-408 changed time limit for hearing and decision on appeal to one year after filing of notice and required that
commission adopt regulations establishing criteria for privileged assignment for hearing for certain appeals which must
be decided within 90 days after filing; P.A. 87-285 amended Subsec. (b) to require notice to the employee of any appeal
to the commission regarding denial of access to his personnel or medical files, and to allow the employee to intervene as
a party in the proceedings; P.A. 87-526 amended Subsec. (d) to allow court to conduct in camera review of records which
are at issue in appeal but not included in record of commission's proceedings; P.A. 88-230 replaced "judicial district of
Hartford-New Britain" with "judicial district of Hartford", effective September 1, 1991; P.A. 88-317 amended references
to Ch. 54 and Secs. 4-177 to 4-184 in Subsec. (b) to include new sections added to Ch. 54 and substituted "subsection (c)
of section 4-183" for "subsection (b) of section 4-183" in Subsec. (d), effective July 1, 1989, and applicable to all agency
proceedings commencing on or after that date; P.A. 88-353 added requirement in Subsec. (b) re notice to collective bargaining representative; P.A. 90-98 changed the effective date of P.A. 88-230 from September 1, 1991, to September 1,
1993; P.A. 90-307, S. 1, re appeals re records of environmental protection department relating to state hazardous waste
program, was added editorially by the Revisors as Subsec. (e) in 1991; P.A. 92-207 amended Subsec. (a) to allow 10 days
for the denial of the right to inspect and copy records and to require that denial be made in writing pursuant to Subsecs.
(b) and (c) of Sec. 1-20a; P.A. 93-142 changed the effective date of P.A. 88-230 from September 1, 1993, to September
1, 1996, effective June 14, 1993; P.A. 93-191 amended Subsec. (b) by adding Subdiv. designations, adding Subdiv. (2)
provision regarding appeals which present a claim beyond the commission's jurisdiction, would perpetrate an injustice or
would constitute an abuse of the commission's administrative process, adding Subdiv. (3) regarding considerations in
determining injustice or abuse of administrative process, and adding Subdiv. (4) regarding dismissal without hearing,
effective July 1, 1993; P.A. 95-220 changed the effective date of P.A. 88-230 from September 1, 1996, to September 1,
1998, effective July 1, 1995; P.A. 97-47 amended Subsecs. (b), (c) and (e) by substituting "the Freedom of Information
Act" for list of sections; Sec. 1-21i transferred to Sec. 1-206 in 1999; P.A. 00-136 amended Subdiv. (b)(4) to insert Subpara.
(A) designator and to add new language as Subpara. (B) re technical violations that constitute harmless error; P.A. 07-202
amended Subsec. (b)(1) to require commission to take evidence and receive testimony during the preliminary hearing, to
require the decision to specify commission's findings of fact and conclusions of law and to make technical changes,
effective July 10, 2007.
See Sec. 1-2a re construing of references to "United States mail" or "postmark" to include references to any delivery
service designated by the Secretary of the Treasury pursuant to Section 7502 of the Internal Revenue Code of 1986 or any
successor to the code, as amended, and to any date recorded or marked as described in said Section 7502 by a designated
delivery service and construing of "registered or certified mail" to include any equivalent designated by the Secretary of
the Treasury pursuant to said Section 7502.
Annotations to former section 1-21i:
Cited. 181 C. 324. Cited. 182 C. 142. Cited. 184 C. 102. Cited. 190 C. 235. Cited. 192 C. 310. Cited. 198 C. 498.
Freedom of Information Act cited. 204 C. 609; 205 C. 767; 206 C. 449; 207 C. 698. Cited. 208 C. 442; 210 C. 590; 212
C. 100. Freedom of Information Act cited. 208 C. 442; 209 C. 204; 210 C. 590; Id., 646; 212 C. 100; 213 C. 126; Id., 216.
Freedom of Information Act (FOIA) cited. 214 C. 312. Freedom of Information Act (FOIA) cited. 216 C. 253. FOIA,
Freedom of Information Act, cited. 217 C. 153. Freedom of Information Act (FOIA) cited. Id., 193. Cited. 218 C. 256.
Freedom of Information Act cited. Id. Freedom of Information Act (FOIA) Sec. 1-18a et seq. cited. Id., 757; 220 C. 225.
Freedom of Information Act (FOIA) cited. 221 C. 217. Cited. Id., 300. Freedom of Information Act (FOIA) cited. Id.; Id.,
393. Freedom of Information Act cited. Id., 482; Id., 549. Freedom of Information Act (FOIA) cited. 222 C. 621. Freedom
of Information Act (FOIA) cited. 228 C. 158. Freedom of Information Act cited. Id., 271. Cited. 240 C. 835.
Cited. 2 CA 600. Cited. 4 CA 216. Freedom of Information Act cited. Id., 468; 14 CA 380; judgment reversed, see 210
C. 646. Board of pardons not an aggrieved party. Id. Freedom of Information Act cited. 16 CA 49; 19 CA 352; Id., 539;
20 CA 671. Freedom of Information Act (FOIA) cited. 22 CA 316. Freedom of Information Act (FOIA) cited. 29 CA 821.
Freedom of Information Act (FOIA) cited. 35 CA 111. Freedom of Information Act (FOIA) Sec. 1-15 et seq. cited. 37 CA
589. Freedom of Information Act, Sec. 1-15 et seq. cited. 42 CA 402. Cited. Id., 700; judgment reversed, see 240 C. 835.
Freedom of Information Act cited. 43 CA 133.
Freedom of Information Act cited. 41 CS 31; Id., 267; 42 CS 84; Id., 129; Id., 291.
Subsec. (a):
Cited. 204 C. 609.
Subsec. (b):
Cited. 182 C. 138. Time requirements are mandatory. 198 C. 498. Time limits mandatory. 199 C. 451. Cited. 201 C.
421. Cited. Id., 448. Cited. 204 C. 609. Cited. 205 C. 767. Where successive requests made for records are denied, appeals
may be made within thirty days of any denial. 208 C. 442. Cited. 209 C. 204. "... affords a right to appeal to the FOIC any
denial, whether written or statutory, of a request for disclosure of public records". 218 C. 256. Cited. 221 C. 217. Subdiv.
(1) cited. 233 C. 28. Subdiv. (2) cited. Id. Cited. 234 C. 704. Subdiv. (1) cited. 240 C. 1.
Cited. 16 CA 49. Cited. 35 CA 111. Subdiv. (2): Fines were valid when ordered after plaintiff refused to disclose records
as ordered. 54 CA 373. Commission must ensure that employee whose records are the subject of an appeal has received
notice of proceedings where the employer has failed to give required notice. 60 CA 584. Order of disclosure may not be
issued until employee whose records are the subject of an appeal has been given proper notice and opportunity for a hearing
to assert the personal privacy exemption. Id.
Failure of commission to hold a hearing and issue a decision on complaint within time periods prescribed by this
subsection did not void its jurisdiction, those time limits being directory, not mandatory. 36 CS 117. Cited. 39 CS 56. A
finding that commission violated the law is equivalent to a finding that commission individually and collectively violated
the law and therefore were the individuals "directly responsible for such denial". 40 CS 233.
Subsec. (c):
An appeal to superior court under this statute is the route to test whether Freedom of Information Commission acted
erroneously in failing to order a public hearing. 2 CA 600.
Subsec. (d):
Cited. 174 C. 308. Cited. 177 C. 584. Cited. 201 C. 421. Cited. 204 C. 609. Cited. 205 C. 767. Board of Pardons v.
FOIC, 14 CA 380, judgment reversed on issue of aggrievement. Id., 646. Cited. 213 C. 126; Id., 216. Cited. 217 C. 153.
Cited. 218 C. 335. Party status not necessary to standing for appeal of FOIC decision, only aggrievement by the decision
must be shown. 221 C. 217. Cited. 222 C. 621. Cited. 227 C. 848. Cited. 234 C. 624. Cited. 240 C. 1; Id., 824. Cited. 242
C. 79.
Plaintiff as intervenor, not party, without standing to appeal pursuant to section. 13 CA 315. Cited. 14 CA 380; judgment
reversed, see 210 C. 646. Cited. 19 CA 489. Cited. 36 CA 155. Cited. 41 CA 641; judgment reversed, see 240 C. 824.
Cited. 42 CA 39; judgment reversed, see 241 C. 310.
Cited. 35 CS 186. Cited. 39 CS 176; Id., 257. Cited. 41 CS 267. Cited. 42 CS 84; Id., 129; Id., 291. Cited. 43 CS 246.
Cited. 44 CS 230.
Annotations to present section:
Subsec. (b):
Legislature intended that the civil penalty provided by Subdiv. (2) would be the exclusive remedy for violation of a
right conferred by Freedom of Information Act. 267 C. 669.
Subdiv. (2): Fines were valid when ordered after plaintiff refused to disclose records as ordered. 54 CA 373. Commission
must ensure that employee whose records are the subject of an appeal has received notice of proceedings where the employer
has failed to give required notice. 60 CA 584. Order of disclosure may not be issued until employee whose records are the
subject of an appeal has been given proper notice and opportunity for a hearing to assert the personal privacy exemption. Id.