Earlier this year, the Connecticut General Assembly enacted several changes to the Connecticut Freedom of Information Act (“FOIA”) that will impact municipalities and other public agencies commencing October 1, 2008.
Under existing FOIA provisions, among other things, public agencies are required to (1) make minutes available for public inspection within seven days of the session to which such minutes refer, (2) file a schedule of regular meetings for each public agency not later than January 31 of the year to which such schedule relates, and (3) post notices/agenda of special meetings not less than twenty-four hours prior to the time of such meetings. The new requirements, enacted as part of Public Act 08-3 (June 11 Special Session, Section 11) (the “Act”) mandate that this information also now be provided on a public agency’s website.
Under FOIA, “public agencies” include any executive, administrative or legislative office of a political subdivision of the state as well as any “town agency, any department, institution, bureau, board, commission, authority or official of … any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state ….” Among other entities, every municipal-level board, commission and authority is a public agency subject to the requirements of FOIA.
The legislation raises a number of practical questions that are unanswered by the language of the new law. We have attempted to address these through conversations with staff counsel at the Connecticut Freedom of Information Commission (“Commission”). The first question is whether public agencies are required to create a new website if they do not already have one. The answer is “no.” The Act specifies that the information is required to be posted on a public agency’s website “if available.” Counsel to the Commission confirms that they do not interpret the Act as requiring public agencies to create websites just to comply with this law.
A more common situation is where a municipality already has a website. In those cases, the Commission takes the position that a city or town Internet website is available to all public agencies within that municipality and that, therefore, all public agencies of that municipality must publish the required information on that website. For example, a Board of Finance of a Town that already has a website will not have to create its own website, but it will have to publish all required information relating to that Board on the Town’s existing website. On the other hand, if a municipal board or commission already has its own website then that board or commission will be required to post the information on that site.
Another question is whether the Act effectively prohibits a municipality or other public agency from taking down an existing website. In short, the answer is “no,” unless the website is being taken down in order to avoid having to comply with the requirements of the Act. If a public agency took down an existing website and was challenged for doing so, the Commission would look at the facts and circumstances surrounding the reasons for taking it down. As long as the decision to abandon the site was made for reasons not related to compliance with the Act, a public agency’s decision to do so should survive such a challenge.
Section 11(b) of the Act requires that “public agenc[ies] of the state” now post on their website the schedule of regular meetings that they are required to file with the Secretary of the State not later than January 31 of the year to which such schedule relates. The Act does not extend the Internet posting requirement to the schedule of regular meetings of public agencies of any political subdivision of the state that must be filed with the clerk of such subdivision by January 31 of each year. Accordingly, the literal language of the Act does not require municipal level public agencies to post the schedule of regular meetings on their websites. It is unclear whether this was intentional on the part of the General Assembly or the result of an error in drafting. We have reviewed the legislative history of the Act to see if it addresses this issue. It does not. We believe that the safer course of action for municipalities and other municipal level public agencies is to include the schedule of regular meetings on their websites along with the information that they must post as a result of the Act.
Finally, the Act does not specify where on a website the required information must be posted. Municipalities have broad discretion in that regard. However, as a practical matter, we encourage municipalities to place this information in a place that is readily accessible to individuals who may be looking for it.
Please note that the information we received from Commission counsel is informal and has not been ratified by the Commission. Therefore, it is subject to change. Nevertheless, it should provide public agencies with useful guidance for complying with the requirements of the Act.