Section 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.  Petition for relief from vexatious requester.  Service of process upon commission.  Frivolous appeals.  Appeal re state hazardous waste program records.  (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 actual or constructive notice 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 or by electronic transmission, 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, by electronic transmission 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 not later than 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 five 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 such person pursuant to this subsection by written notice sent by certified or registered mail or electronic transmission.  If a person fails to pay the penalty not later than thirty days after receiving such notice, the Superior Court 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 New Britain, not later than 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, including, among other factors, whether the request or appeal is repetitious or cumulative; (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; (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; (D) any history of nonappearance at commission proceedings or disruption of the commission's administrative process, including, but not limited to, delaying commission proceedings; and (E) the refusal to participate in settlement conferences conducted by a commission ombudsman in accordance with the commission's regulations.

(4)  Notwithstanding any provision of this subsection, 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.

(5) Notwithstanding any provision of this subsection, in the case of an appeal to the commission of a denial by a public agency where, after a hearing, the commission finds the public agency is engaging in a practice or pattern of conduct that constitutes an obstruction of any right conferred by the Freedom of Information Act or reckless, wilful or wanton misconduct with regard to the delay or denial of responses to requests for public records under said act, the commission may impose a civil penalty of not less than twenty dollars nor more than five thousand dollars against a custodian or other official of such public agency, and order such other relief that the commission, in its discretion, determines is appropriate to rectify such obstruction or misconduct and to deter such public agency from violating the Freedom of Information Act. In case of any failure or refusal to comply with any order issued under this subdivision, the commission may apply to the superior court for the judicial district of New Britain for an order requiring such public agency to comply with such order.

(6) Notwithstanding any provision of this subsection, a public agency may petition the commission for relief from a requester that the public agency alleges is a vexatious requester. Such petition shall be sworn under penalty of false statement, as provided in section 53a-157b, and shall detail the conduct which the agency alleges demonstrates a vexatious history of requests, including, but not limited to: (A) The number of requests filed and the total number of pending requests; (B) the scope of the requests; (C) the nature, content, language or subject matter of the requests; (D) the nature, content, language or subject matter of other oral and written communications to the agency from the requester; and (E) a pattern of conduct that amounts to an abuse of the right to access information under the Freedom of Information Act or an interference with the operation of the agency. Upon receipt of such petition, the executive director of the commission shall review the petition and determine whether it warrants a hearing. If the executive director determines that a hearing is not warranted, the executive director shall recommend that the commission deny the petition without a hearing. The commission shall vote at its next regular meeting after such recommendation to accept or reject such recommendation and, after such meeting, shall issue a written explanation of the reasons for such acceptance or rejection. If the executive director determines that a hearing is warranted, the commission shall serve upon all parties, by certified or registered mail or electronic transmission, a copy of such petition together with any other notice or order of the commission. The commission shall, after due notice to the parties, hear and either grant or deny the petition not later than one year after its filing. Upon a grant of such petition, the commission may provide appropriate relief commensurate with the vexatious conduct, including, but not limited to, an order that the agency need not comply with future requests from the vexatious requester for a specified period of time, but not to exceed one year. Any party aggrieved by the commission's granting of such petition may apply to the superior court for the judicial district of New Britain, not later than fifteen days after the commission meeting at which such petition was granted, for an order reversing the commission's decision.

(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 (1) first-class mail to the address, or (2) electronic transmission to the information processing system, as defined in section 1-267, 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 Energy and 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 Energy and 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; P.A. 11-80, S. 1; P.A. 17-86, S. 1; P.A. 18-95, S. 1; P.A. 19-64, S. 14.; June Sp. Sess. P.A. 21-2, S.148; P.A. 23-200, S.1)