Thin excuses for keeping the public in the dark
At a Jan. 3 proceeding conducted by a Connecticut Freedom of Information Commission hearing officer, an attorney for the Connecticut Port Authority was pressed as to why the authority had waited nearly five months — until the day of the hearing — to hand over documents requested by The Day and columnist David Collins.
“My dog ate it,” testified the attorney.
We speak metaphorically. He didn’t precisely say that. But the excuse he provided was almost as thin.
The attorney general’s office wanted the authority to withhold the documents, testified Robison + Cole attorney Edward J. Heath.
Well, the AG’s office didn’t exactly make them do it, Heath clarified when pressed to be more specific. It hinted that the authority should consider stalling on the information sought by the newspaper.
What Collins had asked for was an investigatory subpoena that the office of Connecticut Attorney General William Tong had served on the Connecticut Port Authority and the documents the authority provided in compliance. Collins made the FOI request back in July after learning of the investigation. The authority is the subject of both state and federal investigations.
Heath testified at the Jan. 3 hearing that, as a courtesy, he had disclosed the FOI request to Assistant Attorney General Joshua Jackson, who works in the Antitrust and Government Fraud Division. Jackson, Heath said, expressed “concerns” about releasing the information while the investigation continued. The authority, in withholding the documents, cited the investigation.
The thing is, Jackson never explicitly asked that the information be withheld. The AG’s office filed no such request. Instead, when The Connecticut Mirror inquired of the attorney general’s office — way back in August — if the investigation was the reason for the port authority’s noncompliance with the FOI request, Deputy Attorney General Margaret Chapple answered, obliquely, that “the attorney general’s office does not represent the Connecticut Port Authority.”
That sure doesn’t sound as if the attorney general’s office was terribly concerned about the information being made public.
Yet the authority, via its high-priced law firm, used that fig leaf to stall for months, until the day of the hearing, a hearing that would have concluded what everyone knew from the start — the subpoena and the documents provided in response to it are public records that should have promptly been provided to Collins and this newspaper.
The investigation likely includes the authority’s May 2018 hiring of Seabury Capital to lead the search for a pier operator. Seabury received $700,000, including a controversial $523,000 “success” or finder’s fee. Seabury won the search contract three months after Henry Juan III — a managing director with Seabury — had resigned from the authority board.
It all looks bad. The authority and its chairman, David Kooris, were in no hurry to hand over information to Collins, a fierce critic of the quasi-public agency. The AG investigation, the source of the subpoena, provided the excuse. It is a weak one. Unless Attorney General Tong was ready to go on record to block their release, the authority should have provided the documents promptly.
This case raises the larger issue of the Achilles heel of the state’s FOI law — long delays. Last year the FOI issued 218 decisions. Only 20 of those cases originated in 2022. Another 123 dated to 2021, 69 to 2020, and six all the way back to 2019. While the pandemic contributed to the backlog, long delays were a problem before it and continue after it.
Government agencies know they can stall the release of information for months, and sometimes years, by simply saying no and forcing requesters to go through the FOI hearing process. Yes, some record denials point to legitimate exceptions to the disclosure law, but even in those cases a decision needs to be rendered in a timely fashion.
Possible solutions include tougher and more frequent penalties when an agency is found stalling with no legitimate basis; a “summary judgment” process that would allow the commission to order a quick release of records without a hearing when the facts and the law make it clear the documents are public; and perhaps increased staffing.
William E Gladstone, a British prime minister in the late 1800s, famously said, “Justice delayed is justice denied.” The same could be said for the delaying of information to which the public is entitled.