Connecticut’s “vexatious” standard for open record requests should scare the hell out of student journalists

The state of Connecticut recently passed a law that allows public agencies to deny open records to any citizens the agencies feel are pests. Although the legalese is a bit more nuanced, this news piece captures the core of the law:

Citizens who routinely and repeatedly file Freedom of Information complaints over thin reasons are the subjects of a new law passed by the state legislature and signed by Gov. Dannel P. Malloy June 7.

House Bill 5175 ā€” An Act Concerning Appeals Under the Freedom of Information Act and Petitions for Relief from Vexatious Requesters ā€” gives additional authority to the Freedom of Information Commission to determine whether a FOIA request or appeal is vexatious and if so determined, grant relief to an aggrieved municipality or public agency.

An agency may petition the commission for relief from someone the agency alleges is a vexatious requester. Upon receiving the petition the commission shall determine whether, given the allegations, a hearing is warranted.

If it is determined that no hearing is warranted, the commission can dismiss the petition, said state Sen. Toni Boucher (R-26), who voted for the bill. If, after a hearing, the commission determines the request rises to the level of a vexatious requester, it can grant relief to the municipality or public agency. That would allow a municipality or public agency to not respond to their requests for a period of a year, she said.

The term “vexatious” sounds like something predatory, but as the Student Press Law Center’s coverage of the topic explains, it simply means anyone “who repeatedly attempts to get information from their government through frequent or voluminous requests.”

(So, so, so sorry to “vex” you m’lord…)

This should scare the hell out of you as a student journalist, even if you don’t live in Connecticut. The idea of “how much is too much” is now in the hands of people who don’t want to tell you things, thus giving them a leg up in potentially punishing you for your requests. Also, if one state does something and it turns out to be a really bad idea that punishes journalists and gives people the opportunity to hide their weaseldom, it’s a safe bet a few other states are likely to try this thing. Keep an eye out in your state for similar bills that might wander into the statehouse.

Frank LoMonte, who has worked for and with SPLC for years, noted that the vague language in that definition, as well as the lack of any measurable to quantify the difference between “vexatious” and simply being a pain in the keester of a record keeper, makes this law a serious problem:

“While a journalist making legitimate use of FOI requests shouldn’t ever have to worry about being categorized as ‘vexatious,’ the Connecticut law doesn’t give adequate guidance about what makes someone a ‘vexatious’ requester,ā€ LoMonte said. “Basically if a school district or a college got tired of a particular reporter, they could petition to have the person banned from making future FOI requests on the grounds that their requests were too frequent. But there’s nothing in the law that specifies whether thirty requests a year, or three, is regarded as too many.”

When I saw this, I remembered a student I had in Indiana named Justin Hesser, who started as the Ball State Daily News working as a quiet, unassuming sports reporter. During one summer, he made an open records request on some documents pertaining to a beef the school was having with its custodial and food employees. He dug into meeting minutes, agendas and all sorts of emails to find out what was going on with a contract dispute. The story itself turned out to be relatively pedestrian, but Justin was hooked on FOIA.

He started digging into tons of stories on campus, using the open records law to shine a light into all manner of dark corners at the university. He looked at allegations of sexual harassment, NCAA violations and more. My favorite story was the time he unearthed a $44.5 million “slush fund” the university developed based on unused student meal money. The best quote of the story came from Jon Lewis, the director of dining services, who admitted the whole thing was rigged against the students:

“If there’s not that much forfeited money we’d have to charge the students more so that we could put that money in the surplus,” Lewis said.

I had a meeting with the head of PR for the university at one point to talk about something or other, but the first words out of her mouth were: “You have to get a handle on this Hesser kid.”

Why? He’s not doing anything illegal. He’s actually doing his job better than a lot of journalists.

“He’s turning in like three requests a day!” she told me. “And he’s WALKING THEM IN!”

Justin had found a neat part of Indiana law that stated requests anyone mailed, faxed or emailed in gave the record keepers seven days to respond. However if the requester physically presented the request (as in walked it over to the record keeper and hand it it to him or her), the agency had to time stamp the request and reply within 24 hours.

So, he wants you to abide by the law?

“We have to respond within TWENTY FOUR HOURS!” she yelped at me, as if her tone would somehow convince me that Justin was doing something wrong. “We don’t have the personnel to do that for EVERYONE!”

I told her he was abiding by the law and that it wasn’t his fault she felt overwhelmed by a college kid filing FOIA requests out of a student newsroom. She couldn’t just deny his requests out of convenience. However, if this new Connecticut law was the rule of the land, this is exactly what could happen.

The concept of open records is the idea that citizens have the right to access documents to understand what public agencies are doing for them and to them. Record keepers have been trying to cut into those rights in a variety of ways, such as requiring requesting parties to pay exorbitant fees and delaying the fulfillment of the requests until the information the documents contain would be old news. In other cases, the records are so heavily redacted (where the record keeper “blacks out” portions of the text for a variety of reasons) they are essentially worthless.

(A quick post-script: Justin Hesser graduated from Ball State, to the relief of the university’s PR department, about a year after that meal money story ran. He went on to study law at the University of Wyoming and is now an attorney and a partner in a Cheyenne, Wyoming, law firm.)

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