Media balks, then plug pulled on FOI change

UPDATED 7:24 p.m.

The administration of Gov. Dannel P. Malloy and legislators agreed Tuesday morning to scrap legislation that would have given the executive branch wide discretion to withhold information tied to private companies seeking state economic development assistance.

The governor’s general counsel, Andrew McDonald, distanced himself from the proposal, saying he agreed with a media coalition that the language was overly broad. But the administration acknowledged Tuesday night that language originated with its Office of Policy and Management.

Sen. John McKinney with the massive budget implementer bill. An FOI exemption sought by the administration in the measure was not immediately noticed by legislators.

Ben Barnes, the secretary of OPM, said that the FOI exemption first was proposed near the chaotic end of the regular session in May as an amendment to a bill authorizing the merger of two economic development entities, the Connecticut Development Authority and Connecticut Innovations.

No objections were raised in May by FOI proponents, because the session ended without action on the merger or the FOI amendment, Barnes said. Essentially the same language was included in one of two omnibus budget implementation bills finalized Monday.

When a media coalition objected, McDonald told The Mirror that the administration urged legislators to strike the FOI exemption. “We suggested they pull it, and we will work on it in the next session,” McDonald said.

Senate Minority Leader John P. McKinney, R-Fairfield, said he found that account misleading, since the language originated with OPM. Senate President Pro Tem Donald E. Williams Jr., D-Brooklyn, said legislators had decided to pull the FOI lanaguage on their own, not at the urging of the administration.

“It hadn’t been properly vetted. There were significant policy questions there,” Williams said.

McKinney said he warned Williams, “This FOIA lanaguage is a huge problem for me.” He promised “an ugly day” if it wasn’t deleted, McKinney said.

“He absolutely shared my concern. He said he didn’t like the language,” McKinney said,

House Majority Leader J. Brendan Sharkey, D-Hamden, said the legislature will adopt an amendment deleting the FOI provision from an omnibus bill to be adopted later Tuesday in special session that has been expanded to consider more than budget implementer bills.

A coalition of nearly three dozen newspapers, television and radio stations and other news media organizations first approached administration officials and legislators Monday with fears about the proposal that was expected to be considered Tuesday.

“The language needs to change. It is way overly broad,” said Jim H. Smith, president of the coalition, the Connecticut Council on Freedom of Information.

The disputed language in an early draft of an omnibus policy bill would exempt from disclosure public agency records “related to a request for assistance from a business or organization seeking to expand or relocate to this state, provided the disclosure of such records could adversely affect the financial interest of the state, the business or organization.”

Smith, a longtime Connecticut newspaper editor who retired two years ago as executive editor of the Bristol Press and the New Britain Herald, said the word “could” is crucial in the draft language.

“That word makes everything secret,” he said, adding it would be too easy to argue that disclosure might affect a company. Existing state statutes commonly known as the Freedom of Information law already exempt certain business records held by public agencies, provided:

• They contain commercial information.
• They are given in confidence.
• And that their disclosure is not required by some other statute.

The proposed changes stem largely from a dispute between the Norwich Bulletin and the Malloy administration over business inquiries into the governor’s “First Five” economic development initiative.

Shortly after noting in a February 2011 speech before the Eastern Connecticut Chamber of Commerce that 10 employers had contacted his office about the tax incentives and other benefits tied to First Five — which was still a proposal at that point — Malloy refused to release the names of those businesses to the newspaper.

The state Freedom of Information Commission rejected a complaint filed by the newspaper, but its decision hinged on a technicality.

The FOI panel found that the company names are commercial information given with an implied understanding of secrecy. And while the Bulletin argued that the governor’s office would have been required to release the names had First Five been in operation, the program wasn’t enacted into law by the legislature until June 2011 — four months after Malloy’s speech.

Barnes said the goal was to strike a balance between protecting proprietary information during negoations against the public’s right to know who is benefitting from public funds expended by the state in its economic development programs.