Did the University of Connecticut’s “behind closed doors” budget discussion violate the state’s Freedom Of Information Act?

Answer: Yes.

Explanation:  Without a single word of discussion, the UConn Board of Trustees recently voted to adopt a $1.3 billion budget for the upcoming year.  How is it possible to adopt a budget of that magnitude without any public discussion?

According to UConn, by having the discussion behind closed doors before the formal vote in public session.

Is that permissible under the state Freedom of Information Act?  UConn’s general counsel says it is.  He says that the FOIA allows public agencies to meet behind closed doors (i.e., in executive session) if the subject of a discussion is a preliminary draft of a document AND the agency determines that public interest is better served by keeping the draft private.

I disagree.  I think UConn’s interpretation of the FOIA is unreasonable and illogical.

Here is what the FOIA says.  One provision, General Statutes section 1-210(b)(1), says that a public agency need not disclose “Preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.”  (My emphasis.)  Another provision, section 1-200(6)(E), says that a public agency may go into executive session for the “discussion of any matter which would result in the disclosure of public records or the information contained therein described in [section 1-210(b)].”

Essentially, UConn’s position is that any budget document remains nothing more than a preliminary draft until it is voted on in public session and, therefore, is exempt from disclosure under section 1-210(b)(1) as long as the board of trustee believes that the public interest in nondisclosure of the draft clearly outweighs the public interest in disclosure.  UConn argues that if the draft budget document is exempt under section 1-210(b)(1), it follows that section 1-200(6)(E) allows the board to discuss the budget in executive session.

I strongly disagree with UConn’s interpretation of the FOIA.

I flatly reject the proposition that there is a compelling public interest in non-disclosure of the budget document that is presented to members of the board of trustees for consideration.  To be sure, the development of a budget document occurs in many stages, and no doubt the document goes through many drafts before one is finally presented to the board of trustees for consideration and debate.  There are valid reasons why those early draftsneed not be disclosed.  But once a budget document gets to the point that it is distributed to the board of trustees for debate, it is no longer a “preliminary draft.”

Further, it is certainly not a document about which one can say with a straight face that the public interest in non-disclosure clearly outweighs the interest in disclosure.

To conclude otherwise would be to transform one of the most important documents that any public entity like UConn ever debates –its budget – into something that can always be debated and discussed in secret, with the agency coming to an actual decision about adopting the budget behind closed doors and only announcing its decision through a phony vote in public session.

That is not what the drafters of the FOIA intended, and the text of the FOIA cannot sustain such an unreasonable interpretation.

Dan Klau is an attorney with McElroy, Deutsch, Mulvaney & Carpenter, LLP. His opinions are his own and not those of his law firm.

 He is also the immediate Past President of the Connecticut Foundation for Open Government and is a member of the board of the Connecticut Council on Freedom of Information.

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