When you submit a Freedom of Information Act request to a state agency for public documents, sometimes you get a response saying officials searched the records but found nothing “responsive to your request.”
Usually that response is true, but not always. Take, as an example, what happened when The Courant asked the Department of Energy and Environmental Protection July 9 for any written communications received or sent since March 1 by DEEP Commissioner Katie Dykes with regard to a controversial proposal by BNE Energy to expand their wind turbine farm in Colebrook.
“Please be advised that we have not located any records responsive to your request,” went the July 29 response from Dykes’ legal counsel’s office.
Within days, though, a source gave The Courant two emails – one that Dykes received on June 14, and the other she sent on June 15 – both with “BNE Wind Turbine” in the subject field.
To be sure, this wasn’t the biggest of government failures. But, then again, it was a pretty simple FOIA request that could have been fulfilled via a diligent computerized search or by asking Dykes, a Yale-educated attorney, if she remembered receiving or writing any emails lately about gigantic towers with elongated, rotating blades on a hilltop.
The fact that DEEP didn’t come across with these emails raises the question of how important the oft-mouthed idea of government “transparency” is, or isn’t, to Gov. Ned Lamont and his executive branch appointees.
Here are a few items related to that question, starting with the recent DEEP episode:
- DEEP’s chief of staff, Lee Sawyer, said Friday that failing to produce the emails was unintentional. The “search terms” that were used in the initial electronic inquiry, which took 20 days, didn’t turn them up, Sawyer said. They weren’t located, he added, until The Courant asked why the DEEP hadn’t released them and provided the dates and times they were sent. On Friday, DEEP handed them over, along with several other emails it found. But here’s the thing about the way this happened: People rely on an agency to give valid answers. Not everyone has an outside, backup source of information, as The Courant did in this case – and, lacking such a Plan B, a citizen might simply accept the government’s false statement that no “responsive records” exist. Sawyer maintained Friday that “disclosure and transparency … [are] a high priority for the commissioner, and we’ll do everything we can to provide information that’s helpful to the public.”
- The Partnership for Connecticut – a public-private education venture that Lamont persuaded the legislature to form last year between the state and hedge fund billionaire Ray Dalio – fell apart in May after a major internal upheaval and criticism by a Republican legislative leader of its penchant for secrecy under an exemption from Connecticut’s FOI and ethics laws. Lamont and Dalio agreed to dissolve the venture a week after Mary Anne Schmitt-Carey, hired only March 23 as CEO of the nonprofit group that was slated to receive $100 million in state taxpayer funds, complained in a May 12 email to various public officials about an attempt to fire her a week earlier. Lamont blamed a “leak” to The Courant for the decision to pull the plug, apparently referring to the newspaper’s reporting on Schmitt-Carey’s May 12 email, which was a public record, readily available under the FOI law.
- Top officials at the Department of Social Services dragged their feet when an employee there filed an FOIA request last October for the results of a consultant’s mid-2019 survey of DSS employees’ morale. They finally handed it over in June after the worker, tired of waiting, filed a complaint with the state Freedom of Information Commission in May. Lamont’s appointee as DSS commissioner, Deidre Gifford, then emailed employees at three agency divisions, saying the survey is “of limited use because of its age.” But it would have been only three months old if released when first requested.
- Lamont was criticized in late April by legislative Republicans over the exemption from freedom of information laws of his “Reopen Connecticut Advisory Group,” a 47-member task force to recommend steps for reopening the state from the coronavirus shutdown. The group was created under the umbrella of AdvanceCT, a nonprofit organization that seeks to improve the business climate and isn’t subject to FOI. Lamont’s chief spokesman, Max Reiss, said back then that emails would be available because 13 of the 47 members were public officials who are subject to the FOI laws. However, the governor’s office has yet to produce even one email or text for which Government Watch submitted an FOIA request on April 29. The request is for communications among three state officials – Lamont, his chief of staff Paul Mounds, and state Chief Operating Officer Josh Geballe – and four members of the now-disbanded reopening task force, including co-chairs Indra Nooyi, the ex-CEO of PepsiCo, and Dr. Albert Ko, professor and department chair at the Yale School of Public Health.
Reiss said Thursday the governor’s office has been “buried” under an avalanche of news organizations’ and legislators’ coronavirus-related FOIA requests. “We are in the middle of getting out from under the mountain of FOIAs we have right now,” he said. “Try not to read into it anything other than us being overwhelmed with tons of this stuff.” For example, he said a couple of Courant reporters had submitted an FOIA request around the end of April “asking for every email relating to COVID-19 dating back to the first of the year.” There have been similar requests from other news organizations, he said, adding: “We have a staff of four attorneys tasked with providing legal counsel to the governor, drafting executive orders and assisting state agencies, in addition to their duties processing FOI requests.”
The June 14 and 15 emails that the DEEP initially failed to produce on the Colebrook project were potentially sensitive.
Dykes, in her role as commissioner, is an “ex-officio member” of the Connecticut Siting Council, which has begun a monthslong process of evaluating a June 5 request by neighbors of the Colebrook wind farm for a “declaratory ruling” against its proposed expansion. Ultimately, DEEP would be expected to cast a vote on the siting council, for or against the neighbors’ request. That vote probably would be cast by a Dykes subordinate serving as her ex-officio designee on the board.
Any official who plays such a decision-making role is bound by law to avoid communicating with a party on one side of a case without the opposing party’s knowledge, or outside legally permitted procedural channels. In 2011, the siting council’s then-chairman, Daniel Caruso, resigned after he was accused of having an improper “ex parte” communication with a lawyer for a group opposing this same BNE wind project in Colebrook at an early stage of its development.
The June 14 email in question was sent by Mounds, the gubernatorial chief of staff, to Dykes, the commissioner.
Mounds used his email to forward to Dykes, without comment, an email he’d received earlier that day from Julia Gold, who with her husband is a vocal opponent and neighbor of BNE’s proposed expansion in Colebrook. She told Mounds that she’s a friend of former DEEP Deputy Commissioneer Macky McCleary, who “suggested I connect with you regarding a legal issue with the CT Siting Council.” Gold said the governor’s office “should be aware that the Siting Council has abused its power to approve BNE’s project unlawfully without due process,” and asked “when you might have a few minutes to connect.” (Gold said Friday she got no response to her email.)
On June 15, Dykes forwarded the Mounds-Gold email thread to three of her subordinates, including her longtime designee who sits in her ex-officio spot on the siting council, Robert Hannon. “Bob, can you advise? Thanks,” she wrote.
She also sent a “cc” to Sawyer, her chief of staff. Asked Friday if any concerns about unauthorized communications led DEEP to not release the emails at first, Sawyer said no, “it was an error.”
Contacted by The Courant, Greg Zupkus, the president and CEO of BNE Energy, said in an email that “it is troubling to find out that the Golds are trying to use political influence to inappropriately subvert the public process and by doing so they have placed the Governor’s Office and DEEP, who have worked very hard to promote renewable [energy] in the state, in an untenable situation.”
“It is very concerning that someone who moved from Massachusetts to Connecticut in 2018 to live adjacent to a wind farm … would use such questionable tactics to oppose green energy in our great state. We recently reached out to them with a good faith settlement proposal and will continue to try to settle this matter amicably,” said Zupkus, who is married to state Rep. Lezlye Zupkus, R-Prospect.
Gold, told of those comments, responded in an email: “I am surprised BNE accuses us of impropriety. There is nothing improper about reaching out to government officials about problems in our communities. BNE used an unscrupulous maneuver to circumvent the state’s wind siting regulations. We support the development of renewable energy in Connecticut, but expecting BNE to comply with the regulations and ensure the safety of citizens is a perfectly reasonable position. We are challenging this project with formal proceedings in the open. Attacking us for exercising our rights is even more troubling.”
FOI a ‘primary duty’
About a month ago, a state Superior Court judge strongly upheld the principle that promptly fulfilling public records requests is a “primary duty” of government officials.
“The court interprets ‘primary duty’ in this sense as an important duty … on par with the [agency’s] other significant duties, or said another way, that the agency’s FOIA duty is not a second class duty,” Judge John L. Cordani wrote July 2 in a decision dismissing the state Department of Emergency Services and Public Protection’s appeal of a 2018 decision by the Freedom of Information Commission.
In that decision, the FOI commission found that the DESPP’s then-commissioner, Dora Schriro, unlawfully delayed her agency’s response to a 2017 Connecticut State Police Union request for records of investigations of its president, state police Sgt. Andrew Matthews.
DESPP disputed the commission’s finding that its FOI-related responsibilities were “primary duties” ranking with protecting public safety, but Cordani wrote in his decision: “An agency’s FOIA duty is a statutory duty or command. As such, it is not second class to any other statutory duty or command.”
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