Corporation counsel briefs council on Freedom of Information Act: "If you do not want it out in the public, do not make a record of it"

Tracy Norris, assistant corporation counsel for Danbury City, gave newly elected council members a high-level briefing on the Freedom of Information Act, stressing the breadth of what constitutes a public record and practical steps to avoid inadvertent violations.

Norris said FOIA guarantees public access to records and meetings and that "records" include paper files, emails, texts, video and audio — including messages on personal devices when they concern city business. "If you do not want it out in the public, do not make a record of it," she told attendees.

She listed commonly cited exemptions (medical files, trade secrets, law-enforcement investigatory records, security records and other narrowly construed categories) and explained courts and the Freedom of Information Commission interpret exemptions narrowly and apply an invasion-of-privacy test requiring the information to be both highly offensive and not of legitimate public concern.

Norris instructed council members on response obligations: a standard acknowledgement of receipt must be sent within four business days; failure to acknowledge can lead to complaints to the FOI Commission and fines she said range from $1,000 to $10,000 in egregious cases. She also said that entities are not required to answer follow-up questions, do research, or create new records in response to a FOIA request — they must search for and produce existing responsive documents or explain that none were found after a good-faith search.

On meetings, Norris warned that any communication of city business sent to a majority of council members — including an email with a majority on the 'To' or 'Cc' line — constitutes a meeting under FOIA and triggers notice and minute requirements; she advised against 'reply all' in those situations. Norris also reviewed the limited reasons for executive session (personnel matters, collective-bargaining strategy, pending claims or litigation, security issues and certain real estate negotiations), said a two-thirds vote is required to go into executive session and that actions discussed there must be voted on publicly when the body returns to the record.

During Q&A, attendees asked whether drafts are exempt and whether deleted emails can be recovered. Norris replied that drafts are not categorically exempt and that deleted emails can often be retrieved and must be disclosed if available unless an exemption applies.

Robin Edwards, deputy corporation counsel, prefaced the presentation and said that the corporation counsel's office is available to answer further questions.

The briefing concluded with five takeaways Norris repeated: broad public rights to records and meetings; narrow limits on executive sessions; majority communications can constitute a meeting; writings about city business are public records; and to default to openness when unsure.