Freedom Of Information Always Under Attack – OP-ED, The Hatford Courant

That Connecticut’s widely heralded Freedom of Information Act is under assault is troubling, but not new.

Since the Newtown tragedy in December 2012, we’ve seen relentless efforts to cut back on public access to police reports and investigatory activities, death certificates and other records that previously were accessible, with limited exception. These stealth attacks on freedom of information are more alarming for their clandestine nature than for the actual changes they will effect in the law. Concealing the processes of governmental policy-making with secret bill drafting strikes at the heart of Connecticut’s strong right-to-know law.

The battle between corrosive secrecy and openness has been going on since the idea of a freedom of information law was introduced in the General Assembly.

As a young lawyer in the early 1970s, I was assigned by my firm to work as a lobbyist at the Connecticut legislature representing trade associations and other clients, including the Connecticut Daily Newspaper Association. The idea of advocating for the press, the lifeblood of American democracy, energized me. Even my discovery that the publishers — who paid our bills — called the editorial content of their papers “the newshole” — somehow subservient to the advertising content — didn’t wholly disillusion me. If a focus on advertising revenue and the bottom line was the cost of ensuring a free, independent press, so be it.Under the leadership of Connecticut daily journalism’s finest — Irving Kravsow of The Courant, Steve Collins of Danbury, Bart Barnes of Bristol, Gene Martin of Waterbury, Judith Brown of New Britain, Dean Avery of New London and Carter White of Meriden — the press was determined to expand the public’s right to know.

A prototype freedom of information law was on the books, but it was weak, allowing public agencies to close their meetings for any reason, or for no reason at all, and to keep many public records confidential. The association’s legislative efforts to strengthen the law were routinely rebuffed. And even if we could have gotten a strong freedom of information bill passed, we had no confidence that Gov. Tom Meskill, no great fan of the press, would sign it.

Then two things happened: First, Watergate, and all of a sudden government secrecy was out and the public’s right to know was in vogue. Second, a dynamic congresswoman, Ella Grasso, was elected governor. Public sentiment toward governmental reform and freedom of information, combined with Gov. Grasso’s support, prompted the legislature to pass a freedom of information law with teeth.

Many had advocated a sunshine law like Florida’s, theoretically absolute but unworkable in the real world. More subtle and perceptive minds took over, realizing that no declaration of absolute rights to open meetings and open files could trump the crafty and creative efforts of lawyers without some special institutional muscle.

A new Freedom of Information Act was born in 1975, and with it, the Freedom of Information Commission. Originally, the commission was advised and represented by an assistant attorney general, but it soon became apparent that allowing the government’s lawyers to act as watchdogs on the government did not cut it. Mitch Pearlman was named the commission’s executive director and general counsel, a job he held for the first quarter-century of its existence.

As chief lobbyist for Connecticut’s press for two decades, I played Madison to Pearlman’s Jefferson. Almost before the ink of the Freedom of Information Act was dry, the forces of secrecy in government regrouped and mobilized. It became clear that many municipal agencies, public employee unions and other constituencies felt more comfortable when secrecy and confidentiality were the rule rather than the exception in government.

Some relentlessly tried to create exceptions to the presumption that all public records and meetings were open and available to the public, bringing appeals and challenges that courts were often only too eager to bless with success. Pearlman and I collaborated yearly at the legislature in attempts to repair the gaping holes that sometimes resulted from such challenges.

The good fight continues as the Freedom of Information Act approaches 40 years old. Let’s keep it strong and keep the public’s business public.

J. Charles Mokriski, a former Hartford lawyer, now practices in New York.