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Information Requests Under FOI v. MERA: How to Comply

By: Christopher R. Henderson, Esq.

From time to time, we receive emails from clients seeking advice on whether an information request should be classified as a request under the Municipal Employees Relations Act (MERA) or the Connecticut Freedom of Information Act (FOIA). It is crucial to properly distinguish between the two laws as conflating them or treating a request under one when it should be under the other could result in avoidable liability and costs.

Connecticut is one of the states in the United States that has a comprehensive legal framework governing the relationship between the government and its employees, as well as the public’s access to government information. Two important laws in this framework are the Connecticut Municipal Employees Relations Act (MERA) and the Connecticut Freedom of Information Act (FOIA). While both laws are crucial to ensuring transparency and accountability in government, they differ in their scope and purpose.

The Connecticut Municipal Employees Relations Act (MERA) was established in 1965, and its primary objective is to facilitate constructive relationships between public employers and their employees. MERA applies exclusively to municipal employees, including police officers, firefighters, and other public employees, and guarantees their right to unionize, engage in collective bargaining, and partake in other concerted activities for their mutual protection. Under MERA, public employees have the right to request information from their employer that is relevant and necessary to their union’s collective bargaining efforts. This information is typically related to issues such as employee wages, benefits, and working conditions.

On the other hand, the Connecticut Freedom of Information Act (FOIA), which came into effect in 1975, has the primary objective of ensuring the public’s access to government information. FOIA applies to all public agencies and officials in Connecticut, including state agencies, municipalities, and boards of education. FOIA guarantees the public’s right to access and review all records and documents created or maintained by a public agency with certain exemptions.

In addition to the difference in purpose, the process for making a request also differs between the two laws. Under MERA, requests are typically made by a union representative on behalf of its members. FOIA requests, on the other hand, can be made by any member of the public, including individuals, organizations, and businesses. FOIA requests must be made in writing and directed to the appropriate public agency, and agencies have a specific timeframe within which they must respond to the request.

For municipal labor practitioners, the difference between the laws is stark. Records that may be exempt under FOI may not be exempt under MERA. C.G.S. §1-210(b)(9) exempts “records, reports and statements of strategy or negotiations with respect to collective bargaining.” The State Board of Labor Relations however has said “information…may be subject to disclosure to the Union whether or not it is subject to disclosure to the public under the Freedom of Information Act.” Bristol Housing Authority, Decision No. 3021 (1992). In another case, the SBLR stated quite clearly that, “…any claimed exemptions to disclosure contained in the Freedom of Information Act are irrelevant” for the purposes of responding to information requests under MERA. Further, the scope of the information that can be disclosed may be broader than that under FOI as stated in City of Hartford, Decision No. 2784 (1990), “an employer has an obligation to provide the union with copies of any and all reports, statements, internal memos, or other documents to be used in a pending disciplinary hearing.” 

Lastly, under FOI there are a plethora of exemptions a government entity can argue to preclude disclosure whereas under MERA, the government-employer has essentially two defenses – relevance and privacy/confidentiality. Relevance is broadly construed where the union need only to show the information requested appears reasonably necessary to the policing or administration of the contract. If the information sought is relevant yet the employer claims a privacy or confidentiality defense, the SBLR will weigh the competing interests and even if the employer’s confidentiality interests outweigh the unions need for the information, the employer is still obligated to bargain over a solution that meets the needs of both the employer and the union (e.g., redacting certain information). 

While the scope and purpose of the two laws differ in many respects, both laws are crucial to ensuring transparency and accountability in government. As the current Chairman of the Freedom of Information Commission, Owen P. Egan, has said with respect to FOI which applies equally to MERA, “…yes, the slant is to open government, but we have to be fair and act within the confines of the law.” 

If you have any questions or comments about complying with an information request under MERA or FOI, please reach out to a Berchem Moses PC attorney.