The office of Attorney General William Tong is asking a Connecticut court to rule for the first time in the 50-year history of the state Freedom of Information Act that all records relating to the “legitimate legislative activities” of the General Assembly are exempt from public disclosure.
The request was made in an administrative appeal filed Friday in Superior Court objecting to the Freedom of Information Commission’s rejection of an assertion by Tong’s office of a constitutional “legislative privilege” on behalf of the Office of Legislative Management.
“The Privilege is designed to ensure legislative independence from external interference by other persons, entities, or branches of government, and is a critical safeguard of the separation of powers,” the attorney general’s office states in the appeal.
Tong said in an interview that the existence of the legislative privilege is well-established, even if it has never been asserted in a case before the FOI Commission or tested in Superior Court.
“We are not breaking new ground,” Tong said. “This is a time-honored and established privilege.”
The FOI commission, as well as legislative leaders who say they were not consulted by Tong’s office about the appeal or its view of legislative privilege, expressed surprise at how a relatively narrow case was producing a legal showdown over the applicability of the FOI to legislators and staff.
At issue is the meaning of the 55-word “speech or debate” clause of the Connecticut Constitution. Like a similar provision in the U.S. Constitution, the clause creates a legislative privilege intended to protect legislators from arrest or other interference by the executive or judicial branches.
It says, “The senators and representatives shall, in all cases of civil process, be privileged from arrest, during any session of the general assembly, and for four days before the commencement and after the termination of any session thereof. And for any speech or debate in either house, they shall not be questioned in any other place.”
The U.S. Supreme Court has defined the core protection of the federal speech or debate clause as providing lawmakers immunity for statements made in legislative debate, plus “protection against civil as well as criminal actions, and against actions brought by private individuals” and “the Executive Branch.”
House Speaker Matt Ritter, D-Hartford, House Minority Leader Vincent J. Candelora, R-North Branford, and Senate Minority Leader Stephen Harding, R-Brookfield, all said they never had used legislative privilege to withhold documents. None said they were consulted by Tong’s office.
“It’s a broad privilege to assert on behalf of all four caucuses without a conversation,” Candelora said. “On a bipartisan basis, I think the House has an understanding of the Freedom of Information Act as being something that brings transparency and disclosure requirements to public officials.”
Senate President Pro Tem Martin M. Looney, D-New Haven, said lawyers for his Senate Democratic majority caucus had been consulted, though they were deferring to Tong’s office on the question of whether to appeal. The legislature, he said, has a legitimate interest in preserving a measure of privacy.
“We have to have people be able to communicate with each other candidly,” Looney said.
The appeal arises from a complaint filed by John DiIorio, a principal in a defunct mortgage company, 1st Alliance Lending. With some success, he has been using the right-to-know law to explore the rationale behind state banking laws that he says were unfairly used by regulators against his company.
His latest complaint turned on the appropriateness of redactions made in 3,846 pages of emails and attachments. In October, the agency heard arguments from an FOI hearing officer who had reviewed the unredacted documents in private and a lawyer from Tong’s office.
Nicholas A. Smarra, the hearing officer, told the commission he concluded that some of the material was exempt from release as preliminary drafts or the product of attorney-client exchanges, but the rest should be public without redactions.
Assistant Attorney Timothy J. Holzman, representing the legislature, said all the redactions should remain under the privilege created by the speech or debate clause of the state Constitution — a claim never made previously to the commission on behalf of the General Assembly.
“We’re not claiming that everything that comes out of the legislature is covered by the privilege,” Holzman told the FOI Commission. “It’s only things within the legitimate sphere of legislative activity, not administrative stuff, not political stuff.”
Colleen Murphy, the executive director and general counsel of the commission, told commissioners that Holzman’s argument “would turn everything that we’ve done heretofore upside down.”
“I find it really disheartening that the legislature comes before us now and makes this type of claim after years and years of an understanding of in what way the Freedom of Information Act applies to legislators, individually, and the legislature as a whole,” Murphy said.
Holzman said the legislature had no right to make public documents protected by the speech or debate privilege, even if the legislature never asserted the privilege previously.
“It’s just not relevant,” Holzman said. “Even if that’s what they wanted, even if they said that with explicit language in FOIA, which they haven’t, it still wouldn’t matter. Because that would just be an example of a statute abrogating a constitutional protection.”
Holzman did not say why the privilege was being asserted now.
Stephen Fuzesi Jr., a former chief counsel of Newsweek appointed to the commission by Gov. Ned Lamont in 2019, pressed him, asking who made the call to assert the broad privilege.
“It has been a fascinating intellectual argument. I’m just trying to figure out, is there some policy motivation behind it?” Fuzesi asked. “Who is the client?”
“My client here is an office of the General Assembly. It’s the Office of Legislative Management, but I work with others within the General Assembly who know about the case,” Holzman said. He did not name names.
In the appeal to the Superior Court, Holzman repeated what he told the commission: “FOIA does not permit the Commission to violate the Connecticut constitution, nor does FOIA waive or abrogate common law privileges and immunities.”
Smarra had argued successfully to the commission in October that Holzman was wrong on case law. The speech or debate clause has been broadly interpreted, but not in cases exempting documents from public-records laws.
“Nothing in the available jurisprudence suggests the ‘legislative privilege’ functions as a constitutional carve out from a public records statute such as the Connecticut FOI Act,’ he said in the recommended decision adopted by the FOI Commission.
Smarra also wrote the separation of powers argument — that the speech or debate clause is intended to prevent intimidation of lawmakers by the other branches of government — is misplaced.
“Specifically, the FOI Act cannot be used by the executive or judicial branches as a means of intimidation, as the Act affords rights solely to the public,” Smarra wrote.
There is a legislative management committee co-chaired by Looney and Ritter, the two top leaders of the Assembly. Ritter was uncertain if it should have been consulted by Tong’s office.
The committee has not met since Jan. 14, 2019.
While Ritter does not agree with the expansive view of legislative privilege asserted by Tong’s office, he said the questions raised about legislative privilege and “legitimate legislative activities” might be in the right venue.
“Maybe the court case is helpful to spell out when it should be applied,” Ritter said. “Maybe it will help provide better clarification of when it can be used.”
Mark Pazniokas is a reporter for the Connecticut Mirror. Copyright 2025 @ CT Mirror (ctmirror.org).