FOIA Complaint Explores Use of Social Media By Public Officials
HARTFORD, CT — The Freedom of Information Commission is close to deciding whether a former top banking official violated Connecticut’s open record laws when he deleted social media posts about the Otoe-Missouria Tribal Nation.
Bruce H. Adams, former chief counsel for the state Department of Banking and, at one time acting commissioner, and now Lt. Gov. Nancy Wyman’s legal counsel, “admittedly deleted social media posts after the Department received a FOIA request for those documents,” Jeffrey J. White, lawyer for the Otoe-Missouria Nation, said in a memo this week.
“The social media posts are public records, and the failure to provide them to the complainant is a direct violation of the FOIA,” White said.
The posts on Twitter and Facebook came at the same time as the Banking Department was feuding with the tribe over its lending practices.
The Attorney General’s Office, which is defending Adams against the allegations, said the complaint should be dismissed because they were his personal views and not the official view of the Banking Department.
“To hold that a public employee’s personal expressions on public issues are public records subject to production and preservation under FOIA would chill First Amendment rights and potentially require the state to monitor state employees social media accounts for compliance with such a ruling,” Assistant Attorney General Matthew Budzik wrote in his memo to the commission.
Budzik argues that “The social media posts at issue here at not public records for purposes of this complaint because the relevant posts were not created by Mr. Adams in his official capacity.”
White said that Adams tried to cover up his “negative social media campaign against certain lawful tribal lending activities” by deleting the posts after receiving the FOIA request.
“Adam’s posts were public records because he was conducting government business by seeking to regulate the tribe’s lending activities and doing so through a public social media campaign,” White wrote in his March 27 memo.
“What makes Adam’s conduct even worse is that he deleted those social media posts after he learned of a FOIA request that sought these very posts and other documents – going so far as to blame the Governor’s General Counsel for ordering him to conduct such unlawful activities (an allegation Karen Buffkin, the Governor’s General Counsel directly denies).”
Budzik argues that Adams would never have taken down the social media posts if the tribe didn’t complain. He says Buffkin called Adams while he was at home on paternity leave and asked him to consider taking down the social media posts following a meeting with Anthony Jannotta, counsel for Great Plains Lending, LLC. Both Buffkin and Adams were unaware of the pending FOIA request made by the tribe to the Department of Banking, according to Budzik.
White contends that Adams knew about the FOIA request when he deleted the posts.
“Indeed, Mr. Adams testified that his personal social media posts would still be posted today, if not for Complainant’s own actions,” Budzik wrote.
The tribe made the FOIA request on Sept. 15, 2015, a day after it hired a forensic expert to find any offending posts on the Internet, Budzik said.
White says Adams edited his Facebook post and comments were deleted on Sept. 18, 2015, three days after the FOIA request was made. Two Twitter posts were deleted after the FOIA request, and 12 Twitter posts responsive to the FOIA request were not produced, according to White’s memo.
Clear Creek Lending and Great Plains Lending, two payday lending companies owned by the Otoe-Missouria Nation, have been under fire by state officials in recent years for allegedly taking advantage of state residents with short-term, high-interest loans. Connecticut limits short-term loan rates to 12 percent, but Great Lakes and Clear Creek charged as much as 449 percent.
The Banking Department tried to impose fines on the Indian tribes for charging the high rates.
But the tribe filed an administrative appeal in Connecticut Superior Court against the Banking Department claiming sovereign immunity.
In December of 2015, a Superior Court judge agreed that an administrative hearing could offend the Otoe-Missouria Tribal Nation’s sovereign immunity.
Adams’ social media posts included swipes at the tribe. “Just imagine the public reaction if CT purposefully set up an Internet payday lender to violate tribal lending laws,” was one of Adams’s posts. While it was eventually deleted, consultants for the tribe saved screenshots of the postings that were introduced as evidence.
During an FOIA hearing last year on the matter, Adams said he couldn’t recall whether he edited or deleted social media posts, claiming he was dealing with the pressures of raising a young family during that time period, the latter portion of 2015.
More briefs are due to the Freedom of Information Commission office by April 7. A hearing officer will issue a proposed final decision, possibly as soon as May.