The Town of East Lyme is petitioning the state Freedom of Information Commission for unprecedented permission to ignore future requests for public documents from one resident the town alleges has abused transparency laws, harassed town employees, and made frivolous requests for years.
The petition is the first of its kind — a test case for a 2018 amendment to Connecticut’s freedom of information laws intended to allow public agencies to petition for relief from “vexatious” requesters.
Testimony for the case concluded on Monday at the FOIC’s offices in Hartford. Now attorneys for both sides will be expected to submit briefs summarizing the case to the commission by November 21.
The town’s petition, filed in March of this year, argues that East Lyme resident David Godbout “has a history of filing abusive complaints against the Town.”
The petition was filed by town attorney Mark S. Zamarka and signed by First Selectman Mark Nickerson and by schools Superintendent Jeffrey Newton.
The petitioners allege that “Godbout is a vexatious, serial FOIA filer, whose requests are routinely unlimited and/or unreasonable in scope or content.”
At Monday’s hearing, the presiding commissioner Christopher Hankins said that Godbout has filed cases with the FOIC against the school board or town on 38 occasions. Godbout won two of those cases and lost one case. The commission voted not to hear two, and Godbout withdrew the other 33, Hankins said.
Godbout, in his responses to the petition, argued that the town is trying to deny his First Amendment rights.
“The petitioners have a long standing resolve to use whatever means are available to quash the respondent’s and others free speech rights … this current petition before the commission is just one of a long series of attacks against the respondent’s and others’ free speech rights that is properly addressed by a special motion to dismiss,” Godbout wrote.
Godbout said in a Sunday interview with CT Examiner that the town and the school board (who together are one party in the case) have consistently violated the state’s transparency laws by declining to produce documents or placing undue terms on his requests.
The town states in their petition that Godbout has filed “hundreds” of requests, often in duplicate.
Godbout said that the town has exaggerated the number of requests he has submitted. He acknowledged that he’s sometimes asked for the same document multiple times, but only when a first request for that document went unanswered, Godbout said.
“Even if it is a new request, it’s a request for the same records,” he said. “So it’s due to their noncompliance.”
The town’s attorney states in the petition that it’s not just the quantity and scope of Godbout’s requests, but his conduct while making the requests that disturbs town staff.
Some of these requests included “multiple verbal requests, and [Godbout] engaged in abusive confrontations with the petitioner’s employees,” the petition reads.
Godbout, in the interview, said that town officials have treated him with similar hostility or abuse.
Among several examples, the town cites one particular incident from December 26, 2018, for which Godbout is facing pending misdemeanor charges of second-degree breach of peace in a case in New London Superior Court.
“Godbout appeared at East Lyme Town Hall and requested a waiver of fees from the First Selectman’s female administrative assistant,” the town’s petition states. “Godbout was told that he would have to speak with the First Selectman, who was not there at that time. Godbout became enraged and acted in a threatening manner and shouted obscenities at the assistant. The assistant hit a panic button to alert the East Lyme Police. (Exhibit Q). Godbout’s disturbance was so loud that Employees in the East Lyme Tax Collector’s office also contacted the police. Godbout was later arrested for disturbing the peace.”
Godbout declined to answer questions about this particular incident during the interview.
“Unfortunately, that issue has not been settled and my attorney has advised me not to speak to that,” he said. “Hopefully, I’m assumed innocent until proven guilty.”
Godbout also declined to testify in the hearing before the FOI Commission, pleading the fifth amendment because of his pending criminal case.
Godbout’s attorney Rob Serafinowicz said that the arrest was a pretext for the town to petition to ignore further FOI requests from Godbout “to get him to be quiet and stop him from questioning them and their policies.”
On other occasions Godbout has clashed with FOI Commission itself. He’s sued the commission at least three times.
In the most recent suit, on September 23, 2019, a New Britain Superior Court judge ruled against Godbout in a case in which he was suing the Freedom of Information Commission, although Godbout could still appeal.
In that case, Godbout was requesting a hearing for what he said was a violation of the FOI law by former Gov. Dannel Malloy’s office. Godbout said in that case that he had requested information that the then-governor’s office had requested about bump stocks and the 2017 mass shooting in Las Vegas, to no response.
Law has yet to be tested
In 2018, then-Gov. Dannel Malloy signed into law an act designed to reform the appeals process for FOI complaints and give public agencies (which include towns) a recourse for relief from abusive requesters. A bipartisan group of legislators, including Rep. Holly Cheeseman (R-East Lyme), sponsored the bill.
East Lyme is the first public agency to seek that relief.
The act states that “a public agency may petition the commission for relief from a requester that the public agency alleges is a vexatious requester… Upon a grant of such petition, the commission may provide appropriate relief commensurate with the vexatious conduct, including, but not limited to, an order that the agency need not comply with future requests from the vexatious requester for a specified period of time, but not to exceed one year.”
Under this law, “vexatious” conduct could be determined by a requester’s scope of requests, the number of requests pending, the language or nature of the requests, the language or nature of other communications from the requester to the agency, or “a pattern of conduct that amounts to an abuse of the right to access information under the Freedom of Information Act or an interference with the operation of the agency.”
During testimony for the bill, representatives of both the FOI Commission and the Connecticut Society of Professional Journalists testified in support of the provision.
Representatives from ACLU Connecticut submitted testimony in opposition to the bill, with their legislative counsel Kaley Lentini testifying that the bill would “stifle government transparency and accountability.”
Godbout himself submitted testimony against the bill twice in February and March 2018. In testimony and in the Sunday interview, Godbout argued broadly that Connecticut’s FOI laws don’t have “teeth” because the commission has not been firm enough in enforcing the law against noncompliant public agencies.
“Compliance with the Act sucks today,” Godbout’s February testimony reads, “and fees allowed now under the law result in over-charges and agencies don’t care because the FOI Commission encourages violations of the Act instead of doing its intended job.”
In his testimony and elsewhere, Godbout has publicly called for eliminating the commission and replacing it with a system in which complaints go directly to superior court and complainants who win their cases are given $1,000 by the public agency.
Clashes with the town and commission
In its petition, East Lyme presented evidence that the petitioners allege demonstrates that Godbout is “a vexatious, serial FOIA filer, whose requests are routinely unlimited and/or unreasonable in scope or content” and that his “voluminous requests, and the number of documents sought therein, disrupts the orderly conduct of the Town’s business.”
The town’s petition also details two other occasions when Godbout was escorted from East Lyme Town Hall by police.
On one occasion in March 2018, the petition claims police were called because Godbout refused to leave the town assessor’s office when asked and that he was making staff in the assessor’s office uncomfortable.
On another occasion two weeks later, police were called after Godbout came into town hall with a camera, asked staff questions on camera, and then refused to turn off the camera when asked, according to the town’s petition.
In his interview, Godbout denied that his behavior was threatening in any way. He said that he asked several times for information because staff ignored him, and he said he brought the video camera to have a record that he didn’t act improperly.
The town’s petition also alleges that Godbout repeatedly visited East Lyme public schools seeking documents. In June and July 2018, he visited East Lyme High School three times asking for information about the school’s policies on transgender students and staff’s use of Facebook.
Later in July 2018, he went to the school district offices on the grounds of Flanders Elementary School to file a request for the superintendent’s expense account and was escorted from the grounds “due to safety concerns,” the petition says. He came to the building again three days later and was again denied access due to safety concerns.
In later efforts by Godbout to obtain these records, the petition alleges that Godbout visited Flanders Elementary School and denied the principal access to the building; that he requested the records during a school board meeting and “became agitated,” that he submitted a request in person to the school board chair’s home address, and then later used a false name “Phillip Miller” to request records. The police were notified on at least two of these occasions.
Godbout said that the town was mischaracterizing some of his actions and specifically denied that he ever blocked the principal from being able to enter the building. He said the schools had delayed or ignored many of his requests. He said he particularly disagreed that he should have to submit identification to inspect records.
“You can look at records anonymously,” Godbout said. “And the purpose of that is to protect you from government retaliation because they’ll try to silence you, especially when it’s politically sensitive records.”
The town submitted into evidence emails between “Phillip Miller” and a member of East Lyme schools staff offering to set up an appointment with Miller to view the records for free. To get copies of the particular documents, the school staff member says in the email that it would cost Miller $122.50.
In a December 2018 email exchange with Godbout, First Selectman Mark Nickerson writes that the town charges 50 cents per page for copies of public records or $20 per day to scan or photograph an unlimited number of pages. This is the maximum charge allowed under state law.
In response to this policy, Godbout had requested data from the town’s copy machine about the cost it takes to produce records. In the interview he said he believed the town was overcharging him.
The town’s petition includes as an example of an “unlimited or reasonable” request one that that Godbout filed in June 2018 to view all public records kept on the personal cell phone records of all members of East Lyme Police Department.
Godbout said in his interview that this request was part of his effort to research how frequently police officers used their cell phones for police department work. He said his understanding was that police officers used their cell phones for police work when they were in a radio deadzone. He said that if the data from his request showed the officers used their cell phones more than the radio, it would be cause for the Board of Finance to defund the radios.
Godbout maintained throughout the interview and in his filings with the commission that all of his requests for information were legal and valid.
“As soon as you ask for records and you get them and you start to expose some corruption, they shut that spigot off,” Godbout said in the interview.
First Selectman Mark Nickerson declined to be interviewed for this story — citing the pending case — except to say that the town would continue to comply with FOI law.
“The town departments acknowledge the responsibility and obligation to answer all legitimate FOI requests to the best of our abilities and resources,” Nickerson wrote in an email. “Nothing has changed nor will ever change with [our] duty to keep government files and meetings open to the public.”