Disclosure of smokefree policy complainant as an intimidation tactic – 11/5/10

Q: A local health department faces litigation seeking to compel the health department to publicly disclose the identity of an individual who filed a complaint that a bar had violated the state's smoke-free law by permitting cigarette smoking in the establishment. The bar owner alleges that the health department violated Freedom of Information Act (FOIA) requirements by refusing to disclose the complainant's name and telephone number.
 
The bar owner's action may reflect a tactic intended to chill the willingness of citizens to file complaints about violations of the state's smoke-free law. Michigan is interested in learning whether there have been similar situations/tactics used in other smoke-free states. If so, we would welcome information about what took place and how the issue was resolved.

A:

1. Arkansas: Arkansas has had something similar. We had a complainant ostracized and actually threatened by people who frequented the bar which allowed smoking. We have since changed our complaint form so that an anonymous complaint can be made – and still instigate an investigation. Arkansas has a ‘complaint-driven’ law.
    
   Recommendation:  provide the option to make the complaint anonymous, yet still require the investigation.
    
2. Colorado: Sorry to report that Colorado is not able to help in this situation. Our Clean Indoor Air Act designates enforcement authority to local law enforcement. Most police jurisdictions do require that the complainant identify him or herself and identify the person who was smoking. Most people who call to report a violation have not been willing to be identified, in most situations it is out of fear of losing their job.
    
3. Illinois: The bar owner is totally incorrect. The Freedom of Information Act actually protects the person reporting the violation. If they read closer in the law it should state that the complainant information can’t be revealed when the reported violator is under investigation.
    
   Below is text from the Illinois Freedom of Information Act under “Exemptions.”  Michigan’s Act may differ.
    
   (5 ILCS 140/7) (from Ch. 116, par. 207)
       (Text of Section from P.A. 96 8209)
   ---------------------------------
    
   Sec. 7. Exemptions.
   (1) When a request is made to inspect or copy a public record that contains information that is exempt from disclosure under this Section, but also contains information that is not exempt from disclosure, the public body may elect to redact the information that is exempt. The public body shall make the remaining information available for inspection and copying. Subject to this requirement, the following shall be exempt from inspection and copying:
   
   (a) Information specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.
   
   (b) Private information, unless disclosure is required by another provision of this Act, a State or federal law or a court order.
    
   (b 5) Files, documents, and other data or databases maintained by one or more law enforcement agencies and specifically designed to provide information to one or more law enforcement agencies regarding the physical or mental status of one or more individual subjects.
    
   (c) Personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information. "Unwarranted invasion of personal privacy" means the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject's right to privacy outweighs any legitimate public interest in obtaining the information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.
    
   (d) Records in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would:
    
   1. interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient of the request;
   2. interfere with active administrative enforcement proceedings conducted by the public body that is the recipient of the request;
   3. create a substantial likelihood that a person will be deprived of a fair trial or an impartial hearing;
       
   ---------------------------------
    
4. Iowa: Soon after Iowa's smoke-free law went into effect on July 1, 2008, proprietors (liquor licensees, generally) wanted to know the identity of the complainant. In processing these FOIA requests, our attorney advised us that Iowa's confidential records law could protect the identity of the complainant.
    
   Specifically, Iowa Code Section 22.7(18) states that "communications [i.e., smoke-free law complaints]  not required by law...that are made to a government body [i.e., Iowa Dept. of Public Health] ... by identified persons outside of government [i.e., a citizen complainant], to the extent that the government body receiving those communications from such persons ... could reasonably believe that those persons would be discouraged from making them to that government body if they were available for general public examination" shall be kept confidential. In other words, the Iowa Dept. of Public Health reasonably believes that persons would be discouraged from providing information if the information were available for public examination. Therefore, the Iowa Department of Public Health keeps confidential the complainant's name and contact information and only releases the date, time, specific location and immediate facts and circumstances surrounding the occurrence contained in the complaint to the extent that it does not directly or indirectly indicate the person making the complaint.
    
   In Iowa the penalty process is not based on citizen complaint observations. Therefore, court appearances are not required of citizen complainants, and nor are their individual complaints used as evidence in cases against violating businesses. Rather, Iowa's enforcement and penalty process is based on official inspector and peace officer observations of noncompliance. Accordingly, an inspector or peace officer may be called to testify as a witness. This is an important point because Iowa only uses citizen complaints to begin the educational process with businesses to assist them in complying with the smoke-free law.
    
   We resolved this issue by first and foremost knowing our confidential records law, and then by being transparent with our process and responsive to their information requests. For example, staff advise businesses making FOIA requests up front that Iowa Code may protect the identity of the complainant(s). We then quickly provide redacted copies of the respective complaint(s). We advise businesses that citizen complaints do not lead to penalties, and "they have nothing to worry about if their premises is in compliance with the law."  We also advise that their premises could be subject to an inspection to further evaluate their compliance with the smoke-free law, perhaps giving them a "heads-up."
    
   Iowa Code 22.7(18) can be found here.
    
   Depending on your state’s confidential records law, offering the complaint options contained in this link may prevent future litigation: Iowa Smoke-Free Law: Options for submitting a Complaint.
    
5. Rhode Island: Rhode Island does not disclose the name and/or contact information of someone filing a smoking complaint, however, in the case that the situation escalates to court, the person's information would become public.
    
   Section 5.1 of the RI Smoke Free Public Places & Workplaces law states:

   Nonretaliation. No person or employer shall discharge, refuse to hire or in any manner retaliate against an employee, applicant for employment or customer because that employee, applicant or customer exercises any rights afforded by the Act or these Regulations, or reports or attempts to prosecute a violation of the Act or these Regulations.

   According to the FOIA reference guide, “The FOIA applies to records of the Executive Branch of the federal government and does not provide access to records held by Congress, the federal courts, advisory offices of the President, state or local government agencies, or by private businesses or individuals. All states have their own statutes governing public access to state and local government records; state agencies should be consulted for further information about obtaining access to their records.”
    
6. Tennessee: In Tennessee, if someone complains about violations and states they want to remain anonymous, we have to tell them that the complaint becomes a matter of public record. We at the health department might not disclose who made the complaint, but the identity still could be found due to the public record rules and regulations.
    
7. West Virginia: As far as I know, there are no situations similar to this here in WV…

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