Opinion
No. CV05 400 28 69
June 26, 2006
MEMORANDUM OF DECISION
This is an administrative appeal from a decision of the Freedom of Information Commission (commission) brought pursuant to General Statutes § 4-183. The plaintiff, the department of public safety (department), seeks review of the decision of the commission in the case Docket #FIC 2004-029 on two grounds. First, the department claims that the commission was without jurisdiction or authority to issue a final decision since the matter was no longer contested at the time of the final decision. Second, the department claims that, even if the commission had jurisdiction, the commission failed to apply the proper standard of review. The commission had authority to issue a final decision in this case. The commission did not abuse its discretion by issuing a final decision and the commission applied the proper standard of review.
The administrative record sets forth the following factual background:
On January 5, 2004, a newspaper reporter for the New Haven Register, Michelle Tuccitto (Tuccitto), requested records from the plaintiff, the department of public safety (department), regarding an investigation into a triple homicide; however, Tuccitto was told that disclosure of the records would be prejudicial to the pending prosecution, by compromising the jury selection process and tainting witness recollection, and her request was promptly denied by a letter dated January 6, 2004. (Return of Record [ROR], p. 3, 9, 10.) Following the denial of her request, Tuccitto filed a formal complaint with the defendant commission on January 16, 2004. (ROR, p. 1.) According to the commission's stamp, Tuccitto's complaint was docketed on February 5, 2004. (ROR, p. 3.) On May 11, 2004, a hearing was held before a hearing officer for the commission. (ROR, p. 12.) The hearing officer issued a proposed final decision dated September 7, 2004, adverse to the department; the decision recommended that "[t]he [department] shall forthwith provide the complainants with access to inspect the requested records, other than signed statements of witnesses." (ROR, p. 31.) Following the issuance of the hearing officer's proposed final decision, Tuccitto sent a letter to the commission dated October 9, 2004, stating that "the state police on Oct. 6 provided [her] with copies of the information [she] requested. Therefore, the commission hearing scheduled . . . on [her] complaint and any further action are no longer necessary." (Supp. ROR, Item 1.)
Subsection (a) of General Statutes § 1-210 provides in relevant part: "Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212."
Subsection (b) of General Statutes § 1-210 provides in relevant part, however: "Nothing in the Freedom of Information Act shall be construed to require disclosure of . . . (3) Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of (A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known, (B) signed statements of witnesses, (C) information to be used in a prospective law enforcement action if prejudicial to such action, (D) investigatory techniques not otherwise known to the general public, (E) arrest records of a juvenile, which shall also include any investigatory files, concerning the arrest of such juvenile, compiled for law enforcement purposes, (F) the name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof or (C) uncorroborated allegations subject to destruction pursuant to section 1-216."
At the May 11, 2004 hearing, the respondent was the department, and the complainants were Tuccitto and the New Haven Register. Tuccitto and the New Haven Register were made codefendants in the instant action by the department's appeal filed on December 10, 2004; however, they were defaulted for failing to appear on May 3, 2005, by the court, Levine, J., and are not party to the present motion.
On October 27, 2004, at a regular meeting of the commission a representative of the department was present but Tuccitto and the New Haven Register were not, the commission entertained the objection of the department to the entry of a final decision by the commission. (ROR, p. 36.) Specifically, the department argued that since the parties had resolved the matter, there was no contested case before the commission, and therefore the commission was without jurisdiction or simply unauthorized by the general statutes to enter a final order. (ROR, p. 38-39.) Nevertheless, the presiding officer of the commission stated: "I find that we do have jurisdiction. There was a contested hearing, there was a finding at the contested hearing, and the purpose of the session today is to accept, reject or modify that report. No new evidence comes before us for the purposes of this hearing. It becomes part of the archives here and part of the precedential material that other persons may consider in the future, and so I'm ruling against [the department] on jurisdiction." (ROR, p. 40.) The commission voted to accept the proposed final order of the hearing officer. (ROR, p. 40.) By a letter dated November 3, 2004, the commission sent notice to the parties of the final decision. (ROR, p. 42.)
The department also objected to hearing officer's finding that there was not a sufficient showing to permit the claimed exemption from disclosure. (ROR, p. 43-44.)
"Judicial review of [the commission's] action is governed by the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., and the scope of that review is limited." Dortenzio v. Freedom of Information Commission, 48 Conn.App. 424, 430, 710 A.2d 801 (1998). A court must not "retry a case or substitute its own judgment for that of the [commission.]" (Internal quotation marks omitted.) Board of Education v. Freedom of Information Commission, 208 Conn. 442, 452, 545 A.2d 1064 (1988). "The court's ultimate duty is only to decide whether, in light of the evidence, the [commission] has acted unreasonably, arbitrarily, illegally, or in abuse of [its] discretion." (Internal quotation marks omitted.) Id. Furthermore, "[c]onclusions of law reached by the [commission] must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." New Haven v. Freedom of Information Commission, 205 Conn. 767, 774, 535 A.2d 1297 (1988).
As to the first claim, the department asserts that upon receipt of the Tuccitto letter, the case before the commission was no longer contested, and therefore the commission was without jurisdiction and/or authority to issue a final decision. The department makes two specific arguments in this regard. In response, the commission argues that it had authority to issue a final decision, regardless of the Tuccitto letter, and, moreover, the letter was not properly within the administrative record before the commission.
First, the department argues that the Tuccitto letter evidenced an "agreed settlement" under subsection (c) of § 4-177 of the general statutes. That subsection provides that "[u]nless precluded by law, a contested case may be resolved by stipulation, agreed settlement, or consent order or by default of a party." Similarly, section 1-21j-39 of the regulations of Connecticut state agencies provides that "[u]nless precluded by law, where any matter is uncontested, a complaint, application or petition may be resolved by stipulation, agreed settlement, consent order, dismissal, administrative withdrawal without hearing or default. Upon such disposition a copy of the commission's action shall be served on each party." In support of its argument, however, the department has failed to provide any authority for the proposition that the commission was required to dispose of the case in light of the Tuccitto letter. Moreover, our appellate courts have construed this language as vesting an agency head with the discretion to dispose of a case through stipulation, while conspicuously failing to mention the issue of jurisdiction. See Albert Mendel Son, Inc. v. Krogh, 4 Conn.App. 117, 122, 492 A.2d 536 (1985) (noting "[p]rocedures leading toward . . . disposition [by stipulation] are themselves informal and are developed by the agencies themselves"); see also Connecticut Business Industries Ass'n. v. Commission on Hospitals and Health Care, 214 Conn. 726, 733, 573 A.2d 736 (1990) (finding statute to authorize agency to dispose of matter by stipulation).
Similarly, section 1-21j-39 of the regulations provides that "[u]nless precluded by law, where any matter is uncontested, a complaint, application or petition may be resolved by stipulation, agreed settlement, consent order, dismissal, administrative withdrawal without hearing or default. Upon such disposition a copy of the commission's action shall be served on each party."
Nevertheless, and second, the department argues that the commission could not issue a final decision because the matter before it was no longer a "contested case" as that term is defined under § 4-166(2) of the general statutes. That statute defines a "contested case" as "a proceeding . . . in which the legal rights, duties or privileges of a party are required by state statute or regulation to be determined by an agency." The department asserts that no parties before the commission sought a determination of their legal rights, duties or privileges, and argues that the case was therefore not contested. The department's argument, however, relies on the proposition that without a contested case, the commission is without jurisdiction or authority to issue a final decision. While "contested case" status has been established as a prerequisite for Superior Court subject matter jurisdiction in certain instances; see, e.g., Peters v. Dept. of Social Services, 273 Conn. 434, 442, 870 A.2d 448 (2005) (no right of appeal from administrative decision of the department of social services when as matter was not a contested case); the defendant now asks that this same requirement be placed on proceedings before the commission. There are a number of problems with this proposition, however.
Notably, the plaintiff has not provided this court with any authority indicating that the commission may only issue a final decision in a contested case, as that term is employed in § 4-166(2) of the general statutes.
To begin, it has been stated that "[a]n administrative agency is not bound by the constitutional requirement of a case or controversy that limits the authority of federal courts to rule on moot issues;" 2 Am.Jur.2d 253 Administrative Law, § 286 (2004); therefore, the issue of whether a matter is moot applies differently in the context of an administrative proceeding. To this effect, our Supreme Court has stated: "It is axiomatic that, when events have occurred that preclude a court from granting practical relief to a party through a disposition on the merits, the case is moot The same is ordinarily true of an administrative agency." (Citation omitted; emphasis added.) Commission on Human Rights and Opportunities v. Board of Education, 270 Conn. 665, 684, 855 A.2d 212 (2004).
Moreover, and although not addressed by the parties to the instant case, the holding by our Appellate Court in Horn v. Freedom of information Commission, 16 Conn.App. 49, 547 A.2d 56 (1988), recognizes implicitly that the commission's jurisdiction is not removed upon evidence of a settlement. That is, while the Appellate Court in that case found that the commission abused its discretion by issuing a final decision in light of the settlement agreement between the parties, the holding nevertheless contemplates that the commission had jurisdiction. Moreover, the reasons for the court finding that the commission abused its discretion are not present in the instant case. There, the complainant had filed a complaint with the commission after being denied access to his employment records. Id., 50-51. Concurrently, the complainant entered into a grievance proceeding with his employer, the Department of Correction, which eventually reached a settlement. Id., 51. The settlement of the grievance proceeding was reached prior to the commission's issuance of a final decision. Id. The settlement agreement was made part of the administrative record and the Department of Correction moved that the matter be remanded to the hearing officer for reconsideration of the new evidence. Id. Despite this evidence and the motion for remand, however, the commission issued a final decision ordering the agreement nullified. Id. The court found the order for nullification as unwarranted "interference with [the grievance process]." Id. The court further provided that the "order at issue directly conflicted with, and had the effect of setting aside a voluntary and mutual resolution of a dispute between two parties regarding a sanction to be imposed upon one of the parties. The order did not vindicate any interest of [the complainant]." Id. Importantly, the court noted that "[t]he agreement here did not alter the disclosure requirements of the [Freedom of Information Act] in any way. Rather, it limited the remedial measures not directly related to disclosure of information which are available to the [commission] upon a finding of a violation of the provisions of the [act]. Under these circumstances, the [commission's] interference with the private resolution of a dispute between the parties constituted an abuse of discretion." Id.
Here, the purported settlement agreement did not arise from a grievance process or other comparable origins, and it concerned only the requested disclosures. In addition, the commission's final decision did not affect rights beyond those contemplated by the act, whereas in Horn v. Freedom of Information Commission, supra, 16 Conn.App. 49, the commission's order nullified a grievance settlement. Further still, and again unlike in Horn v. Freedom of Information Commission, supra, there is no evidence that the Tuccitto letter was properly made part of the administrative record nor is there evidence that the department moved for a remand to the hearing officer. For these reasons and those hereinbefore set forth, the commission did not abuse its discretion by issuing a final decision.
Nevertheless, the department claims that the final decision of the commission was made in error. Specifically, the department claims that the commission improperly found that the exemption from disclosure provided for in General Statutes § 1-210(b)(3)(C) did not apply in the present matter. That statute provides: "Nothing in the Freedom of Information Act shall be construed to require disclosure of . . . (3) Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of . . . (C) information to be used in a prospective law enforcement action if prejudicial to such action."
The department bore the "burden of establishing the exemption claimed under General Statutes § 1-210(b)(3)(C)." Chief Police Department v. Freedom of Information Commission, Superior Court, judicial district of New Britain, Docket Nos. CV 02 0514313, CV 02 0514314, CV 02 0514219, CV 02 051422 (October 31, 2002, Levine, J.). Our Appellate Court in Dept. of Public Safety v. Freedom of Information Commission, 51 Conn.App. 100, 720 A.2d 268 (1998), has provided that: "The statute requires an evidentiary showing (1) that the records are to be used in a prospective law enforcement action and (2) that the disclosure of the records would be prejudicial to such action." Id., 105. The court in that case went on to hold that: "In this case, the record discloses, as the commission correctly points out, that the plaintiff's evidentiary claim had its basis in a showing that the completed records had not yet been reviewed by the division of criminal justice and that the office of the state's attorney had not yet closed the case. The statute, however, does not require that an investigation be closed before disclosure is required. Additionally, the statute is not satisfied and, consequently, information is not exempted from disclosure by the mere good faith assertion that the matter to which the information pertains is potentially criminal. As we have stated, there must be an evidentiary showing that the actual information sought is going to be used in a law enforcement action and that the disclosure of that information would be prejudicial to that action." (Emphasis added.) Id.
The department first argues that the standard set forth in Dept. of Public Safety v. Freedom of Information Commission, supra, 51 Conn.App. 100 is "in error and that the Appellate Court rendered the statutory exemption meaningless by holding, in effect, that the precise manner in which information might be prejudicial to a criminal action must be established in a public hearing or must be disclosed." (Plaintiff's Appeal Brief, p. 12.) The department then proceeds to raise a number of practical difficulties with the Appellate Court's standard. As the department must know, however, "[t]his court, of course, is bound by the Appellate Court's reasoning." State v. Northrup, Superior Court, judicial district of New Haven, Docket No. CR03 0023375 (May 18, 2006, Gold, J.); see also Doyle v. Metropolitan Property and Casualty Ins. Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 96 0252381 (February 28, 1997, DiPentima, J.) ( 18 Conn. L. Rptr. 693, 694) (although troubled by Appellate Court's interpretation of a statute, the trial court is bound by its interpretation). Moreover, although the department claims that the "standard is too strict, and is not what the legislature intended," it has failed to provide authority for this proposition or the basis for such a conclusion beyond the assertion itself. (Plaintiff's Appeal Brief, p. 13.)
Judge DiPentima's decision was subsequently appealed for purposes not relevant in the present case.
The department next argues that even if the commission was correct in applying the standard under Dept. of Public Safety v. Freedom of Information Commission, supra, 51 Conn.App. 100, the commission's conclusion was incorrect because it presented more than a mere "good faith assertion" that disclosure would prejudice an ongoing investigation. Although the department does not frame the issue as such, this claim essentially goes to the weight of the evidence before the commission, and invokes the substantial evidence rule. "[The] so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence, does not prevent an administrative agency's finding from being supported by substantial evidence." (Internal quotation marks omitted.) Christopher R. v. Commissioner of Mental Retardation, 277 Conn. 594, 611-12 (2006).
Here, the initial request was for "access to reports on the state police investigation into the homicides of Katherine Kleinkauf, Rachael Crum and Kyle Redway, who were murdered in Guilford on Dec. 27, 2000." (ROR, p. 9.) At the time of the request, the suspect was awaiting trial in New Haven Superior Court. (ROR, p. 9.) In response to the request, however, the department stated that "disclosure would be prejudicial to the pending prosecution of this matter in that among other adverse affects, it would compromise the jury selection process, potentially impact witness recollection and taint the jury pool." (ROR, p. 10.) The department again advanced this argument before the hearing officer, through the testimony of State's Attorney Dearington. (ROR, p. 15, 20-23.) Throughout the remainder the hearing before the hearing officer, the parties discussed the jury selection process and the judicial procedures for the disclosure of information, which included testimony from Attorney Dearington. (ROR, p. 23-29.) The hearing officer, noting that the plaintiff advanced its argument for exemption "[w]ithout reference to any specific records or how they would be used," concluded "that the court has existing safeguards against the juror misconduct such as reading newspaper reports of or discussing, extra-evidential records and that the Commission should not attempt to inject itself into those protective procedures by withholding the requested records from the general public." (ROR, p. 34.) The hearing officer further concluded "that the [department's] speculation concerning the tainting of the jury with extra-evidential investigatory records, most of which apparently will not be used as evidence in the prosecution . . . fails to satisfy the respondent's burden of proof under [General Statutes) § 1-210(b)(3)(C)." (ROR, p. 34.) Because this evidence allows for the possibility of drawing two inconsistent conclusions, and moreover, provides a substantial basis in fact from which the commission could so decide, the department's claim that the decision is not substantiated by the evidence must fail.
The hearing officer's proposed final decision was adopted without exception by the commission. (ROR, p. 42.)
For the reasons provided above, the department's appeal is dismissed.