Opinion
No. CV 07 4015767S
November 10, 2008
MEMORANDUM OF DECISION
I. INTRODUCTION
The captioned matter is an appeal by John Hodge (Hodge), First Selectman of the Town of New Fairfield (town), from a final decision (decision) of the freedom of information commission (commission) in a proceeding that Jody Gemmell (Gemmell) initiated by filing a complaint (Gemmell complaint) with the commission.
II. PROPOSED FINAL DECISION
The commission designated a hearing officer to conduct a hearing on the Gemmell complaint. After taking evidence, the hearing officer submitted to the commission a proposed final decision (proposed decision) [see General Statutes § 4-179 (all further section references are to the General Statutes)] which contained the following findings, each of which was adopted by the commission and is supported by substantial evidence:
Hodge, as first selectman of the town, is a public agency within the meaning of § 1-200(1);
On August 8, 2006, Gemmell presented herself at Hodge's office and gave to a person in attendance (not Hodge) a letter (Gemmell letter), signed by Gemmell, addressed to Hodge's office requesting the opportunity to inspect nine categories of documents (requested records) which are public records within the meaning of §§ 1-200 (5) and 1-210(a);
The person in attendance at Hodge's office told Gemmell that, in order to inspect the requested records, Gemmell would have to complete a form (form);
The form called for Gemmell to provide inter alia, her name, address and telephone number;
The form also contained the statement, "There is a four day time limit in responding to a formal request.";
While not expressly found by the commission, it is inferred from other findings of the commission that it implicitly found that Gemmell gave to the person in attendance at Hodge's office, during her visit on August 8, 2006, a completed form, signed by her, restating the request contained in the Gemmell letter;
On August 12, 2006, Gemmell received a letter from Hodge stating that some of the requested records had been located and that Gemmell should contact Hodge's office, prior to going there, to ensure that the records were available when she arrived;
Gemmell went to Hodge's office on August 17, 2006, to inspect the requested records, when she was told that she could not inspect them at that time because she had not called prior to her arrival and, also, because the requested records were then in the personal possession of Hodge; Gemmell told Hodge's secretary that she would return the next day to inspect the records; and,
On August 18, 2006, Gemmell inspected the requested records.
The proposed decision contains the following conclusions:
Hodge violated § 1-210(a) and § 1-212(a) by requiring Gemmell to complete the form as a condition for her inspection of the requested records, because § 1-212(a) permits a public agency to require the filing of a written request only if someone seeks to obtain copies of public records, and under that statutory provision written requests cannot be required from one who merely seeks to inspect public records;
Hodge violated § 1-210(a) by requiring Gemmell to make an appointment as a condition for her inspection of the requested records, because such a condition diminishes the rights granted by § 1-210(a);
Hodge violated § 1-210(a) by failing to maintain public records, which were in his custody, in an accessible place at his office; and,
Hodge violated § 1-210(a) by unduly delaying Gemmell's access to the requested records.
The proposed decision also contains the following:
"Notwithstanding the multiple violations of the respondent in this case, the Commission declines to issue a civil penalty against him.
* * *
"Henceforth the respondent shall strictly comply with the promptness, accessibility and the inspection provisions of §§ 1-210(a), G.S."
III. FINAL DECISION
The decision is different from the proposed decision in the following respects, only. First, it omits the provision that:
Notwithstanding the multiple violations of the respondent in this case, the Commission declines to issue a civil penalty against him.
Second, it adds provisions which, in relevant part, state:
It is found that the violations . . ., were without reasonable grounds." and,
"The respondent first selectman, as the official directly responsible for the violations described . . . above, shall remit to the Commission a civil penalty in the amount of $100.00.
Hodge paid to the commission the civil penalty of $100, and then he brought this appeal.
IV. DISCUSSION INTRODUCTION
Hodge has briefed several grounds of appeal. The court finds no merit in any of them, except the claims that the commission failed to comply with the provisions of § 1-206(b)(2) and § 4-179(a) in the imposition of a civil penalty and that the commission considered extra-record material in imposing the civil penalty.
PROCEEDINGS BEFORE THE COMMISSION
A copy of the proposed decision was served on Hodge, together with a covering letter (covering letter) dated August 8, 2007. The covering letter advised Hodge that the Commission would meet on August 22, 2007, to address the proposed decision. That letter also advised Hodge that he "will be allowed to offer oral argument concerning this proposed finding and order."
On August 22, 2007, the commission convened to consider this matter. As stated in the covering letter, Hodge was allowed to speak concerning the proposed decision, and his attorney did so.
The transcript of the August 22, 2007 commission meeting is difficult to follow because, other than the chairperson, who is identified by that title, all other speakers are identified only as "A VOICE." Therefore, it has been only with the cooperation of counsel for the commission that the words of the attorney for Hodge can be attributed to that attorney. Unfortunately, the other participants cannot be identified definitively, although the court has made some educated guesses from the circumstances.
After Hodge's attorney had finished his argument, someone identified as "A VOICE," whom the court infers was Gemmell, argued her position to the commission.
Following Gemmell's presentation, the chairperson raised, for the first time, the issue of a civil penalty, as follows: "THE CHAIRPERSON: The only issue I have is whether or not there should be a fine."
Although commission members used the word "fine," they were actually considering a civil penalty under § 1-206(b)(2).
After the chairperson raised the issue of a civil penalty, a colloquy occurred between "A VOICE," whom counsel to the commission has agreed was Hodge's attorney, and the chairperson, as follows:
"A VOICE (Hodge's attorney): May I speak, sir.
"THE CHAIRPERSON: No. "A VOICE (Hodge's attorney): Sorry."
After discussion among commission members and, it appears, Gemmell, another colloquy occurred between "A VOICE," who counsel to the commission has agreed was lodge's attorney, and another `VOICE' which, from the context of the meeting, the court infers was a member of the commission, as follows:
"A VOICE (Presumably a commission member): How much would the fine be?
"A VOICE (Hodge's attorney): May I be heard on that?
"A VOICE (Presumably a commission member): Not yet."
STATUTORY PROVISIONS
Section 4-179a
Section 4-179(a) provides:
When in an agency proceeding, a majority of the members of the agency who are to render the final decision have not heard the matter or read the record, the decision, if adverse to a party, shall not be rendered until a proposed final decision is served upon the parties, and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral argument to the members of the agency who are to render the final decision.
The plaintiff argues that, pursuant to § 4-179(a), before an agency can adopt a final decision which differs from a proposed final decision in a manner which is adverse to a party, that party must be given an opportunity to address the adverse changes. In support of that position the plaintiff relies on New England Rehabilitation Hospital v. Commission on Hospitals Health Care, 42 Conn.Sup. 413, 622 A.2d 1067 (1992). In that case, the plaintiff claimed that the final decision differed from the proposed final decision in ways that were adverse to the plaintiff and that the plaintiff had been denied the opportunity to present a brief and file exceptions to those adverse changes. In dictum Judge Hodgson stated, regarding § 4-179(a):
Whether an additional opportunity for briefs and exceptions is required depends on whether the changes to the original proposed decision are such that they substantially or materially change the proposed decision or introduce new subject matter as to which the applicant had no prior opportunity to comment, such that the purpose of an opportunity to comment, as identified in Tulsa Classroom Teachers Ass'n. v. State Board of Equalization, supra, has been undermined.
The court finds Judge Hodgson's construction of § 4-179(a) to be persuasive. Applying that construction to this case, it is held that the finding of "without reasonable grounds" and the imposition of a civil penalty "substantially (and) materially change(d) the proposed decision (and) introduce(d) new subject matter as to which (Hodge) had no prior opportunity to comment . . ."
Section 1-206(b)(2)
Section 1-206(b)(2) provides, in relevant part:
. . . [u]pon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty . . .
"In excerpted form, § 1-206(b)(2) provides, "upon the finding that a denial . . . was without reasonable grounds and after the . . . official has been given an opportunity to be heard . . . the commission may . . . impose . . . a civil penalty . . ." That provision is construed to mean a civil penalty can only be imposed if, before it is imposed, a respondent has had an opportunity to be heard on the issue of a civil penalty.
The proposed decision recommended neither a finding of without reasonable grounds nor a civil penalty. Further, the notice to Hodge of the commission's meeting at which the proposed decision was to be considered stated that Hodge "will be allowed to offer oral argument concerning the proposed finding and order." (Emphasis added.) Because Hodge was permitted only to address the commission concerning the proposed decision, Hodge was never given the opportunity to address the issues of whether his actions were without reasonable grounds and whether a civil penalty should be imposed. Perhaps more significant is the fact that, on two occasions after a civil penalty was proposed, Hodge's attorney's requested, and was denied, the opportunity to be heard.
It is held that the commission failed to comply with the requirements of § 1-206(b)(2) in both its finding of without reasonable grounds and in its imposition of a civil penalty.
EXTRA-RECORD CONSIDERATIONS
Section 1-206(b)(2) provides that a civil penalty can only be imposed by the commission after a respondent has had the opportunity to be heard at a hearing "conducted in accordance with sections 4-176e to 4-184." Section 4-177c(a) provides, in excerpted form: "In a contested case, each party . . . shall be afforded the opportunity . . . at a hearing . . . to cross-examine other parties . . . and witnesses, and to present evidence and argument on all issues involved."
The court takes judicial notice of the case of Hodge v. Freedom of Information Commission, Superior Court, judicial district of New Britain, Docket No. CV 07 4015768 (November 7, 2008, Levine, J.T.R.). That case relates to a complaint filed with the commission by Lucy DiRocco (DiRocco case) on which the commission determined that Hodge had violated the Freedom of Information Act, § 1-200, et seq., in several respects, including the use of the form. The commission issued its decision in the DiRocco case on August 8, 2007, two weeks before the commission's consideration of the instant case. In their deliberations on the instant case, commission members made direct and indirect references to the DiRocco case, as follows:
"A VOICE: It's a pattern of behavior.
"A VOICE: I would only — I would say no only because this is still the same — we just — we just — we just read him the riot act about the form two weeks ago. (A reference to the commission's decision in the DiRocco case.)
"A VOICE (presumably Gemmell): It's still in use in their office, Counsel.
"A VOICE: The form.
"A VOICE (presumably Gemmell): They're still using that form.
"A VOICE:(presumably Hodge's attorney): I don't believe that's accurate.
"A VOICE: I didn't know we were open to a discussion.
"A VOICE: When did they change it then, Mr. Keating?
"THE CHAIRPERSON: Pardon.
"A VOICE: When did it become a round table discussion?
"THE CHAIRPERSON: Okay.
"A VOICE: Sorry.
"THE CHAIRPERSON: This is the Commission.
"A VOICE: I'm sorry. I apologize.
"THE CHAIRPERSON: Okay. Go ahead, Vinny.
"A VOICE: Just that there's — two weeks ago, I was flabbergasted about this form that they thought it was okay. That it wasn't confusing. That it wasn't — that it wasn't letting people believe that they had four days to respond. I believe wholeheartedly that that's what they think, or that's what they want to imply to the people who are using these forms, but we — we just, I mean, we only came down on them two weeks ago. (Another reference to the commission's decision in the DiRocco case.) And this case was already in the pipeline.
"THE CHAIRPERSON: That's right.
"A VOICE: That's the only reason that I would say that now they know.
"THE CHAIRPERSON: I think it was clear, before two weeks ago, that on inspection there was a duty to allow a person when they come in to inspect the records. And they don't seem to get it.
"A VOICE (Presumably Hodge's attorney): May I speak, sir.
"THE CHAIRPERSON: No.
"A VOICE: Sorry.
"A VOICE (Presumably Gemmell): Well, they're still using it.
As the above transcript excerpt reflects, the commission received unsworn statements from Gemmell about which it did not permit cross-examination by Hodge's attorney. It is also apparent that at least some commission members relied on those statements to conclude that Hodge continued to use the form after the issuance of the DiRocco decision. Finally, it is apparent that at least some commission members found the continued use of the form, after the commission's issuance of the DiRocco decision, was a violation of the Freedom of Information Act without reasonable grounds which justified the imposition of a civil penalty.
It was illogical for any members of the commission to conclude that Hodge's August 2006 actions relative to the Gemmell request were made in defiance of the commission's decision in the DiRocco case, which was issued in August 2007.
The reliance, by at least some members of the commission, on Gemmell's unsworn statements which were not subject to cross-examination as support for the finding of without reasonable grounds and as support of the imposition of a civil penalty constitute a violation of § 1-206(b)(2), which mandates that those actions can only be taken if preceded by a hearing conducted in accordance with §§ 4-176e to 4-184 of the Uniform Administrative Procedure Act. "The commission's consideration of improper evidence that could not be rebutted may have been an important fact in the commission's determination. Reliance on extra-record evidence for important facts demonstrates substantial prejudice." (Internal quotation marks omitted.) Palmisano v. Conservation Commission, 27 Conn.App. 543, 549, 608 A.2d 100 (1992).
The number of commissioners who relied on the unsworn, untested statements of Gemmell cannot be determined because, as indicated above, the transcript identifies commissioners only as "A VOICE."
V. CONCLUSION
It is held that the plaintiff is prejudiced by the final decision.
The appeal is dismissed, except in regard to the finding of without reasonable grounds and the imposition of a civil penalty. As to those matters the appeal is sustained, the finding of without reasonable grounds and the civil penalty are vacated and the commission is ordered to refund to Hodge the civil penalty which he paid.