Opinion
No. CV 08 4016200S
July 23, 2008
MEMORANDUM OF DECISION
The plaintiff, deputy corporation counsel for the city of Hartford, has appealed from December 3, 2007 actions of the defendant Freedom of Information Commission (FOIC) taken on behalf of defendant Daniel Goren, a reporter for the Hartford Courant (The Courant), who had sought relief before the FOIC.
The record shows as follows. The Courant sought to obtain access to documents pertinent to the investigation by the Chief State's Attorney of political corruption in the city of Hartford (the city). The Courant issued two letters of March 3 and March 29, 2007 (Return of Record, ROR, pp. 8, 223) to the city requesting (1) subpoenas or requests for information sent to the city by any law enforcement agency (essentially the Chief State's Attorney's office), and (2) all documents turned over to the Chief State's Attorney by the city as a result of that office's request. By letters dated March 14 and April 4, 2007, the plaintiff denied The Courant's requests stating that the city did not have any non-exempt public records that are responsive to its request. (ROR, pp. 9, 224.)
The Courant, on receipt of the plaintiff's letters, filed appeals with the FOIC and the FOIC conducted a hearing with regard to each request. The requests were given separate docket numbers by the FOIC, but the hearing in each file took place at the same date and time. At the hearing, the plaintiff relied upon General Statutes § 1-210(b)(3), the exemption from disclosure under FOIA reserved for law enforcement agencies, stating that providing documents in its possession would prejudice an on-going investigation and disclose uncorroborated allegations. The plaintiff also claimed that while the documents in question were public documents, because the documents in question were originally assembled for access by the State's Attorney, an agency exempt from the Freedom of Information Act (FOIA) under § 1-201, the documents as assembled were exempt from disclosure to The Courant.
The plaintiff testified at the hearing that the sole basis for the denial of The Courant's requests for information was the fact that copies of the documents had been turned over to an investigator for the State's Attorney's Office. It was appropriate to refuse to disclose documents that were in the State's Attorney's office for use in an ongoing investigation. He did acknowledge that the documents constituted public records subject to disclosure under FOIA. (ROR, pp. 59, 61, 64, 76.)
The plaintiff issued a subpoena to an investigator for the State's Attorney's office (ROR, p. 132) for his appearance at the FOIC hearing. The city's corporation counsel also sent a letter to the State's Attorney's office suggesting that the office intervene in the matter and to indicate to the FOIC hearing officer that the disclosure would interfere with the investigation. (ROR, p. 140.) The State's Attorney's office did not write to the FOIC or appear at the hearing to ask that the documents be withheld. It has never objected to the disclosure of the documents.
The investigator may have not received the subpoena. (ROR, p. 106.)
The hearing officer for the FOIC issued a separate proposed decision for each request, but considered the matters to be consolidated. The hearing officer rejected the applicability of the § 1-210 (b)(3) exemption. He ordered the plaintiff to produce the documents associated with both requests, entered a civil penalty against the plaintiff of $200 in each file, and ordered that the plaintiff henceforth comply with the disclosure requirements of FOIA. On December 3, 2007, the FOIC adopted the proposed decisions as final.
The request for the State's Attorney's communication is Docket #FIC2007-165; the request for the plaintiff's reply and associated documents is Docket #FIC2007-226.
The plaintiff then appealed to this court. In response to the plaintiff's motion for a stay, the court ordered the plaintiff to produce the request for records made by the State's Attorney's office dated February 27, 2007 and the city's cover letter response of March 14, 2007. The stay was granted as to the civil penalties in each file. After the two letters were made public, the city subsequently produced the actual documents listed in its March 14, 2007 letter replying to the State's Attorney's office, when The Courant in a new request asked for the listed documents.
Due to the orders of the FOIC, aggrievement is found. State Library v. FOIC, 240 Conn. 824, 832, 694 A.2d 1235 (1997).
The Courant has moved to dismiss the appeal from Docket #FIC-2007-226 on the jurisdictional ground that the plaintiff, in fact, did not appeal at all from that docket number (and therefore is beyond the forty-five day appeal deadline of § 4-183(a)). It points to paragraph 18 of the plaintiff's complaint that states that the final decision was mailed to the parties and attached to the complaint the final decision in #2007-165. On the other hand, the complaint does indicate in paragraphs 10 and 11 that both appeals were brought to the FOIC and the FOIC consolidated the appeals for a hearing. Moreover the FOIC granted The Courant's motion to consolidate. (ROR, pp. 30, 217.) The court finds that the allegations of the complaint, read broadly, are sufficient to indicate that the administrative appeal covered both final decisions of the FOIC. Millward Brown, Inc. v. Commissioner of Revenue Services, 73 Conn.App. 757, 765, 811 A.2d 717 (2002) (presumption of jurisdiction under § 4-183).
The Courant also moves that the court find that since the documents were produced after the stay hearing, the appeal is moot except for the civil penalty assessed against the plaintiff. The court holds otherwise, because the plaintiff was ordered "henceforth" to comply with FOIA. See Director, Retirement Benefits Division v. FOIC, 256 Conn. 764, 769, n. 9, 775 A.2d 981 (2001); Chief of Police v. FOIC, 252 Conn. 377, 384, 746 A.2d 1264 (2000); Gifford v. FOIC, 227 Conn. 641, 648-49, 631 A.2d 252 (1993).
Turning to the merits of the appeal, the court reviews the plaintiff's claims under the standard set by our appellate courts: "We note initially that our review of an administrative agency's action is controlled by the Uniform Administrative Procedure Act . . . The scope of review is very restricted . . . [T]he trial court may [not] retry the case or substitute its judgment for that of the commission. Even as to questions of law, the court's ultimate duty is to decide only whether, in light of the evidence, the agency acted unreasonably, arbitrarily, illegally or in abuse of its discretion. Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and reasonably and logically follow from those facts . . . [T]he applicable standard of review is whether the commission abused its discretion . . . [T]he burden of proving the applicability of an exception [to disclose under FOIA] rests upon the party claiming it." (Citations omitted; internal quotation marks omitted.) Lewin v. FOIC, 91 Conn.App. 521, 526 (2005).
The court first discusses what was a basic claim of the plaintiff before the FOIC that the documents were exempt as records of a law enforcement agency that would prejudice a pending investigation. § 1-210(b)(3)(C). In this court, the plaintiff does not claim this exemption regarding the document which the State's Attorney's staff sent to the city (that formed the basis of Docket #FIC 2007-165). (Plaintiff's Brief at page 7, note 9.)
To the extent that the plaintiff raises this argument as to the letter from the city and the underlying documents (the Docket #FIC 2007-226 case), it lacks validity for three reasons. First, neither the plaintiff nor the city is a law enforcement agency. Maher v. FOIC, 192 Conn. 310, 316-17, 472 A.2d 321 (1984). Secondly, the plaintiff made an inadequate showing that a prospective law enforcement action would be compromised. In Hartford v. FOIC, 201 Conn. 421, 434, 581 A.2d 49 (1986), our Supreme Court emphasized that it is not enough for a respondent to make a "broad, conclusory" argument that disclosing records "might" have negative effects on police operations. See also Dept. of Public Safety v. FOIC, 51 Conn.App. 100, 105, 720 A.2d 268 (1998): "[T]here 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." Finally, as indicated above, the State's Attorney, while under notice of the FOIC hearing, did not move to intervene. It has never posed an objection to disclosure of the documents.
The plaintiff in this appeal primarily relies upon an argument said to arise, as follows, from § 1-201: The State's Attorney is not deemed a public agency under FOIA; The Courant's requests were for public documents compiled for the purpose of complying with the directives of the staff of the State's Attorney; therefore, had the plaintiff disclosed the documents sought, he would have undercut the statutory exemption from FOIA given to the State's Attorney.
The answer to this argument is that "public records" are defined in FOIA as "any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency § 1-200(5), Merely because the documents that The Courant requested were supplied to the State's Attorney in a particular format, did not relieve the plaintiff from producing these same documents that were prepared and retained in the city's files. The basis of freedom of information laws is that the public has the right to examine any public record created and retained by a public agency. See, e.g., Kissinger v. Reporters Comm. For Freedom of the Press, 445 U.S. 136, 152, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980).
The case of Board of Education v. FOIC, Superior Court, judicial district of Hartford, Docket No. CV 95 0555646 (January 9, 1997, Maloney, J.) is inapplicable. There the city pointed to a specific exception to the requested disclosure of the names of high school students and argued that disclosure of parents names would inevitably lead to the names of the students. Here, by contrast, § 1-201 allows one agency to choose not to disclose public documents; it does not insulate these documents, whether "compiled" or not, from public disclosure by another agency.
The final issue raised by the plaintiff is the $200 penalty assessed in each FOIC docket. FOIA allows for a civil penalty in the discretion of the FOIC when a denial for access to public records was without reasonable grounds. The plaintiff argues that he had a plausible legal argument for refusing the records and that prior penalties have been levied by the FOIC only in the case of blatant conduct by public officials.
On the other hand, "[i]f the penalty meted out is within the limits prescribed by law, the matter lies within the exercise of the [agency's] discretion and cannot be successfully challenged unless the discretion has been abused." Pet v. Dept. of Public Health, 228 Conn. 651, 677, 638 A.2d 6 (1994), citing Gibson v. Connecticut Medical Examining Board, 141 Conn. 218, 230, 104 A.2d 890 (1954). "The duties of an administrative agency . . . necessarily include the right to exercise discretion, and the essence of such discretionary power is that the agency or commission may choose which of several permissible course will be followed. In exercising that discretion, the factors to be taken into consideration are not mechanical or self defining standards, and, thus wide areas of judgment are implied. Such discretion is the `lifeblood' of the administrative process." (Citations omitted; internal quotation marks omitted). Riley v. State Employees Retirement Commission, 178 Conn. 438, 442, 423 A.2d 87 (1979).
The record of the hearing before the FOIC showed that the plaintiff was an attorney experienced in responding to FOIA requests. (ROR, pp. 58, 74.) He put on no evidence on the claim that the directive from the State's Attorney to the city constituted an exempt document (case #2007-165). Further, it was within the discretion of the FOIC to decide that refusing to provide the city's reply and the associated documents (case #2007-226), in light of the claimed reasons, justified the assessed civil penalty. (ROR, p. 196.) The fact that the civil penalties in this file do not fully correlate to assessed penalties in other FOIC cases is not a proper ground to overturn the penalty. See Henrickson v. Dept. of Public Health, Superior Court, judicial district of New Britain, Docket No. CV 05 4005077 (May 16, 2007, Tanzer, J.).
The initial request for documents was in March 2007, while the final decision was rendered in December 2007. The city's position led to a delay in disclosure that may well have influenced the FOIC in assessing a civil penalty. (Argument of counsel, response of hearing officer, commissioner, ROR, p. 202).
For the foregoing reasons, the plaintiff's appeal is dismissed, with no costs awarded to either party.