2004 Ct. Sup. 14054, 38 CLR 10
No. CV03 052 24 43Connecticut Superior Court, Judicial District of New Britain at New Britain
September 20, 2004
MEMORANDUM OF DECISION
OWENS, JUDGE.
This is the second appeal from a final decision of the Freedom of Information Commission (“FOIC”) in the above captioned matter. The first appeal resulted in a stipulated judgment approved by the Court remanding the matter to the FOIC to make findings and conclusions as to whether the Ethics Commission of the Town of New Milford (“Ethics”) set forth reasons for its determination to withhold disclosure of records at issue in the first appeal. The narrow issue to be decided in this appeal is whether there is substantial evidence for the FOIC’s findings that “Ethics” made a good faith determination that the public interest in withholding the chairman’s handwritten notes clearly outweighed the public interest in disclosure. A brief recitation of the facts is in order.
I. FACTS
On August 20, 2001, plaintiff Jay Lewin (Lewin) filed a complaint with the New Milford Ethics Commission “Ethics” alleging that the town’s then Director of Economic Development, David N. Hubbard, Esq. (“Hubbard”) was self-dealing and using inside information for his personal gain. On November 8, 2001, Ethics found probable cause that “Hubbard” “may have violated a provision of the New Milford Code of Ethics.” In a letter dated November 30, 2001, Lewin was informed that the “Hubbard” matter had been sealed and that the matter was concluded on November 19, 2001. (R.O.R., p. 123.) “Hubbard” resigned his position with the town in November 2001.
On November 30, 2001, Lewin sent a letter to “Ethics” Acting Chairman asking for the opportunity to examine the entire record and life in the “Hubbard” matter. (R.O.R., p. 10.) “Ethics” refused this request, including a request to inspect certain writings that were made by its Acting Chairman. The first appeal followed. Lewin filed a Freedom of Information complaint against “Ethics” on December 3, 2001. This letter requested the FOIC to order “Ethics” to make public “the entire record and file in the Hubbard matter, including, but not limited to, any CT Page 14055 notes, memoranda, transcripts or responses to subpoenas.” (R.O.R., p. 4-6.)
The statute that is the subject of this appeal is Conn. Gen. Stat. Section 1-201(b)(1) that provides in pertinent part:
(b) Nothing in the Freedom of Information Act shall be construed to require disclosure of: (1) Preliminary draft or notes provided the public agency had determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure;
On January 18, 2002, after Lewin filed his initial complaint with FOIC, “Ethics” met to discuss what documents to release in response to Lewin’s FOIC complaint. (R.O.R., p. 59.) “Ethics” concluded that any notes taken at the meetings were for the personal use of its members. (R.O.R., p. 60.) Ethics concluded that “the public interest is better served by the withholding of publication of notes taken in executive session and outweighs the public interest of disclosing such material.” (R.O.R., p. 60.) “Ethics” voted unanimously to release the “Record of Proceedings” of the commission. (R.O.R., p. 60.)
At a meeting held on November 16, 2002, the FOIC concluded that the handwritten notes made by the acting chairman were “public record” within the meaning of Conn. Gen. Stat. Section 1-200(5), but were not part of the “records of the investigation” released by “Ethics,” and were permissibly exempt from disclosure pursuant to Conn. Gen. Stat. Section 1-210-(b)(1) as “preliminary drafts or notes.” (R.O.R., p. 169-70.)
On or about December 13, 2002, Lewin appealed this decision. (R.O.R., p. 192.) Before the parties filed their briefs, the appeal was remanded to the FOIC by agreement of the parties. The FOIC reopened the case for the purposes of (1) determining if, on the existing record, there were any reasons indicated by “Ethics” for its determination that the public interest in withholding the acting chairman’s notes clearly outweighed the public interest in disclosure, and (2) determining if those reasons, if any, were not “frivolous or patently unfounded.” (R.O.R., p. 201.) The FOIC reviewed the record and determined that “Ethics” correctly determined that the public interest in withholding the acting chairman’s notes clearly outweighed the public interest in disclosing the notes. (R.O.R., p. 207.) “Ethics” reasoned that “if personal notes taken at probable cause hearings were subject to disclosure, no such notes would be taken and we would not be able to do things very well when it came to a public hearing on a complex ethical violation like this one.” (R.O.R., p. CT Page 14056 207.)
The FOIC concluded that this reason was not “frivolous or patently unfounded.” (R.O.R., p. 207.) Lewin has now appealed this order to the court.
The only documents that remain a subject of the instant appeal are the handwritten notes made by the acting chairman of “Ethics” during probable cause investigatory hearings. The only issue raised by the instant appeal is whether the reason asserted by the acting chairman of Ethics for concluding pursuant to Conn. Gen. Stat. § 1-201(b)(1) that the public interest in withholding those notes clearly outweighed the public interest in disclosing them were made in good faith.
The “Ethics” Commission’s acting chairman made the handwritten notes during the investigation meetings and during a telephone conversation. (R.O.R. pp. 109, 112, 116.) The acting chairman made these notes to prepare himself for a possible public evidentiary hearing. (R.O.R. pp. 133-34.) The notes contain the acting chairman’s summary of witnesses’ testimonies, his impressions of the credibility of witnesses, and his mental theories of the issues in the case. (R.O.R. pp. 134-35.) This court has made an in camera inspection of these notes and finds that the content of the notes are not relevant to the disposition of the issue to be decided in this appeal and are ordered resealed.
II. AGGRIEVEMENT
A party challenging a decision of the FOIC must prove aggrievement to establish the Superior Court’s jurisdiction over the appeal. Zoning Board of Appeal v. Freedom of Information Commission, 198 Conn. 498, 501
(1986). “The fundamental test for determining a grievance encompasses a well settled two-fold determination: first the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest . . . Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.” Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 498, 493 (1978).
The Court finds that Lewin is aggrieved by FOIC’s decision. Lewin filed a complaint with the FOIC and testified at the hearing. He has a specific personal and legal interest in the subject matter of FOIC’s decision and has been affected by the decision because he supplied the information that supported “Ethics” finding of probable cause when investigating “Hubbard” and wishes to see the notes made in connection with this CT Page 14057 hearing.
III. STANDARD OF REVIEW
When reviewing a decision of an administrative agency, the court should not retry the case and should uphold the agency’s decision if it is reasonably supported by the evidence that was heard. Caldor, Inc. v. Mary M. Heslin, Commissioner of Consumer Protection, 215 Conn. 590, 596
(1990). The “substantial evidence” standard requires that the administrative decision be upheld “[I]f the administrative record provides a `substantial basis of fact from which the fact in issue can be reasonably inferred.'” Adriani v. Commission on Human Rights and Opportunities, 200 Conn. 307, 315 (1991). When reviewing an agency decision, the courts should “accord great deference to the construction given [a] statute by the agency charged with its enforcement.” Perkins v. FOI Commission, 228 Conn. 158, 165 (1993).
IV. DISCUSSION
The sole issue before the court is whether Conn. Gen. Stat. § 1-210(b)(1) exempts the requested chairman’s notes from the board disclosure requirements of the FOI Act. Section 1-201(b)(1) provides:
Nothing in the Freedom of Information Act shall be construed to require disclosure of (1) preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure . . .
Our Supreme Court has on three occasions interpreted the phase “preliminary notes or drafts” within the meaning of § 1-210(b)(1) [formerly § 1-19(b)(1)]. Shew v. Freedom of Information Commission, 245 Conn. 149 (1998); Van Norstrand v. Freedom of Information Commission, 211 Conn. 339 (1989); Wilson v. Freedom of Information Commission, 181 Conn. 324 (1980). Each of these decision has approved the notion that § 1-210(b)(1) was intended to encompass records of a “preliminary, deliberative and predecisional” process.
There is no dispute in this case whether the chairman’s notes are “notes” within the meaning of § 1-210(b)(1). However, to prove that notes are exempt under § 1-210(b)(1), the “Ethics” commission was required to show on the record that it had determined that the public interest in withholding the notes clearly outweighed the public interest in disclosing them. This determination was exclusively the province of the CT Page 14058 “Ethics” Commission.
In Van Nostrand, supra, the Supreme Court held:
The FOIC’s conclusion that “the respondent failed to prove that the public interest in withholding such documents clearly outweighs the public interest in disclosure” demonstrates that the FOIC made an independent determination concerning what that was in the public interest based upon Van Norstrand’s testimony. This it cannot do. General Statutes § 1-19(b)(1) [now § 1-210(b)(1)] specifically provides that preliminary drafts or notes are exempt from disclosure “provided the public agency [here Van Norstrand as speaker of the House of Representatives] has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.” (Emphasis in original.)
“Although the statute places the responsibility for making that determination on the public agency involved, the statute’s language strongly suggests that the agency may not abuse its discretion in making the decision to withhold disclosure. The agency must, therefore, indicate the reasons for its determination to withhold disclosure and those reasons must not be frivolous or patently unfounded.” Wilson v. Freedom of Information Commission, supra, 339. Here, Van Norstrand set out for the FOIC the various reasons that he considered in complying with the “public interest” aspect of the statute. Thereafter, the FOIC specifically concluded that “the respondent did seriously and in good faith consider the effect upon disclosure to the public.” Having concluded that there had been a good faith consideration of the effect upon disclosure, and not having found an abuse of discretion, the FOIC had determined all that was required of it by statute to qualify the requested information for the exemption in issue, it having been earlier found that the material constituted a “preliminary draft or note.“
Van Norstrand, supra at 345-46 (emphasis added).
The limited scope of the FOIC’s review of an agency’s balancing CT Page 14059 test under § 1-210(b)(1) is further emphasized by Justice Peters’ dissent in Van Norstrand:
I agree that this provision locates the authority to undertake the statutory balancing test in the public agency, in this case the plaintiff, rather than in the commission. Nonetheless, it seems to me inconsistent with the policy of the act, and the limited place it assigns to exemptions, to permit the public agency to validate the balancing process in accordance with a standard of good faith, rather than in accordance with a more objective cost-benefit analysis. The importation of a good faith standard would give to a public agency a breadth of discretion that is difficult to reconcile with the agency’s burden of establishing its entitlement to a § 1-19(b)(1) exemption. Concomitantly, such a standard would severely limit the commission’s capacity to review the legitimacy of an agency’s exercise of its balancing authority.
Id. (Peters, J., dissenting) at 346.
While the good faith standard established by Van Norstrand may, as Justice Peters says, “severely limit the [FOI] commission’s capacity to review the legitimacy of an agency’s exercise of its balancing authority,” that good faith standard is clearly the law. The question before the FOIC was not whether the “Ethics” commission’s balancing test was objectively reasonable, but only whether it was made in good faith, and therefore not “frivolous or patently unfounded,” using the language of Shew, supra. Consequently it simply doesn’t matter whether the FOIC or the plaintiff believed that the reason articulated by the chairman — that he wouldn’t take notes if he had to disclose them and that he wouldn’t be able to perform his job effectively if he didn’t take notes — was an objectively good reason. The FOIC found no evidence that the articulated reason was made frivolously or in bad faith, and its inquiry, according to Van Norstrand and Shrew, supra, necessarily ended there.
If the Court were to follow the logic of Lewin’s argument every member of every public agency hearing a matter would require that any of it note, scribbles, comments etc. would be subject to scrutiny and review. It would lead, in many instances, for these public servants to become so preoccupied with the quality of their notes that many would sit rigidly and take no notes. It would raise novel issues as to what would happen if the board members destroyed their notes before collection, who would be CT Page 14060 required to collect the notes, and how the notes would be attributable to the specific scrivener. The type of notes that are written by board members could eventually be used in trial proceedings or as evidence in appeals to state agencies. This certainly is not what the legislature contemplated.
As the plaintiff’s claim that the “Ethics” Commission performed the balancing test too late, it first must be observed that the statute contains no specific requirement as to when that balancing test must be performed. It is of course an axiom of statutory construction that statute cannot be construed to contain provisions, exceptions or limitations not clearly stated in the words of the statute. Chairman v. Freedom of Information Commission, 217 Conn. 193, 200 (1991).
V. CONCLUSION
This Court will not substitute its judgment for that of the New Milford “Ethics” Commission as to the balancing of the public interest in the disclosure of notes taken, by its chairman at a probable cause investigation. Our Supreme Court in Van Norstrand and Shew, supra,
expressly disapproves of this practice. Absent any evidence of bad faith or abuse of discretion by the New Milford “Ethics” Commission, there is no requirement for the FOIC to conduct an independent and objective determination of the balance of the public interest in disclosing the chairman’s notes.
For these and all the above-cited reasons, this appeal is dismissed.
Owens, J. CT Page 14061