MICHAEL ARONOW v. FREEDOM OF INFORMATION COMMISSION
AC 41297
Appellate Court of Connecticut
May 14, 2019
Alvord, Sheldon and Bishop, Js.
Argued February 6—officially released May 14, 2019
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Syllabus
The plaintiff appealed to this court from the judgment of the trial court dismissing his appeal from the final decision of the defendant Freedom of Information Commission. In connection with a whistleblower retaliation complaint he had filed against his former employer, a health center, the plaintiff had requested certain records from the health center under the Freedom of Information Act (act) (
- The plaintiff could not prevail on his claim that the trial court improperly concluded that he was not aggrieved by the commission‘s decision not to impose a civil penalty against the health center; although the plaintiff acknowledged that this court was bound by Burton v. Freedom of Information Commission (161 Conn. App. 654), which addressed the precise issue raised in this case and held that the plaintiff in that case was neither classically nor statutorily aggrieved by the commission‘s decision not to impose a civil penalty because the decision did not violate a legal interest of the plaintiff and there was no statutory authority that provided the plaintiff with standing to appeal to the trial court from the commission‘s failure to impose such a penalty, the plaintiff here attempted to distinguish Burton, but his claim was speculativе and lacked an evidentiary foundation, and, therefore, the trial court did not err in granting the commission‘s motion to dismiss the plaintiff‘s civil penalty claim for lack of standing.
- The trial court properly dismissed the plaintiff‘s claim that his 2014 complaint was improperly dismissed on the ground that he was not aggrieved because the issues raised in that complaint were addressed in his 2015 complaint, the underlying matter in which he ultimately prevailed; contrary to the plaintiff‘s assertion, the record indicated that the commission did take the relevant facts of his 2014 complaint into consideration when making its decision that the health center had violated the act, as the commission not only found that the plaintiff‘s requests for records were identical, but it explicitly took administrative notice of the findings of fact in the 2014 complaint that were relevant to its determination as to whether the health center had promptly compliеd, and, therefore, the plaintiff did not demonstrate how he was aggrieved.
- The trial court erred in concluding that there was substantial evidence in the record to support the commission‘s finding that the plaintiff had narrowed the scope of his request under the act with respect to paragraph eleven of his complaint; there was no basis for the commission‘s order narrowing the plaintiff‘s request for records as described in the commission‘s final decision, which was inconsistent with the record and contravened the general policy of openness expressed within the act, as the record revealed that the plaintiff had requested the health center to expedite the most time sensitive portion of his request without excluding the remainder of the records requested.
Procedural History
Appeal from the decision of the defendant, brought to the Superior Court in the judicial district of New Britain, where the court, Huddleston, J., granted in part the defendant‘s motion to dismiss; thereafter, the court, Young, J., dismissed the plaintiff‘s appeal, from which the plaintiff appealed to this court. Dismissed in part; reversed in part; judgment directed.
Kathleen K. Ross, commission counsel, with whom, on the brief, was Colleen M. Murphy, general counsel, for the appellee (defendant).
Opinion
BISHOP, J. The self-represented plaintiff, Michael Aronow,1 appeals from the dismissal by the trial court of his appeal from the final decision of the defendant Freedom of Information Commission (commission). Although, after a hearing, the commission concluded that the University of Connecticut
We agree with the court‘s conclusions regarding the plaintiff‘s first and second claims, and, accordingly, affirm the judgment as to those claims. We conclude, however, that the trial court erred in concluding that there was substantial evidence to support the commission‘s finding that the plaintiff had narrowed the scope of his original FOIA request in regard to paragraph eleven of the commission‘s final decision.3 Accordingly, the judgment is reversed in part, and the case is remanded to the trial court with direction to remand to the commission with direction to order that the health center comply expeditiously with the plaintiff‘s original request, as narrowed only by paragraph ten of the commission‘s final decision.
The following facts and procedural history are relevant to our resolution of this appeal. In his brief, the plaintiff alleges that he “is an orthopaedic surgeon who formerly worked for [the health center], against whom he filed a whistleblower retaliation complaint before the Commission on Human Rights and Opportunities’ Office of Public Hearings on November 14, 2012 (OPH/WBR No. 2012-208), which [has been] in the damages phase” since he received a favorable decision on liability. Additionally, on March 31, 2012, the plaintiff separated from the health center under disputed circumstances. In his whistleblower complaint against the health center pursuant to
On August 19, 2013, the plaintiff e-mailed a FOIA request to Scott Wetstone, a medical doctor employed by the health center who acted as its freedom of information (FOI) officer. The request was for production of all e-mails sent or received by Jay R. Lieberman, a medical doctor formerly employed by the health center, from July 1, 2009, to the date of the request; all Microsoft Word and PDF documents created or modified on Dr. Lieberman‘s health center computer from July 1, 2010, to the date of the request; and a list of all e-mails and documents that fell within this request but were exempt from disclosure, and reasons why they were exempt. On December 13, 2013, Dr. Wetstоne e-mailed the plaintiff to notify him that the previous FOIA requests6 that the plaintiff had made to the health center were “essentially completed” and that he would begin working on the plaintiff‘s August 19, 2013 request. Dr. Wetstone also suggested in this e-mail that, in light of the number and the nature of the documents he had requested and the fact that the plaintiff had already submitted an extensive discovery request to the health center in a separate matter, the plaintiff should narrow the scope of his request. The plaintiff subsequently agreed to exclude a number of categories of records from the scope of his request.
On March 17, 2014, the plaintiff filed a complaint with the commission; see Aronow v. University of Connecticut Health Center, Freedom of Information Commission, Docket No. FIC 2014-156 (February 4, 2015) (FIC 2014-156); alleging that he had not received the documents requested, and that there had been no activity regarding his request since December, 2013. On June 30, 2014, while that matter was pending, the plaintiff sent an e-mail to Dr. Wetstone requesting that he expedite the release of certain requested documents that were relevant to the plaintiff‘s pending Health Center Appeals Committee
On December 16, 2014, over one year after acknowledging that he would begin working on the plaintiff‘s August 19, 2013 request, and several months after the plaintiff had filed his complaint in FIC 2014-156, Dr. Wetstone e-mailed the plaintiff the following message: “Per our discussion this morning, you have my personal commitment to get . . . the documents [at issue in FIC 2014-156] no later than the end of March 2015. . . . Later today, I will attempt to find the files that I initially put in the drop box last summer. I can‘t find them immediately and need to tend to other things right now.”
On February 4, 2015, the commission adopted a final decision dismissing the plaintiff‘s FIC 2014-156 complaint for lack of jurisdiction on the ground that the complaint had not been timely filed pursuant to
Subsequently, on March 17, 2015, the plaintiff filed an appeal from the commission‘s decision in FIC 2014-156 to the Superior Court. On June 18, 2015, the court dismissed that appeal as moot on the ground that the plaintiff‘s hearing in FIC 2015-127, in which he sought the same records, was pending before the commission. A hearing on FIC 2015-127 was held before a hearing officer on July 1, 2015. During the hearing, Dr. Wetstone testified regarding the factors that were crucial for determining how long it would take to comply with the plaintiff‘s particular FOIA request. Dr. Wetstone indicated that, at the time of the hearing, the health center had ten active requests from the plaintiff, nine of which would take a few months to resolve. He indicated, as well, that the plaintiff‘s February 4, 2015 request was “by far the largest” request he had encountered
On October 1, 2015, the hearing officer issued a proposed final decision. On October 8, 2015, the health center provided the plaintiff with some of the docu- ments he had requested together with a privilege log claiming exemptions as to certain other documents.
On October 28, 2015, the commission adopted the proposed final decision of the hearing officer. The commission found that the health center had violated
On December 9, 2015, the plaintiff appealed from the commission‘s decision to the Superior Court, claiming that the commission (1) improperly declined to impose civil penalties on the health center, despite the length of the delay and the fact that the commission had found the health center to have violated the promptness requirement of the act in relation to other requests made by the plaintiff; (2) improperly suggested that the plaintiff refrain from making further requests until the commission‘s order in FIC 2015-127 had been satisfied; (3) improperly allowed the health center nine additional months to comply with the plaintiff‘s request; (4) improperly found that the plaintiff had narrowed the scope of his request, as stated in paragraph eleven of its decision; (5) erred when it did not provide any mechanism for an in camera review of documents for which the health center claimed exemptions on October 8, 2015, after the proposed decision had been released; and (6) erred when it dismissed his FIC 2014-156 com- plaint for lack of jurisdiction.
On October 25, 2016, the commission filed a motion to dismiss the plaintiff‘s appeal, contending that the plaintiff was not aggrieved by the commission‘s decision in his favor. The commission also moved to strike certain claims for relief if any portion of the appeal survived the motion to dismiss. On May 8, 2017, the court granted the commission‘s motion to dismiss as to the plaintiff‘s first and second claims, but denied the motion as to the plaintiff‘s third and fourth claims. Additionally, the court ordered the parties to brief whether it lacked jurisdiction to consider the plaintiff‘s fifth claim, and declined to review the commission‘s inadequately briefed motion to strike as to the plaintiff‘s sixth claim. In this decision, the court made clear that the commission‘s October 28, 2015 order was not stayed pending the disposition of the appeal. Following this decision, the plaintiff alleged that the health center notified him that it would begin complying with his request, as narrowed pursuant to the commission‘s order. The plaintiff also alleged that in June, 2017, the health center had sent him two compact discs (CDs) containing requested documents in partial compliance with the order.12
On January 5, 2018, after further considering the plaintiff‘s third, fourth, fifth, and sixth claims, the court dismissed the plaintiff‘s appeal. Specifically, the court concluded that the commission had not abused its discretion in giving the health center nine months to comply with the plaintiff‘s records request because there was substantial evidence before the commission to support the reasonableness of its decision to order a rolling out of information over a nine month period of time. The court found, as well, that the plaintiff had agreed to narrow his request, as described in paragraph eleven of the commission‘s decision. The court concluded, as well, that because the commission did not have the opportunity to consider whether there should have been an in camera review of the allegedly exempt documents, the plaintiff had not exhausted his administrative remedies, and, thus, that claim was not ripe for the court‘s consideration.
Finally, the court addressed the plaintiff‘s claim regarding his FIC 2014-156 complaint, which involved his earlier records request to the health center. The
I
We first address the plaintiff‘s claim that the court erred in concluding that he was not aggrieved by the commission‘s decision not to impose a civil penalty against the health center. Specifically, the plaintiff claims that the court‘s granting of the commission‘s motion to dismiss this claim for lack of standing was improper because he was aggrieved by the health center‘s noncompliance with his FOIA requests and, therefore, had a direct interest in his attempt to have the commission impose a civil penalty on the health center. We are not persuaded.
We begin by setting forth the legal principles regarding motions to dismiss and standing. Because this clаim “arises from a motion to dismiss, the question is whether the pleadings, if presumed true and construed in favor of the plaintiff, set forth sufficient facts to establish that the plaintiff had standing. . . . That question is one of law, over which our review is plenary.” (Citation omitted.) Burton v. Freedom of Information Commission, 161 Conn. App. 654, 658, 129 A.3d 721 (2015),
“Standing may derive from either classical or statutory aggrievement. . . . Aggrievement is also expressly required by the statutes that govern a FOIA appeal. See
In Burton, this court addressed the precise issue raised in the case at hand, namely, whether a plaintiff had standing to challenge on appeal the commission‘s failure to impose a civil penalty as a remedy once the commission determined that a FOIA violation had occurred. See id., 662–67. This court concluded that the plaintiff in Burton was neither classically nor statutorily aggrieved by the commission‘s decision not to impose a civil penalty because the decision did not violate a legal interest of the plaintiff and there was no statutory authority that provided the plaintiff with standing to appeal to the trial court from the commission‘s failure to impose such a penalty. See id., 665–67. In reaching this conclusion, the panel in Burton relied in part on the language of
The plaintiff acknowledges that Burton was binding on the trial court, but attempts to distinguish Burton from the present case by arguing that he was aggrieved by the commission‘s decision not to impose a civil penalty against the health center because that decision led to a subsequent denial of his right to receive records from the health center promptly pursuant to
II
The plaintiff next claims that the court erred in dismissing his claim that his FIC 2014-156 complaint was improperly dismissed on the basis thаt he was not aggrieved because the issues raised in that complaint were addressed in FIC 2015-127, the underlying matter in which he ultimately prevailed. The plaintiff claims that he did not appeal from the court‘s decision regarding his FIC 2014-156 complaint, because he relied to his detriment on the commission‘s guarantee during a hearing on that matter14 that it would take his FIC 2014-156 complaint into consideration in making its decision in regard to his later FIC 2015-127 complaint. The plaintiff asserts that he subsequently was aggrieved by the commission‘s failure in FIC 2015-127 to consider all of the relevant records from FIC 2014-156, as well as its decision in FIC 2015-127 to consider the February 4, 2015 request date in determining whether the health center had promptly complied, rather than the August 19, 2013 request date. We agree with the commission that the court properly dismissed this claim.
“Our resolution of this issue is guided by the limited scope of judicial review afforded by the Uniform Administrative Procedure Act;
The plaintiff‘s argument appears to be that, because of representations made tо him by counsel for the commission during the hearing concerning his appeal of FIC 2014-156, he did not appeal the court‘s disposition regarding his FIC 2014-156 complaint, and, as a result, the commission should be equitably estopped from later asserting any issues arising from his failure to appeal. We, however, agree with the court that the record reveals that the plaintiff‘s argument lacks merit. Contrary to the plaintiff‘s assertion, the record indicates that the commission did take the relevant facts of FIC 2014-156 into consideration when making its decision that the health center had violated the FOIA. Not only did the commission find that the February 4, 2015 request was identical to the August 19, 2013 request, but, during the hearing in FIC 2015-127, the commission explicitly took administrative notice of the findings of fact in FIC 2014-156 that were relevant to its determination as to whether the health center had promptly complied. Because the commission actually did take the relevant facts оf FIC 2014-156 into consideration in making its decision in FIC 2015-127, and the plaintiff‘s February 4, 2015 request is identical to his August 19, 2013 request, the plaintiff has not demonstrated how he was aggrieved by the statements of the commission‘s counsel or by the commission‘s reliance on the later request date in making its decision. Therefore, the plaintiff‘s claim is without merit, and, accordingly, we conclude that the court properly dismissed it.
III
The plaintiff next claims that the court erred in concluding that there was substantial evidence in the record to support the commission‘s finding that the plaintiff had narrowed the scope of his FOIA request, as described in paragraph eleven of the commission‘s final decision. Specifically, the plaintiff claims that he had not agreed to permanently narrow his FOIA request to limit it to only the records described in an e-mail communication with Dr. Wetstone, the health center‘s FOI officer. Rather, the plaintiff claims that he had requested the health center to expedite the most time sensitive portion of his request without excluding the remainder of the records requested. The record supports the plaintiff‘s claim in this regard.
The record reveals the following additional facts that are relevant to this claim. After receiving the plaintiff‘s modified FOIA request, Dr. Wetstone e-mailed the plaintiff the following on December 13, 2013: “As I have already described, this request is likely to take a considerable amount of time to complete given the number [of] documents involved, the nature of the documents . . . and my office‘s capacity to review these documents . . . . To any degree that you are willing to narrow the scope of this [FOIA] request, it might help expedite you receiving the documents you are seeking.”
The plaintiff responded as follows: “As I stated before you may exempt [b]roadcast news [e-mails], journal articles, and research data. Sincе I do not know what else is in [Dr.] Lieberman‘s computer and [e-mail] I am welcome to other suggestions. If you are able to send me a list of documents on the computers and or [e-mails] I would be happy to omit the ones I think are irrelevant.” The plaintiff subsequently filed his complaint in FIC 2014-156 on
On June 30, 2014, the plaintiff sent the following e-mail to Dr. Wetstone: “Quite some time has passed since [my] FOIA request was made. As you are aware from one of your other responsibilities at the Health Center I have an appeal due on or about July 21, 2014 with respect to my HCAC grievance against Dr. Lieberman. There is likely material extremely relevant to my . . . appeal in [my] FOIA request that I would hope to receive by July 14, 2014 if possible so I have time to evaluate the information and incorporate it into my appeal. Therefore, I am asking you to consider releasing to me by July 14, 2014 whatever material you have collected to date [as] well as the subset of documents that meet the following criteria: (‘Mike’ OR ‘Aronow’ or ‘ARANOW’ or ‘Arano’ OR ‘HCAC’ OR ‘grievance’ or ‘Appeals Committee’ OR ‘FOI’ OR ‘FOIA’ OR ‘Freedom of Information‘) between July 1, 2010 and August 14, 2012 and excluding [e-mails] directly sent or [cc‘d] to Aronow@nso.uchc.edu.”
As previously discussed, on February 4, 2015, the same date that the plaintiff‘s complaint in FIC 2014-156 was dismissed, the plaintiff submitted a FOIA request identical to his August 19, 2013 request. On February 17, 2015, the plaintiff filed his complaint in FIC 2015-127. During the hearing in that matter, Dr. Wetstone testified that he had negotiated with the plaintiff a “dramatic reduction” to his original August 19, 2013 request, but that the plaintiff‘s February 4, 2015 request restored the original, prenegotiation request. Other than Dr. Wetstone‘s testimony in this regard, there was no documentary evidence reflecting that the plaintiff had narrowed the scope of his records request. Moreover, the plaintiff testifiеd that there was an “implicit assumption . . . that the same restrictions [regarding his original request] would be in place [regarding his February 4, 2015 request]” and that he “was always willing to work with Dr. Wetstone to narrow [his request] in any way before, and the implicit assumption was that . . . [Dr. Wetstone] would give [him] the documents he already had . . . .” The hearing officer also asked the plaintiff if he was still willing to reduce the number of documents he was requesting, to which the plaintiff replied in the affirmative.
As with the plaintiff‘s second claim, our review of this claim is limited to “whether the agency, in issuing its order, acted unreasonably, arbitrarily or illegally, or abused its discretion.” (Internal quotation marks omitted.) Perkins v. Freedom of Information Commission, supra, 228 Conn. 164. Also in our review, we are mindful that “[t]he [FOIA] expresses a strong legislative policy in favor of the open conduct of government and free public access to government records.” Wilson v. Free- dom of Information Commission, 181 Conn. 324, 328, 435 A.2d 353 (1980); see also Board of Education v. Freedom of Information Commission, 208 Conn. 442, 450, 545 A.2d 1064 (1988) (“general policy of openness expressed in the FOIA legislation“); Tompkins v. Freedom of Information Commission, 136 Conn. App. 496, 507, 46 A.3d 291 (2012) (“We note initially that public policy favors the disclosure of public records. . . . [A]ny exception to that rule [therefore] will be narrowly construed in light of the general policy of openness expressed in the [FOIA] . . . .” [Citation omitted; internal quotation marks omitted.]). In addition, “[t]he burden of proving the applicability of an exception to the FOIA rests upon the party claiming it.” Rose v. Freedom of Information Commission, supra, 221 Conn. 232.
The
In the June 30, 2014 e-mail, the рlaintiff clearly stated that he needed material that was relevant to his pending committee appeal. He also asked Dr. Wetstone to forward any documents that had been collected up to that date, including documents that were relevant to his committee appeal. The plaintiff also explicitly excluded e-mails that had been sent to his own e-mail address at the health center. The plaintiff, however, did not state in the e-mail that he was in any way limiting his original August 19, 2013 request, or that he was excluding the remainder of the documents related to that request. The only reasonable reading of the plaintiff‘s e-mail is that he was attempting to expedite the receipt of certain documents for his upcoming committee appeal. Nowhere in the plaintiff‘s response to Dr. Wetstone did he evince an intent to permanently alter the scope of his pending FOIA request.
Moreovеr, the commission‘s view that the June 30, 2014 e-mail constituted an agreement by the plaintiff to narrow the scope of his request appears to conflate that e-mail with the plaintiff‘s December 16, 2013 e-mail in which he explicitly agreed to exclude “broadcast [e-mails], journal articles, and research data” from his original August 19, 2013 request.15 (Internal quotation marks omitted.) The plaintiff does not dispute that he agreed to exclude these documents, as well as the e-mails sent to his e-mail address at the health center. The plaintiff‘s testimony before the commission reflects his assumption that these were the same exclusions that would be in place in his February 4, 2015 request,
and that this request would otherwise remain the same as his original request.
Not only is the commission‘s order narrowing the plaintiff‘s request as described in paragraph eleven of its final decision inconsistent with the record, but it also contravenes the generаl policy of openness expressed within the FOIA. See Ottochian v. Freedom of Information Commission, supra, 221 Conn. 398; Tompkins v. Freedom of Information Commission, supra, 136 Conn. App. 507. Our application of this general policy is not hindered where neither the health center nor the commission has asserted that the restrictions enunciated in paragraph eleven were due to exemptions pursuant to
In this opinion the other judges concurred.
Notes
Additionally, in his brief, the plaintiff‘s only references to his request for an in camera review of documents that the health center claimed to be exempt from disclosure consist of a summary of the trial court‘s decision and a statement of his belief that he will need to file a new FOIA request for an in camera review of the contested records. Lаcking any analysis or argumentation, we deem this claim to be abandoned. See Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (“[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” [Internal quotation marks omitted.]); Walker v. Commissioner of Correction, 176 Conn. App. 843, 856, 171 A.3d 525 (2017) (same).
“[The Court]: Right. How about [the plaintiff‘s] claim that the 2014 [case] is different than the 2015 case because it‘s more and more likely to result in an order of sanctions against the health center?
“[The Commission‘s Counsel]: Well—and I understand [the plaintiff]‘s thinking in that regard but he is able when his case comes up, he is able to explain that it is a renewed complaint and the hearing officer who makes a recommendation to the сommission will consider that. It won‘t just look at the complaint in isolation.
“[The Plaintiff] will be able to present evidence that this is, in fact, a renewed complaint that he had to file in order to come within the jurisdiction of the commission.
“[The Court]: But his claim is that the length of time that it‘s taken the health center to supply the records is longer in the 2014 case than in the 2015 case and therefore he is more likely to obtain sanctions.
“[The Commission‘s Counsel]: And again, he would be able to present that evidence at the hearing that this is a renewed complaint and his original request was made over, I think it was [seventeen] months ago and the hearing officer and the commission will take that into consideration. It won‘t view this new complaint, renewed complaint in isolation. [The plaintiff] will be able to present evidence that it was actually a renewed complaint.” (Emphasis added.)