205 Conn. 767 | Conn. | 1988
These are consolidated appeals by the defendants, the freedom of information commission (hereinafter commission) and Susan Stone, from a judgment of the Superior Court, Schaller, J., that reversed, in part, the final order of the commission. The final order required the city of New Haven to provide Susan Stone “with copies of invoices for services rendered by the law firm of Beveridge and Diamond and by any other law firm or attorney retained for the purpose of litigating claims pertaining to the East Shore waste-water treatment plant.” The two issues raised in these appeals are (1) whether the trial court exceeded the permissible scope of judicial review of the final order of the commission, and, if not, (2) whether invoices that bear only the name of the firm and the amount billed from law firms that rendered legal services to the city of New Haven in connection with the East Shore waste-water treatment plant are exempt from disclosure under Connecticut’s Freedom of Information Act as “records pertaining to strategy and negotiations” under General Statutes § 1-19 (b) (4).
The underlying facts are not in dispute. In the mid-1970s the named plaintiff, the city of New Haven, entered into a series of contracts for the construction of the East Shore wastewater treatment plant. When the construction of the plant had been substantially completed in 1982, the city took possession of it and began operations. The plant did not function properly and shortly thereafter the city entered into a series of
In February, 1986, Stone sent a letter to the public information/public advocacy office of the city and town of New Haven, and in accordance with General Statutes § 1-19 (a)
At the administrative hearing conducted by Commissioner E. Bartlett Barnes as the hearing officer, the city argued that the information was exempt from disclosure as: (1) attorney-client communications within General Statutes § 1-19 (b) (10);
The city and the public information/public advocacy office of the city and town of New Haven took timely appeals from the final order of the commission pursuant to General Statutes §§ l-21i (d)
The appeals of the commission and Stone from the decision of the trial court were transferred to this court pursuant to Practice Book § 4023. The defendants argue that the trial court erred in reversing the final decision of the commission because it (1) exceeded the permissible scope of judicial review and (2) expanded the narrow scope of the exemption under § 1-19 (b) (4) by holding that the invoices requested pertained to strategy and negotiations. We find error.
The defendants first argue that the trial court exceeded the scope of judicial review as set forth in
“ ‘Judicial review of [an administrative agency’s] action is governed by the Uniform Administrative Procedure Act (General Statutes, c. 54, §§ 4-166 through 4-189), and the scope of that review is very restricted. Lawrence v. Kozlowski, 171 Conn. 705, [707-708,] 372 A.2d 110 (1976) [cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977)]. Neither this court nor the trial court may retry the case or substitute its own judgment for that of the defendant.’ C & H Enterprises, Inc. v. Commissioner of Motor Vehicles, 176 Conn. 11, 12, 404 A.2d 864 (1978); DiBenedetto v. Commissioner of Motor Vehicles, 168 Conn. 587, 589, 362 A.2d 840 (1975); see General Statutes § 4-183 (g). ‘The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of [its] discretion.’ Burnham v. Administrator, 184 Conn. 317, 322, 439 A.2d 1008 (1981); Riley v. State Employees’ Retirement Commission, 178 Conn. 438, 441, 423 A.2d 87 (1979); see also Persico v. Maher, 191 Conn. 384, 409, 465 A.2d 308 (1983).” Buckley v. Muzio, 200 Conn. 1, 3, 509 A.2d 489 (1986).
In reversing the final decision of the commission, the trial court found that the decision was affected by an error of law in that the commission misinterpreted § 1-19 (b) (4). Ordinarily, the construction and interpretation of a statute is a question of law for the courts where the administrative decision is not entitled to spe
While the trial court here properly balanced the competing interests as intended by the legislature when applying the exemption under § 1-19 (b) (4), the trial court improperly substituted its own conclusion for the commission’s by applying the law to facts not reasonably supported by the record. The limited record before the trial court consisted of the following: (a) the eight page transcript of the administrative hearing before the hearing officer; (b) the three trial briefs of the parties; (c) the exhibits before the hearing officer; and
The city argues: “Strong evidence that the information requested has potential value to Zimpro ... in countering the City’s strategy and negotiations is the very fact that the request comes from the attorneys representing Zimpro.” We are unpersuaded. It is undisputed that Stone has been a member of the law firm representing Zimpro, Inc., in the city’s suit against Zimpro, Inc. While this fact raises questions and eyebrows regarding the motives behind Stone’s request for the invoices, we do not find it, in and of itself, to be sufficient evidence to demonstrate that the requested invoices in fact “pertain to” strategy and negotiations in the pending litigations. To draw a conclusion either way from this single fact would be nothing more than speculation and conjecture.
We note that the general rule under the Freedom of Information Act is disclosure with the exceptions to this rule being narrowly construed. The burden of establishing the applicability of an exemption clearly rests upon the party claiming the exemption. See Hartford v. Freedom of Information Commission, 201 Conn. 421, 431, 518 A.2d 49 (1986); Maher v. Freedom of Information Commission, 192 Conn. 310, 315, 472 A.2d 321 (1984); Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183,188, 470 A.2d
It is clear from the trial court’s memorandum of decision that its conclusion that the invoices in question pertained to strategy and negotiations was founded primarily upon the arguments of the plaintiffs’ counsel set forth in the plaintiffs’ pretrial brief. As previously stated, unsupported conclusory allegations of counsel are not evidence and are insufficent for the application of an exemption from disclosure. Neither the adminis
Under these circumstances, therefore, the trial court impermissibly substituted its judgment for that of the commission without a factual basis for doing so. Accordingly, we hold that the trial court erred in applying its interpretation of § 1-19 (b) (4) to thwart disclosure when there were no facts in the record to support such an application of the statute.
We note that our decision does not reach the substantive merits of the plaintiffs’ exemption claim under § 1-19 (b) (4). We need not, nor can we decide, on the basis of the state of the record before this court, whether invoices for legal services that bear only the
There is error, the judgment is set aside and the case is remanded with direction that judgment be rendered dismissing the plaintiffs’ appeals.
In this opinion the other justices concurred.
General Statutes § 1-19 (a) provides in pertinent part: “access to public records, exempt records, (a) 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 inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. Any agency rule or regulation or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. . . .”
General Statutes § 1-21Í (b) provides in pertinent part: “DENIAL op ACCESS TO PUBLIC RECORDS OR MEETINGS. APPEALS. NOTICE. ORDERS. CIVIL PENALTY. SERVICE OF PROCESS UPON COMMISSION. FRIVOLOUS APPEALS. . . .
*770 “(b) Any person denied the right to inspect or copy records under section 1-19 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, may appeal therefrom to the freedom of information commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held. For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken. . . .”
General Statutes § 1-19 (b) (10) provides: “(b) Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of . . . (10) records, tax returns, reports and statements exempted by federal law or state statutes or communications privileged by the attorney-client relationship.”
General Statutes § 1-19 (b) (4) provides: “(b) Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of . . . (4) records pertaining to strategy and negotiations with respect to pending claims and litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled.”
General Statutes § 1-15 provides in pertinent part: “application for COPIES OF PUBLIC RECORDS. CERTIFIED COPIES. FEES. Any person apply
General Statutes § 1 -21i (d) provides: “Any party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183. The commission shall have standing to defend, prosecute or otherwise participate in any appeal of any of its decisions and to take an appeal from any judicial decision overturning or modifying a decision of the commission. If aggrievement is a jurisdictional prerequisite to the commission taking any such appeal, the commission shall be deemed to be aggrieved. Notwithstanding the provisions of section 3-125, legal counsel employed or retained by said commission shall represent said commission in all such appeals and in any other litigation affecting said commission. Notwithstanding the provisions of subsection (b) of section 4-183 and section 52-64, all process shall be served upon said commission at its office. Any appeal taken pursuant to this section shall be privileged in respect to its assignment for trial over all other actions except writs of habeas corpus and actions brought by or on behalf of the state, including informations on the relation of private individuals. Nothing in this section shall deprive any party of any rights he may have had at common law prior to January 1, 1958. If the court finds that any appeal taken pursuant to this section or section 4-183 is frivolous or taken solely for the purpose of delay, it shall order the party responsible therefor to pay to the party injured by such frivolous or dilatory appeal costs or attorney’s fees of not more than one thousand dollars. Such order shall be in addition to any other remedy or disciplinary action required or permitted by statute or by rules of court.”
General Statutes § 4-183 (a) provides: “appeal to superior court. (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter, provided, in case of conflict between this chapter and federal statutes or regulations relating to limitations of periods of time, procedures for filing appeals or
It is appropriate to look to federal case law interpreting the federal Freedom of Information Act; 5 U.S.C. § 552 et seq.; for guidance because the purposes of the federal act and of Connecticut’s act are virtually identical. See Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 553, 436 A.2d 266 (1980), and authorities cited therein.
The following is a list of exhibits submitted at the administrative hearing, none of which is relevant to the substantive merits of the claimed exemption under General Statutes § 1-19 (b) (4):
“Plaintiffs Exhibit A: Complaint letter dated February 18, 1986, from Susan M. Stone to Chairwoman Judith A. Lahey.
“Plaintiff’s Exhibit B: Letter dated February 24, 1986, from Marianne D. Smith, Commission Counsel, to Susan M. Stone.
“Plaintiff’s Exhibit C: Letter dated February 27, 1986, from Susan M. Stone to Marianne D. Smith.
“Plaintiff’s Exhibit D: Letter dated February 10, 1986, from Susan M. Stone to William O’Sullivan.
“Respondent's Exhibit 1: Complaint dated June 1, 1984, from Louis R. Pepe to the United States District Court for the District of Connecticut.”