McCarthy v. Freedom of Information Commission

• Decision Date: 29 January 1979
• Docket Number: No. 225196,225196
• Citation: 35 Conn.Supp. 186,402 A.2d 1197
• Court: Connecticut Superior Court
• Parties: Patricia McCARTHY et al. v. FREEDOM OF INFORMATION COMMISSION et al. -New Britain, at Hartford

Page 1197

402 A.2d 1197

35 Conn.Supp. 186

Patricia McCARTHY et al. v. FREEDOM OF INFORMATION COMMISSION et al.

No. 225196.

Superior Court of Connecticut, Judicial District of Hartford-New Britain, at Hartford.

Jan. 29, 1979.

Kopkind, Flynn & Raccio, New Haven, for named plaintiff and plaintiffs Wayne Monty and Glenn Davis.

Myron B. Bell, New London, for defendants the city of New London and C. Francis Driscoll.

Day, Berry & Howard, Hartford, for defendants the Hartford Courant and Michael Whalen.

Mitchell W. Pearlman, Hartford, for named defendant.

BIELUCH, Judge.

This is an appeal from a decision of the freedom of information commission (hereinafter the commission). On October 25, 1978, the commission ordered the city of New London to release to the Hartford Courant certain records pertaining to complaints against New London police officers and to disciplinary action taken thereon. The plaintiffs herein, present and former police officers, moved to stay the commission's order. The court, after a hearing on the motion, rendered a temporary order staying the release of the requested information relating to the plaintiffs only, reserving its final determination until this time.

Any "party" who is aggrieved by the commission's decision may appeal in accordance with General Statutes § 4-183. General Statutes § 1-21i(d). The application for a stay of the commission's decision is authorized by § 4-183(c) of the Uniform Administrative Procedure Act. Section 4-183(c) does not indicate the criteria to be used by the court in determining when a stay should be ordered. The federal courts consider the factors first enumerated in Virginia Petroleum Jobbers Ass'n v. Federal Power Commission, 104 U.S.App.D.C. 106, 110, 259 F.2d 921, 925, in ruling on a motion to stay an administrative order pending judicial review. Under those criteria a petitioner is required to show: (1) that there is a strong likelihood of prevailing on the merits of the appeal; (2) that there is a probability of irreparable injury without such relief; (3) that no other parties of interest in the proceedings would be substantially harmed by the granting of a stay; and (4) that the public interest in the administrative ruling would not be prejudiced by a stay. See also Hamlin Testing Laboratories, Inc. v. United States Atomic Energy Commission, 337 F.2d 221, 222-23 (6th Cir.).

There are only two reported Connecticut cases on this issue, and both were decided in the former Court of Common Pleas. In Waterbury Hospital v. Commission on Hospitals & Health Care, 30 Conn.Sup. 352, 316 A.2d 787, the court (pp. 354-55, 316 A.2d 787) expressly adopted the above four-point federal test. Applying those criteria to the facts before it, the court denied the plaintiff's application for a stay of the administrative order directing the refund of rate increases collected prior to their approval by the defendant commission. The court found that the plaintiff had failed to satisfy the first, second and fourth requirements for the grant of a stay under the federal rule.

Subsequently, in Connecticut Life & Health Ins. Guaranty Ass'n v. Daly, 35 Conn.Sup. 13, 16, 391 A.2d 735, 737, the court rejected the federal standard as applied in the Waterbury Hospital case. The court based its rejection on the fact that the federal administrative procedure act (formerly 5 U.S.C. § 1009(d), now 5 U.S.C. § 705) "specifically provides that stay orders may be granted 'to the extent necessary to prevent irreparable injury,' " while the stay provision in § 4-183(c) "unlike the federal act, contains no irreparable injury standard." Calling the federal test proposed by the Waterbury Hospital case "too stringent," the court instead, relying upon the analysis of judicial decisions in 2 Cooper, State Administrative Law p. 629, applied "a balancing test a test which weighs the equities and balances the harm that may be suffered by the appellant as a result of enforcement of the agency order or decision, pending the appeal, against the public harm that may result from delaying the effectiveness of the order or decision." Connecticut Life & Health Ins. Guaranty Ass'n v. Daly, supra, 16-17, 391 A.2d 737.

The Connecticut Life case involved the application of § 38-308(j) of the General Statutes which concerned the obligations of the plaintiff to the policyholders of an impaired insurer. The dispute concerned the amount of the plaintiff's liability. The plaintiff claimed, and the court found (p. 17, 391 A.2d p. 737), that a stay was necessary because, if the plaintiff were forced to pay the amount ordered by the commissioner, there was "a real and substantial risk that those disbursements may not be recoverable by the plaintiff if it ultimately succeeds on the merits in its litigation."

The uncertainty of recovering overpayments to policyholders was the overriding consideration for the extension of the stay in Connecticut Life. The irretrievability of the information ordered released by the commission here is the equity conclusive of the plaintiffs' right to a stay pending the ultimate determination of this appeal.

Breach of secrecy is the heart of freedom of information proceedings. A secret has but one life, and that, a private one. Once unlocked by order of the commission, before or after court review, a "secret" becomes purposely known in the public domain and forever gone, never again to be recaptured and restored to its privacy, even if later found to have been released by error of law. Secrets once open, like unkind words, can never be recalled. Given the nature of a freedom of information proceeding the forced disclosure of restricted information and absent a compelling higher public interest, the equities weigh in favor of a plaintiff seeking to stay the ordered public delivery of confined records pending a judicial review of the order granted him by a law of equal importance. It is a maxim of law that "equality is equity."

The previous court tests for staying administrative orders pending judicial review do not meet the special issue presented in appeals from rulings ordering the release of information. Freedom of information cannot be unbridled from court review. The right of a citizen to freedom of information must be balanced by the correlative right of a party connected by subject or source to such information to have the release of his information reviewed by the court before its dissemination to the public. Otherwise, the court, by denying a stay of the commission's order for the release of records, becomes an instrument in the nullification of judicial review and, thereby, in the denial of equal access to the law to parties such as the plaintiffs.

This singular nature of an appeal from a freedom of information grant requires the issuance of a stay in order to preserve the plaintiffs' statutory right of appeal under § 1-21i(d). Should a stay be denied here, the irretrievable nature of the information ordered released would preclude the court from performing its judicial duty to provide a meaningful remedy, upon proof of entitlement by the plaintiffs, thereby rendering their appeal moot and overturning the court's jurisdiction to review the commission's...