City of Bridgeport v. Freedom of Info. Comm'n

• Docket Number: AC 45287
• Decision Date: 24 October 2023
• Citation: City of Bridgeport v. Freedom of Info. Comm'n, 222 Conn.App. 17, 304 A.3d 481 (Conn. App. 2023)
• Parties: CITY OF BRIDGEPORT et al. v. FREEDOM OF INFORMATION COMMISSION
• Court: Connecticut Court of Appeals

222 Conn.App. 17

304 A.3d 481

CITY OF BRIDGEPORT et al. v. FREEDOM OF INFORMATION COMMISSION

AC 45287

Appellate Court of Connecticut.

Argued May 18, 2023

Officially Released October 24, 2023

Danielle L. McGee, commission counsel, with whom, on the brief, was Colleen M. Murphy, for the appellant(defendant).

Dina A. Scalo, with whom, on the brief, was Michael C. Jankovsky, Fairfield, for the appellees(plaintiffs).

Bright, C. J., and Moll and Suarez, Js.

BRIGHT, C. J.

The defendant, the Freedom of Information Commission(commission), appeals from the judgment of the Superior Court sustaining the administrative appeal filed by the plaintiffs, the Chief of Police of the Bridgeport Police Department, the Bridgeport Police Department(department), and the city of Bridgeport(city), from a final decision of the commission regarding the complaint filed by Marlando Daley.¹In its final decision, the commission found that the plaintiffs violated the Freedom of Information Act (act),General Statutes § 1-200 et seq., in handling Daley's request for records and ordered the plaintiffs to provide Daley with the requested records without certain redactions and to search for additional responsive records.On appeal, the commission claims that the court(1) exceeded the scope of judicial review when it sustained the plaintiffs’ appeal on a ground neither raised by the plaintiffs nor considered by the commission, (2) misconstrued General Statutes § 1-206 (a) in concluding that Daley's request was not deemed denied pursuant to the statute until four business days after the request was received by the plaintiffs, and (3) improperly found that the plaintiffs received Daley's request on August 19, 2019.

The plaintiffs disagree with the commission's claims and contend that the judgment may be affirmed on the alternative grounds that the commission (1) violated § 1-206 (b)(2) by failing to seek leave of the commission before scheduling a hearing on Daley's complaint, (2) should have dismissed the appeal pursuant to § 1-206 (b)(4), (3) improperly decided issues not raised in Daley's complaint, and (4) improperly concluded that the plaintiffs failed to meet their burden of establishing that certain information in the records was exempt from disclosure pursuant to General Statutes § 1-210.We agree with the commission's first and third claims and reject the plaintiffs’ alternative grounds for affirming the judgment.Accordingly, we reverse the judgment of the Superior Court.

The following facts, either as found by the hearing officer or undisputed in the record, and procedural history are relevant to the parties’ claims.In October, 2011, Daley was convicted of murder and sentenced to forty years of incarceration in connection with the 2010 shooting death of a man in Bridgeport.SeeState v. Daley , 161 Conn. App. 861, 863, 129 A.3d 190(2015), cert. denied, 320 Conn. 919, 132 A.3d 1093(2016).In a letter dated August 6, 2019, and addressed to "Chie[f] o[f] Police Armando Perez," Daley requested, pursuant to General Statutes § 1-212, ² copies of any and all records in the department's possession related to the criminal investigation of Daley and his criminal murder case.At the end of the letter, Daley stated: "Please respond to my request within (14) work days and/or to ask for additional time to respond.The info requested herein is vital to justic[e] in the matter, so I thank you in advance for your time, effort, and assistance."

By letter dated August 19, 2019, Daley filed a "notice of appeal"(complaint) with the commission pursuant to § 1-206 (b)(1), ³ which was received by the commission on August 20, 2019.In the complaint, Daley claimed that the plaintiffs had not complied with his "freedom of information request dated August 6, 2019, to the [department]at 300Congress Street, Bridgeport" and requested "that a civil penalty be applied due to noncompliance [with] the above dated request ...."The commission docketed the complaint and, thereafter, forwarded it to the plaintiffs on September 19, 2019.Also by letter dated August 19, 2019, the Office of the City Attorney for the city (city attorney) responded to Daley's August 6, 2019 request, notifying Daley that the plaintiffs had received his request and that they would contact him in writing when the documents were available.

The plaintiffs filed an answer to Daley's complaint with the commission on September 26, 2019, in which they asserted that the city attorney received Daley's request on August 19, 2019, and that the city attorney sent Daley a letter acknowledging receipt of his request that same day.The plaintiffs also noted that the department had located the requested records and would finish reviewing them for information exempt from disclosure under the act by October 10, 2019.Thus, the plaintiffs asserted that, "pursuant to ... § 1-206 (b)(1), [the commission] does not have jurisdiction to hear [Daley's] complaint, as the [plaintiffs have] not denied [Daley] the right for a copy of the requested records.The [plaintiffs] respectfully [request] dismissal of [Daley's] complaint."By letter dated October 3, 2019, Daley acknowledged the plaintiffs’ answer and requested that all responsive records be sent to the attorney representing him in connection with his petition for a writ of habeas corpus.

In a letter dated November 12, 2019, the commission notified Daley and the plaintiffs that a hearing officer would hold a hearing on the merits of Daley's complaint on December 6, 2019.On November 13, 2019, the city attorney sent Daley's attorney the requested records, noting that only "one [compact disc] record has been withheld pursuant to ... § 1-210 (b)(3)(C)."⁴

At the December 6, 2019 hearing, Daley informed the hearing officer that his attorney had received responsive documents from the plaintiffs but complained about the extensive redactions throughout the materials.When the hearing officer asked counsel for the plaintiffs, Attorney Dina A. Scalo, if the records were redacted, Scalo responded that the plaintiffs had redacted the names of witnesses and other personal identifying information.The following exchange then occurred between the hearing officer and Scalo:

"[The Hearing Officer]: So, at this point there's not much I can do.You don't have a witness and you're going to need to submit the records for in camera inspection. ...

"[Scalo]: The complaint was that he had not received the records.We received the complaint—actually, the complaint was dated the same day that we had received his request.So, as of now, we have sent all the records, we have been diligent in sending the records, we've been efficient in sending the records.We have utilized the ombudsman program.We've spoken with Attorney Harmon and she's been speaking, I'm assuming, with Mr. Daley to rectify this.No mention was made that the redactions were at issue here.The only issue is whether he had received the documents as far as I understand. ...So, at this point, the city was in full compliance.We provided the documents free of cost as soon as we could.We gave them to the person that Mr. Daley wanted us to give them to.The redactions or what was redacted was never brought to the city attorney's office by Attorney Gallucci or Mr. Daley or Attorney Harmon working as ombudsman with Mr. Daley.So, as of now, we've not been given notice that the redactions were at issue.The complaint itself says he hasn't received copies of the records.So—

"[The Hearing Officer]: If you want me to continue the hearing you now have notice.I think it's implied— "[Scalo]: Sure.

"[The Hearing Officer]: —when someone files an appeal here that they're saying I haven't gotten all the records.You might think you've complied but, in fact, you may have overredacted the records, which means that I could find that you violated [the act].

"[Scalo]: Okay.

"[The Hearing Officer]: So, why don't we continue the hearing.We will come back, I expect that you bring the records, I'll issue an order.You can bring the records with you.You should have a completed index and you should have a witness who is—can testify as to the redactions to the extent that you need a witness.So, if there's signed witness statements, they're exempt, and I don't need a witness to tell me that, but to the extent you're claiming other exemptions and you need a witness, you should bring a witness.

"[Scalo]: Okay."

The parties returned for another hearing on January 19, 2020, during which the plaintiffs presented testimony from Detective Joette Devan of the department regarding the claimed exemptions from disclosure.Following the hearing, the hearing officer issued a proposed final decision dated March 5, 2020.In that decision, the hearing officer concluded that the plaintiffs violated the act by failing to conduct a thorough search for records responsive to Daley's request, by redacting certain information, and by withholding certain responsive records.The hearing officer did not address the plaintiffs’ claim that the commission lacked jurisdiction over Daley's complaint, and the plaintiffs noted that omission in their memorandum of law to the commission.When the commission considered the hearing officer's proposed decision at a meeting on September 9, 2020, Scalo outlined the plaintiffs’ jurisdictional claim as follows:

"So, the factual set up for this is set up in the proposed final decision in paragraph 2 through 4 I believe, but [Daley's] original ... request is dated August 6, [2019], and it was received by the [plaintiffs] on August 19, [2019].But the same day that the [city] received Daley's request, Daley filed a ... complaint alleging noncompliance [with his] request.So, you know, at this point, it was clear under the act that, at the time the complaint was made, certainly there was no denial of the right.The city sent its acknowledgement letter indicating that it had received the request in...