Commissioner, Department of Emergency Services and Public Protection v. Freedom of Information Commission

• Court: Connecticut Superior Court
• Writing for the Court: Carl J. Schuman, J.
• Decision Date: 08 April 2016
• Docket Number: HHBCV156029797S
• Citation: Commissioner, Department of Emergency Services and Public Protection v. Freedom of Information Commission, HHBCV156029797S (Conn. Super. Apr 08, 2016)
• Parties: Commissioner, Department of Emergency Services and Public Protection et al. v. Freedom of Information Commission et al

Commissioner, Department of Emergency Services and Public Protection et al. v. Freedom of Information Commission et al

No. HHBCV156029797S

Superior Court of Connecticut, Judicial District of New Britain, New Britain

April 8, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Carl J. Schuman, J.

The immediate issue in this case involves the release under the Freedom of Information Act of materials owned by the shooter in the December 14, 2012 murders at the Sandy Hook Elementary School. There is unquestionably a heightened public interest in these materials and no claim of ownership of them or invasion of privacy resulting from their release. But the legal rule established by this case will apply to all future cases in which public disclosure is sought of privately-created documents not used in a criminal trial that the state or local police have involuntarily seized from innocent victims, witnesses, and even suspects. The court must decide this case with those future cases in mind.

The plaintiffs, who are the commissioner of the department of emergency services and public protection, the department itself (department), and, after obtaining permission to intervene, the state division of criminal justice, appeal from the final decision of defendant freedom of information commission (commission) ordering the plaintiffs to disclose to defendants David Altimari and the Hartford Courant newspaper (Courant) documents seized pursuant to search warrants by the Connecticut state police during its investigation of the December 14, 2012 Sandy Hook murders. The commission ruled that these documents were " public records" that were not exempt from disclosure under the Freedom of Information Act (act). See General Statutes § 1-200 et seq. The court sustains the appeal and reverses the commission's decision.

I

The record reveals the following facts. By letter dated January 24, 2014, the Courant requested from the plaintiffs copies of certain documents referred to in the state police report on the Sandy Hook shootings. These documents included " a spiral bound book written by the shooter entitled 'The Big Book of Granny, '" a photo of the class of 2002-03 at Sandy Hook Elementary School, and a " spreadsheet ranking mass murders by name, number killed number injured, types of weapons used, and disposition." (Return of Record (ROR), p. 303.)

When the plaintiffs did not file a timely response to this request, the Courant filed a complaint with the commission. On December 8, 2014, after the Courant had filed its complaint, the plaintiffs responded by letter stating that 'there are no documents responsive to your [FOI] request because you have requested access to or copies of . . . items of evidence that were seized or otherwise collected as part of the criminal investigation of the incident. Evidence collected as part of a criminal investigation does not constitute a 'public record' under the Connecticut [FOI] Act." (Internal quotation marks omitted.) (ROR, p 304.)

A hearing before the commission took place on January 6, 2015. In its May 13, 2015 decision, the commission found that the requested documents were seized pursuant to search warrants for the shooter's residence and that the state police had concluded its investigation with no arrests contemplated. (ROR, p. 305.) The commission ruled that the documents in question were " public records" within the meaning of the act and that no exemption to disclosure applied. Accordingly, the commission ordered that the plaintiffs provide a copy of each of the requested documents to the Courant free of charge. (ROR, p. 312.)

The plaintiffs appeal.^[1]

II

Under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., judicial review of an agency decision is " very restricted." (Internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136, 778 A.2d 7 (2001). Section 4-183(j) of the General Statutes provides as follows " The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."

Stated differently, " [r]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . Neither [the appellate] court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Okeke v. Commissioner of Public Health, 304 Conn. 317, 324, 39 A.3d 1095 (2012). " It is fundamental that a plaintiff has the burden of proving that the [agency], on the facts before [it], acted contrary to law and in abuse of [its] discretion." (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).

Our Supreme Court has stated that " [a]n agency's factual and discretionary determinations are to be accorded considerable weight by the . . ." (Internal quotation marks omitted.) Longley v. State Employees Retirement Commission, 284 Conn. 149, 163, 931 A.2d 890 (2007). " Even for conclusions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse if its discretion . . . [Thus] [c]onclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts . . . [Similarly], this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes . . . Cases that present pure questions of law, however, invoke a broader standard of review than is . . . involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Furthermore, when a state agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . We have determined, therefore, that the traditional deference accorded to an agency's interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] . . . a governmental agency's time-tested interpretation . . . [When the agency's] interpretation has not been subjected to judicial scrutiny or consistently applied by the agency over a long period of time, our review is de novo." (Citation omitted; internal quotation marks omitted.) Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, 310 Conn. 276, 281-83, 77 A.3d 121 (2013).

III

The act " makes disclosure of public records the statutory norm . . . [I]t is well established that the general rule under the [act] is disclosure, and any exception to that rule will be narrowly construed in light of the general policy of openness expressed in the [act] . . . [Thus] [t]he burden of proving the applicability of an exception [to disclosure under the act] rests upon the party claiming it." (Citations omitted; internal quotation marks omitted.) Director, Dept. of Information Technology v. Freedom of Information Commission, 274 Conn. 179, 187, 874 A.2d 785 (2005) (Director) .

Section 1-210(a) of the act provides in part that " [e]xcept 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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212." ^[2] The threshold issue in this case is whether the documents seized by the plaintiffs and requested by the Courant constitute " public records" within the meaning of the act.

General Statutes § 1-200(5) further defines " Public records and files" for purposes of the act as " any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten typed, tape-recorded, printed, photostated, photographed or recorded by any other method." There is no dispute that the requested documents constitute " recorded data or information, " that the plaintiffs are " public agencies, " or that the information seized by warrant, while not " owned" b...