Judiciary Committee of General Assembly v. Freedom of Information Com'n

• Decision Date: 31 October 1983
• Docket Number: No. 243634,243634
• Citation: 473 A.2d 1248,39 Conn.Supp. 176
• Court: Connecticut Superior Court
• Parties: JUDICIARY COMMITTEE OF the GENERAL ASSEMBLY v. FREEDOM OF INFORMATION COMMISSION. -New Britain

Page 1248

473 A.2d 1248

39 Conn.Supp. 176

JUDICIARY COMMITTEE OF the GENERAL ASSEMBLY v. FREEDOM OF INFORMATION COMMISSION.

No. 243634.

Superior Court of Connecticut,

Judicial District of Hartford-New Britain.

Oct. 31, 1983.

Joseph I. Lieberman, Atty. Gen. and Paul M. Shapiro, Asst. Atty. Gen., for plaintiff.

Mitchell W. Pearlman, general counsel, Hartford, for defendant.

HURLEY, Judge.

In this matter the judiciary committee (committee) is appealing from a decision of the freedom of information commission (FOIC). The appeal is brought under the provisions General Statutes § 4-183, which is applicable to FOIC appeals. General Statutes § 1-21i(d).

The complainants, Andrew J. Melechinsky and Ralph J. Lombardi, constitute an organization known as "Constitutional Revival." These individuals sent a letter to the FOIC requesting information held by the judiciary committee. Specifically, they wanted to look at the information contained within the committee's files of all judges to be reappointed and judicial nominees. They made particular reference to the questionnaires filled out by judicial candidates for reappointment as judges of the Superior Court. The hearing was held on November 13, 1979, before FOIC hearing officer Helen M. Loy.

At the hearing they further limited their request to the answers filed by three judges to six of the questions:

1. The nominee's marital status;

2. The nature and disposition of any complaints filed against the nominee with a grievance committee;

3. The details of any reprimands given to the nominee by any court, judge or grievance committee;

4. The details of any claims or suits for malpractice against the nominee;

5. The nominee's years of military service, rank, duties, type of discharge or disability rating, if any;

6. The nominee's present physical condition.

In their letter to the FOIC dated March 16, 1978, the complainants set forth the purpose of their request: "We want to know this information because our experience indicates that most or all of the judges in the system are incompetent."

The court has no background on Lombardi's experience with the courts. Melechinsky however, put into evidence before the FOIC verbal and documentary evidence of his experience with the courts. The documentary evidence consisted of newspaper articles describing his battles with the courts, including information that he had been arrested twenty times and jailed fifteen times, had been charged with practicing law without a license, with having counterfeit marker plates, with the crimes of criminal trespass and of resisting arrest, and with contempt of court. He told the FOIC that 90 percent of this state's laws are unconstitutional and described himself as "an unlicensed constitutional lawyer." He also filed various lawsuits, including one against the jury that found him guilty of criminal trespass, another against various judges and another against the entire court system in the state. None of his suits was successful, according to the articles he submitted as exhibits. He appeared at the hearing before the FOIC both as a witness and as his own attorney. Lombardi also testified.

The only other witness to testify was State Representative Ernest N. Abate, who was at the time Speaker of the House and chairman of the judiciary committee.

The hearing was held November 12, 1979.

In essence, the testimony of Melechinsky and Lombardi consisted of a history of their efforts to obtain information from the committee about the backgrounds of judicial candidates and of general statements of a derogatory nature about the judiciary. They also made various comments as to the present methods of appointing judges and suggested alternatives to the system presently in effect.

Abate described the questionnaire answered by the judges at the request of his committee. He indicated that he did not consider the answers to the questions which were related to medical information, appearances before grievance committees of the bar association, personal matters such as marital status, and other personal information of a sensitive nature, to be in the public domain. This information was gathered for the committee only and not available to the public.

Abate also stated that complaints against judges were investigated by the committee. The blank questionnaire was then put into evidence so that the specific questions asked would be known to the complainants and to the FOIC hearing officer.

Regarding certain questions, Abate explained why the committee would not reveal them to the public. He stated that questions regarding marital status were personal and not to be disclosed because a nominee might be in the course of a dissolution action, or something of that sort, information the committee considered very personal to a nominee. The committee regarded matters relating to reprimands by a court, or appearances before a grievance committee as protected information, as set forth in state statutes and the rules of court. Malpractice claims are information the committee considers personal and, claimed Abate, should not be disclosed to the public. The type of discharge from the military, disability ratings, possibly a bad conduct or undesirable discharge are all personal information and should not be made known to the public. Present physical condition in some cases is very personal information, as well as medical information, and should not be disclosed. Complaints to the judicial review council are not disclosed to the public because such complaints are by statute not public information.

Abate then delineated the differences between the committee's need to have this information to help determine the candidate's qualifications for judicial office and the need of the public to have it. He pointed out that in cases of medical problems, for example, the details could be embarrassing to the judicial candidate, if revealed to the public at large.

The statutory basis for Abate's testimony and for the position taken by the committee is General Statutes § 1-19(b)(2) which exempts from disclosure "personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy."

Section 32 of the Practice Book provides that the records and transcripts of the local, or the statewide, grievance committees are available only to those committees and not to any other person except by order of the court. Thus questions two and three of the six questions are barred from disclosure to the public by § 32 of the Practice Book.

General Statutes § 51-51l (Rev. to 1979) exempts the statewide judicial review council, which is responsible for the disciplining of judges, from the Freedom of Information Act. "The records of the [judicial review] council shall not be public records for the purposes of sections 1-19 and 1-20." Thus question three which deals with the details of any reprimands given to the nominee by any court or judge would not be subject to disclosure under § 51- 51l.

The hearing officer's report is dated February 7, 1980, and was approved by the FOIC on February 27, 1980.

The first issue then to be decided by the court is whether the FOIC decision should be reversed with respect to questions two and three dealing with complaints to any grievance committee, or with an action taken by a committee or a court.

General Statutes § 4-183(g) ¹ states in pertinent part that the court shall not substitute its judgment for that of the agency (FOIC) as to the weight of the evidence on questions of fact. The court may, however, reverse or modify a decision if it finds that the decision is: "(1) In violation of constitutional or statutory provisions ...; (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."

The committee alleges that the FOIC abused its discretion in ignoring the policies behind the Freedom of Information Act. It also claims that Practice Book § 32 specifically bars the public from information possessed by any grievance committee. The hearing officer ignored Practice Book § 32, simply stating, in effect, that judges, as public officials, have no right to privacy in matters relating to the public's business. The court is not aware of any cases regarding the applicability of the Practice Book rule to the Freedom of Information Act. The court does find, however, that the FOIC did not consider this issue before rendering its decision. In its brief, the defendant cites no authority for making public the answers to questions two and three relating to grievance committee matters and fails to even refer to Practice Book § 32 and its conflict with the Freedom of Information Act. Instead, the defendant asserts that the records of the grievance committee are not in question, since the information to be disclosed is the response to the questionnaire regarding grievance matters. Such reasoning is not persuasive. The disclosure of the information regarding grievances is the issue. The issue is not what the source of that information is. Accordingly, the court finds that the decision of the FOIC was in violation of Practice Book § 32. It was also in violation of General Statutes § 51-51l. Therefore, the decision was erroneous, arbitrary and clearly unwarranted with respect to questions two and three.

With regard to all the questions, the FOIC found that the information was, in fact, "personnel or medical files and similar files" within the meaning of General Statutes § 1-19(b)(2). In interpreting the act, the general rule is that disclosure and exceptions thereto are to be narrowly construed. Wilson v. Freedom of Information Commission, 181 Conn. 324, 329, 435 A.2d 353 (1980). The burden of proving the applicability of an exemption rests on the agency claiming it. Id., 341, 435 A.2d 353.

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