Kelly v. Freedom of Information Com'n, 14352

• Decision Date: 03 March 1992
• Docket Number: No. 14352,14352
• Citation: 221 Conn. 300,603 A.2d 1131
• Court: Connecticut Supreme Court
• Parties: John J. KELLY, Chief State's Attorney v. FREEDOM OF INFORMATION COMMISSION, et al.

Page 1131

603 A.2d 1131

221 Conn. 300

John J. KELLY, Chief State's Attorney v. FREEDOM OF INFORMATION COMMISSION, et al.

No. 14352.

Supreme Court of Connecticut.

Argued Dec. 6, 1991.

Decided March 3, 1992.

Mary H. Lesser, Asst. State's Atty., for appellant (plaintiff).

Constance L. Chambers, Asst. Gen. counsel, Meriden, for appellee (named defendant).

Barry D. Guliano, Manchester, for appellee (defendant Journal Inquirer).

Robert H. Boone, pro se, the appellee (defendant).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and BERDON, JJ.

PETERS, Chief Justice.

The dispositive issue in this appeal is whether the substituted plaintiff, Richard N. Palmer, chief state's attorney, was aggrieved by the decision of the defendant freedom of information commission (FOIC) determining that General Statutes § 1-19(a) of the Freedom of Information Act (FOIA) ¹ requires the disclosure of an arrest report during the pendency of a criminal prosecution. The dispute underlying this appeal arose after the chief of police of the town of Windsor Locks refused to release publicly a police report concerning the arrest of two individuals. A newspaper editor filed a complaint with the FOIC seeking disclosure of the report. Although the criminal matter had been disposed of and the chief of police had released the arrest report by the time the FOIC rendered its decision on the matter, the FOIC determined that the police chief should have disclosed the arrest report when it was first requested and ordered the police department to comply fully with the disclosure requirements of § 1-19(a) in the future. The plaintiff, who had been denied party status in the FOIC proceeding, appealed the decision to the Superior Court. The Superior Court granted the FOIC's motion to dismiss the appeal upon concluding that the plaintiff had not been aggrieved by the FOIC decision. The plaintiff appealed to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023. We reverse.

The facts underlying the plaintiff's appeal are undisputed. On September 12, 1989, the Windsor Locks police arrested two persons who were distributing racist and anti-Semitic literature in front of a convenience store. The police charged one with possession of a dangerous weapon, and the other with reckless endangerment. The following day, Donald Michak, a reporter from the Journal Inquirer, asked for the arrest report pertaining to this incident. Following a consultation with the local state's attorney's office, the chief of police advised Michak that, because the criminal case was pending, he would not release the arrest report.

On September 19, 1989, Robert H. Boone of the Journal Inquirer filed a complaint with the FOIC claiming that the chief of police had violated § 1-19(a) of the FOIA by his refusal to release the arrest report. At the March 1, 1990, FOIC hearing on the matter, the chief of police testified that his nondisclosure of the requested report was based on the need to protect witnesses and to safeguard any further investigation.

After the hearing officer issued his proposed decision requiring disclosure, the chief of police asked that the hearing be reconvened. On June 14, 1990, the plaintiff filed a motion to intervene as a party before the FOIC. At its regular meeting on June 27, 1990, the FOIC voted to reconvene the hearing and granted the plaintiff intervenor status, but not party status.

At the reconvened hearing held on July 30, 1990, the plaintiff claimed that the arrest report was protected from unconditional disclosure pursuant to the statutes and rules of discovery in General Statutes § 54-86b, ² Practice Book §§ 746, 752 and 753, ³ General Statutes §§ 1-19(b)(3) and (4), 1-19b(b), and 1-20b ⁴ of the FOIA. Citing article 23 of the amendments to the Connecticut constitution ⁵ and General Statutes §§ 51-276 ⁶ and 51-286(d) and (e), ⁷ the plaintiff also claimed that the chief of police was acting as the plaintiff's agent. ⁸

The FOIC issued its final decision on September 19, 1990. It concluded that no agency relationship existed between the police and the plaintiff, and that arrest records in general were public records within the purview of the FOIA. The commission then concluded that, except for the names and addresses of witnesses, the arrest report at issue was not exempt from disclosure and, accordingly, that the chief of police had failed to provide the arrest report promptly as required by § 1-19(a). The FOIC ordered the chief of police to "comply with the disclosure requirements of § 1-19(a)," and cautioned him "to take care to comply with the law in the future or [he] may risk further consequences for [his] continuing disregard of the law."

The chief of police and the plaintiff each filed separate appeals in the Superior Court. ⁹ In his appeal, the plaintiff claimed that the FOIC had improperly denied him party status and had improperly concluded that police arrest reports were disclosable pursuant to § 1-19(a) of the FOIA during the pendency of a criminal case. The FOIC moved to dismiss the appeal alleging that the plaintiff lacked standing pursuant to § 1-21i. ¹⁰ The trial court conducted a hearing on the motion that focused primarily on the issue of whether the plaintiff, not having been named a party in the FOIC hearing, could appeal the decision. In its memorandum of decision, the trial court concluded that "the FOIC's argument that [the plaintiff] lacks standing to appeal the FOIC's order solely on the basis that he lacks 'party status' is unavailing on the facts of this case." ¹¹ It went on, however, to conclude that the plaintiff was not aggrieved and therefore lacked standing because: (1) the prospective FOIC order was directed solely to the chief of police and thus any harm to the plaintiff was merely speculative, and (2) the plaintiff "has failed to allege facts that would, if proved, show that he is aggrieved as a matter of law."

The plaintiff filed a motion to reconvene and to reargue maintaining that there had never been a dispute over aggrievement, and that he had not had the opportunity to present a case on that issue. ¹² The court heard argument on the motion, but declined to reconvene the case and to find aggrievement.

On appeal to this court, the plaintiff alleges that the trial court took too narrow a view of aggrievement in this case. Despite the fact that the FOIC order was both prospective and addressed to the chief of police, the plaintiff claims that he is aggrieved because: (1) the release of an arrest report potentially has a prejudicial effect on a pending criminal prosecution; (2) requiring disclosure of arrest reports pursuant to the FOIA conflicts with the rules of discovery that an arrest record is a statement of a witness that is not disclosable until the witness has testified; see State v. Cohane, 193 Conn. 474, 494 n. 15, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984); (3) the FOIC's decision violates an exception under the FOIA for records used for strategy and negotiations in pending litigation; and (4) the decision eliminates the criminal justice division's exemption from the FOIA. We conclude that the plaintiff is aggrieved by the FOIC order.

Aggrievement is essentially an issue of standing. Unless a plaintiff can establish that he is aggrieved by a decision of an agency, he has no standing to appeal. Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978); see also Rose v. Freedom of Information Commission, 221 Conn. 217, 230, 602 A.2d 1019 (1992). In administrative appeals filed pursuant to § 1-21i(d), we have adopted a test for aggrievement that requires a plaintiff to show: "(1) a specific personal and legal interest in the subject matter of the FOIC decision; and (2) a special and injurious effect on this specific interest." Board of Pardons v. Freedom of Information Commission, 210 Conn. 646, 649, 556 A.2d 1020 (1989); see also Rose v. Freedom of Information Commission, supra, 221 Conn. at 230, 602 A.2d 1019; State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 299-300, 524 A.2d 636 (1987).

This fundamental test is not to be mistaken for a formalistic and rigid formula, applied without regard to its purpose. We have consistently stated that "[s]tanding is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Internal quotation marks omitted.) Rose v. Freedom of Information Commission, supra, 221 Conn. at 223, 602 A.2d 1019; Board of Pardons v. Freedom of Information Commission, supra, 210 Conn. at 648-49, 556 A.2d 1020. " 'As long as there is some direct injury for which the plaintiff seeks redress, the injury that is alleged need not be great....' " Board of Pardons v. Freedom of Information Commission, supra, 649, 556 A.2d 1020. quoting Maloney v. Pac, 183 Conn. 313, 321, 439 A.2d 349 (1981). Moreover, "[a]ggrievement is established if there is some possibility, as distinguished from a certainty, that some legally protected interest ... has been adversely affected." (Internal quotation marks omitted.) Rose v. Freedom of Information Commission, supra, 221 Conn. at 230, 602 A.2d 1019.

In numerous counts of his complaint, the plaintiff properly pleaded his claims of aggrievement. "It was the function of the trial court to determine ... first, whether the plaintiff['s] allegations if they should be proved would constitute aggrievement as a matter of law, and second, if as a matter of law they would constitute aggrievement, then whether [the] plaintiff proved the truth of his allegations." Nader v. Altermatt, 166 Conn. 43, 54-55, 347 A.2d...