Lindquist v. Freedom of Info. Comm'n

• Decision Date: 30 March 2021
• Docket Number: AC 42496
• Citation: 203 Conn.App. 512,248 A.3d 711
• Court: Connecticut Court of Appeals
• Parties: Richard LINDQUIST v. FREEDOM OF INFORMATION COMMISSION

203 Conn.App. 512

248 A.3d 711

Richard LINDQUIST

v.FREEDOM OF INFORMATION COMMISSION

AC 42496

Appellate Court of Connecticut.

Argued September 15, 2020

Officially released March 30, 2021

Richard Lindquist, self-represented, the appellant (plaintiff).

Paula Sobral Pearlman, commission counsel, with whom, on the brief, was Colleen M. Murphy, general counsel, Hartford, for the appellee (defendant).

Lynn D. Wittenbrink, assistant attorney general, with whom, on the brief, was William Tong, attorney general, for the appellee (intervening defendant).

Bright, C. J., and Alvord and Cradle, Js.

BRIGHT, C. J.

The self-represented plaintiff, Richard Lindquist, at all relevant times, a tenured professor at the defendant University of Connecticut Health Center (health center), appeals from the judgment of the trial court dismissing his appeal from the final decision of the defendant Freedom of Information Commission (commission), in which the trial court concluded that the commission correctly dismissed the plaintiff's request for certain documents of the health center relating to his annual performance review. On appeal, the plaintiff claims that (1) the trial court failed to consider whether the commission failed to apply various provisions of the Freedom of Information Act (act), General Statutes § 1-200 et seq., including General Statutes §§ 1-200 (6), 1-210 (b) (2), 1-213 and 1-225, and General Statutes (Rev. to 2015) § 1-214, and chapters 563 and 563a of the General Statutes, (2) the trial court improperly concluded that the commission properly applied § 1-210 (b) (1) and (e) (1) of the act to the records at issue, (3) the trial court improperly rejected the due process claim raised by the plaintiff, and (4) the commission failed to comply with General Statutes §§ 1-210 (b) (2) and 10a-154a. We agree, in part, with the plaintiff's second claim, as it relates to § 1-210 (e) (1), that he is entitled to judgment in his favor requiring the disclosure of the final individual comments and ratings by the committee members that were delivered to the dean of the University of Connecticut School of Medicine (dean), and, accordingly, we reverse the judgment of the trial court and remand the case to that court with direction to render judgment for the plaintiff. In light of our resolution on the basis of the plaintiff's second claim, we need not reach the plaintiff's other claims.

The following background is relevant to this appeal. In May, 2016, the plaintiff was a tenured faculty member of the Department of Pathology and Lab Medicine at the health center. As a faculty member, the plaintiff was annually evaluated pursuant to the health center's bylaws. During the evaluation process, a faculty member meets with his or her department's chairperson. The faculty member and the chairperson discuss the past year's performance and arrive at ratings for five categories. In particular, the chairperson indicates whether the faculty member's performance is "not acceptable," "marginal," "acceptable," or "superior" for the categories of education, research, administrative, transition, and excellence. Each of the individual evaluations is weighted by the percent effort for the category. On that basis, the chairperson then assigns an aggregate evaluation that corresponds to an overall evaluation of "superior," "acceptable," "marginal," or "not acceptable."

In the next step of the evaluation process, a file is prepared for the Merit Plan Executive Committee (committee) to review the chairperson's evaluation for consistency among all departments. An overall evaluation of "acceptable" does not require further action by the committee unless the faculty member contests the rating. In the event that a faculty member contests an overall evaluation of "acceptable," the chairperson's evaluation is subject to review by the committee.

Overall evaluations of "not acceptable," "marginal," or "superior" are reviewed by the committee. If the committee disagrees with the chairperson's evaluation after reviewing the file, it will recommend a different rating and refer the file to the dean for a final decision. The information provided to the dean includes a joint recommended rating by the committee and the final individual comments and ratings of the committee members regarding the person being evaluated. It is the committee members’ final individual comments and ratings regarding the plaintiff that are at issue in this appeal.

With this background in mind, we turn to the specific facts and procedural history relevant to the plaintiff's claims on appeal. In May, 2016, after completion of his most recent annual review, the plaintiff, relying on the act, sent to the respondents¹ a request via e-mail for "[c]opies of all documents and communications, including but not limited to, electronic and written [records] related to my [annual] review."² In response to the plaintiff's request, the health center disclosed 908 pages of records, within which it made various redactions. The redactions fell into two categories. First, the health center redacted any information that related to faculty members other than the plaintiff. Second, the health center redacted comments and ratings made by the individual committee members about the plaintiff's evaluation, their individual agreement or disagreement with the chairperson and with each other, and individual assessments of merit in each particular category and on an aggregate basis. The health center redacted the commentary on the basis that the disclosure of the redactions would have a potential substantial effect on the willingness of the individual members to participate in the evaluation process and that it otherwise was not required under the act.

On May 23, 2016, the plaintiff appealed to the commission, alleging that the respondents violated the act by failing to provide the plaintiff with the requested documents and communications. After the plaintiff appealed to the commission, the health center provided the plaintiff with approximately 200 additional pages of documents, some of which also contained redactions of the individual comments and ratings of the committee members regarding the plaintiff's evaluation. The additional records came primarily from the chairperson, the individual members of the committee, and the associate dean for faculty affairs. The redactions at issue before the commission were those that redacted the comments and ratings by the individual members of the committee about the plaintiff.

Three contested case hearings were held before the commission. At the hearings, the health center claimed that the redacted records were exempt from disclosure pursuant to § 1-210 (b) (1), which provides that nothing in the act should be construed to require the disclosure of preliminary drafts or notes provided that the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure. See General Statutes § 1-210 (b) (1). Scott Simpson, the freedom of information officer for the health center, testified that the final individual comments and ratings by the committee members regarding the plaintiff were not disclosed because they are made as part of the deliberative process prior to the final joint committee recommendation. According to Simpson, this information consists of deliberations about the plaintiff's ratings and the members’ individual agreements or disagreements prior to providing a collective recommendation to the dean.

Simpson also provided the following testimony as to the purpose of the committee. The committee guards against bias and inconsistency in the ratings. The committee makes a generic or committee based recommendation that may reflect, generally, the individual comments made by the committee during the deliberative process. Simpson also testified that a single member cannot make a recommendation to the dean. Individual comments and ratings are maintained by Richard Simon, the nonvoting plan administrator of the annual review. After the committee arrives at a final joint recommendation, the committee recommendation and the printout of the final individual comments and ratings of the committee members are submitted to the dean, who makes the final decision. The dean sees the final comments and ratings by the committee members and the joint recommendation, the latter of which has been disclosed to the plaintiff.

At the second case hearing, Simon testified that a chairperson's evaluation will be reviewed by a three member committee in certain scenarios. If the majority of the three member committee agrees with the chairperson's evaluation, then Simon is authorized to approve the chairperson's evaluation without the dean's final review. During Simon's testimony, Simpson interjected that if the majority of the three member committee cannot agree with the chairperson's evaluation, then the full ten member committee reviews the evaluation. In the plaintiff's case, on at least one occasion, the three member committee did not agree with the chairperson's preliminary evaluation, so the full committee reviewed the evaluation.

Simon also described the committee's review process. The review process involves committee members submitting comments and proposed ratings to a database on a website. Members can reply to each other's comments. Furthermore, committee members can change their comments and proposed ratings throughout the process. They can also request changes by e-mailing Simon, who enters the changes into the database. Members can also request a change if certain items are flagged for discussion, where upon such a request, a meeting takes place where the committee members can change their votes. Any changes made to the comments or ratings during the deliberative process effectively write over the previous comments and ratings, deleting them from the database. After the committee members have completed their commenting process, the...