Lucarelli v. Freedom of Info. Com.m'n

• Citation: 135 Conn.App. 807,43 A.3d 237
• Decision Date: 29 May 2012
• Docket Number: No. 33336.,33336.
• Parties: Lamberto LUCARELLI v. FREEDOM OF INFORMATION COMMISSION et al.
• Court: Appellate Court of Connecticut

135 Conn.App. 807

43 A.3d 237

Lamberto LUCARELLI

v.FREEDOM OF INFORMATION COMMISSION et al.

No. 33336.

Appellate Court of Connecticut.

Argued Feb. 2, 2012.

Decided May 29, 2012.

Lamberto Lucarelli, pro se, the appellant (plaintiff).

Tracie C. Brown, principal attorney, for the appellee (named defendant).

LAVINE, BEACH and DUPONT, Js.

BEACH, J.

The self-represented plaintiff, Lamberto Lucarelli, appeals from the judgment of the trial court dismissing his administrative appeal from the decision of the defendant freedom of information commission (commission) ordering the defendant Old Saybrook police department (department) ¹ to produce certain records. The plaintiff claims that the court erred in concluding that (1) the commission properly determined that the department was not required to transcribe or to tape voice mail messages pursuant to General Statutes § 1–213(b)(3), (2) the commission's failure to rule on his request for subpoenas was not reversible error and (3) the commission properly declined to enforce the penalty provision of General Statutes § 1–240(a). We affirm the judgment of the trial court.

The following facts, as found by the commission, and procedural history are relevant. In a letter dated June 29, 2009, the plaintiff requested from the department copies of four police reports, as well as “any and all other information regarding me or my affairs which may be in the possession of the [department] and which has not already been provided.” On July 9, 2009, Michael A. Spera, the chief of police, met with the plaintiff and provided copies of the four incident reports requested by the plaintiff. In an effort to understand the plaintiff's request, Spera showed the plaintiff how the department's computer system worked and printed a list from the computer showing each instance since 1997 in which the plaintiff's name appeared in the department's records. Spera then gave the plaintiff a copy of the printout free of charge.

Following the July 9, 2009 meeting, the plaintiff reviewed the four incident reports and believed that the department still retained additional records responsive to his request that had not been provided to him. By letter dated July 14, 2009, the plaintiff described the records he believed the department to have withheld from him. The letter consisted of forty-six numbered paragraphs in which the plaintiff asked questions regarding the existence of certain records. In a telephone conversation, Spera explained to the plaintiff that the department did not maintain the records that he was seeking.

By a letter of complaint filed July 31, 2009, the plaintiff appealed to the commission, alleging that the department had violated the Freedom of Information Act (act), General Statutes § 1–200 et seq., by failing to respond to his June 29, 2009 request. At an evidentiary hearing on November 10, 2009, the plaintiff testified that, by way of his June 29, 2009 letter, he sought not just the incident reports, but also all records related to the incident reports that might be kept in the case files associated with such incident reports. Spera testified at the hearing that he interpreted the June 29, 2009 request as a request for the police incident reports only and that he did not search for the related case files for additional records. The hearing officer found that there was a genuine misunderstanding as to the scope of the plaintiff's request. The hearing officer ordered the department to conduct an additional search for records in light of the plaintiff's testimony and further ordered that if such search revealed additional records responsive to the plaintiff's June 29 or July 14, 2009 requests, the department was to provide a copy of such records to the plaintiff and to the commission, along with an affidavit detailing the nature of the search, on or before December 4, 2009.

By letter dated December 4, 2009, the department provided the plaintiff and the commission with (1) an affidavit from Spera attesting that an additional search for records had been conducted and that all responsive records had been provided to the plaintiff, (2) a written response to each of the forty-six numbered requests made by the plaintiff in his July 14, 2009 letter and [135 Conn.App. 811]3) copies of additional records found in the search, specifically, the contents of case files corresponding to the four incident reports.

By letter dated December 23, 2009, the plaintiff objected to the department's December 4, 2009 letter. In the letter, the plaintiff observed that the records search was conducted by Spera, not by the individual police officers who created the reports at issue, and that the individual officers did not attest to the information contained in the reports. He argued further that the department had acted in bad faith because it failed to acknowledge a written statement by David Perrotti, a police officer with the department, in an incident report dated April 22, 2009, that Perrotti had “taped [the plaintiff's] voice mail message he had left for [him] on April 20, 2009,” and failed to disclose such tape recording.

In its final decision dated April 14, 2010, the commission found that the department's additional search for records was a diligent, good faith effort to comply fully with the plaintiff's June 29 and July 9, 2009 letters. The commission further found that the department had provided the plaintiff with all the requested records, except for the copy of the tape recording of the plaintiff's voice mail message that had been created by Perrotti. The commission concluded that the department's failure to disclose to the plaintiff that voice mail message recording violated General Statutes §§ 1–210(a) and 1–212(a). The commission found, however, that the department's failure to disclose the record was not intentional. The commission further concluded that the department did not violate the act in failing to transcribe, to tape or to record voice mail messages that may have existed on the department's voice mail system. The commission ordered the department to provide the plaintiff with a copy of the tape recording created by Perrotti, free of charge, if such tape still existed and, in the alternative, if the department no longer maintained that tape recording, to inform the plaintiff of such by letter. Additionally, the commission ordered the department to make a diligent search for tape recordings of any additional voice mail messages, to provide an affidavit to the plaintiff indicating the results of such search and to provide the plaintiff with a copy of any additional tape recordings it may find. The plaintiff filed a motion for reconsideration of the commission's decision, which was denied.

The plaintiff appealed to the Superior Court, alleging that the commission erred in (1) stating that the department did not have a statutory obligation to preserve voice mail communications, (2) not granting the plaintiff's request for subpoenas and (3) not assessing a penalty against the department in its order. The court rejected the plaintiff's arguments and dismissed the appeal. This appeal followed.

We first set forth our standard of review. “Our review of an agency's factual determination is constrained by General Statutes § 4–183(j), which mandates that a 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 ... clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.... This limited standard of review dictates that, [w]ith regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency.... An agency's factual determination must be sustained if it is reasonably supported by substantial evidence in the record taken as a whole.... With respect to questions of law, [w]e have said that [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.” (Citation omitted; internal quotation marks omitted.) Board of Education v. Commission on Human Rights & Opportunities, 266 Conn. 492, 503–504, 832 A.2d 660 (2003).

I

The plaintiff first claims that the court erred in concluding that the commission properly determined that an exception to the general rule requiring record retention, § 1–213(b)(3), applied to the department's voice mail messages.² We disagree.

The commission concluded that the department did not violate the act in failing to transcribe, to tape or otherwise to record voice mail messages that may have existed on the department's voice mail system. The commission found, however, that the department violated §§ 1–210(a) and 1–212(a) by failing, albeit unintentionally, to disclose to the plaintiff the voice mail message recording created by Perrotti³ and ordered the department to provide a copy of the tape if it still existed and to search for any additional tape recordings of voice mail messages.

The court rejected the plaintiff's argument that the department was required to transcribe voice mail messages and instead concluded that the commission did not err in its determination that the department did not violate the act in failing to transcribe, to tape or to record voice mail messages that may have existed on the department's voice mail system. In making this determination, the court relied on the exemption in § 1–213(b)(3) that provides that nothing in the act shall be deemed to require a public agency to transcribe the content of any voice mail message or to retain such...