Ottochian v. Freedom of Information Com'n

• Decision Date: 10 March 1992
• Docket Number: No. 14347,14347
• Citation: 604 A.2d 351,221 Conn. 393
• Court: Connecticut Supreme Court
• Parties: , 73 Ed. Law Rep. 713 Philip OTTOCHIAN v. FREEDOM OF INFORMATION COMMISSION et al.

Page 351

604 A.2d 351

221 Conn. 393, 73 Ed. Law Rep. 713

Philip OTTOCHIAN v. FREEDOM OF INFORMATION COMMISSION et al.

No. 14347.

Supreme Court of Connecticut.

Argued Dec. 6, 1991.

Decided March 10, 1992.

William J. Dolan, Hartford, for appellant (plaintiff).

Regina M. Hopkins-Griggs, Commission Counsel, with whom, on the brief, was Mitchell W. Pearlman, General Counsel, Hartford, for appellee (named defendant).

George L. Bozzi, Jr., pro se.

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

BERDON, Justice.

This is an administrative appeal from a decision of the defendant freedom of information commission (FOIC) ordering the superintendent of the Wallingford public school system to disclose, under the Freedom of Information Act (FOIA), ¹ portions of two pieces of correspondence concerning a violation of a Connecticut Interscholastic Athletic Conference (CIAC) regulation committed by Lyman Hall High School. The correspondence also contained comments about the performance and evaluation of the plaintiff, Philip Ottochian, a teacher, football coach and athletic director at the high school. The principal issue is whether the entire correspondence, portions of which concern matters of teacher performance and evaluation and portions of which concern nonevaluative information, is exempt from disclosure pursuant to General Statutes § 10-151c. ² The trial court dismissed the plaintiff's appeal from the FOIC's order of disclosure. He then appealed to the Appellate Court, and we transferred his appeal to this court pursuant to Practice Book § 4023. We affirm the judgment of the trial court.

The relevant facts are as follows. On November 4, 1988, a defendant, George L. Bozzi, Jr., requested that Robert Nicoletti, the superintendent of the Wallingford public school system (superintendent), provide him with copies of all correspondence between Lyman Hall High School and the CIAC concerning any violation of CIAC regulations by the school's football team in 1987. The superintendent denied the request, claiming that the documents were exempt from disclosure pursuant to General Statutes §§ 10-151c and 1-19(b)(2). ³ Bozzi filed a complaint with the FOIC.

The FOIC held a hearing and granted the plaintiff party status. At this hearing, Bozzi clarified his request, stating that he was seeking recorded information concerning the violations only and the subsequent reporting of those violations. He further stated that he was not seeking any information concerning an evaluation of the plaintiff's performance. After hearing testimony, the FOIC found that the requested information was contained in two letters, and that portions of those letters concerned the plaintiff's performance as the football coach, while other portions concerned a violation of the CIAC regulation and, therefore, did not evaluate the plaintiff's performance. ⁴ Although the FOIC concluded that § 1-19(b)(2) was inapplicable in this case, it decided that the evaluative information in the letters was exempt from disclosure pursuant to § 10-151c. The FOIC ordered the superintendent to provide Bozzi with redacted copies of the letters masking the evaluative portions.

The superintendent sent Bozzi redacted copies of the letters and Bozzi appealed to the FOIC alleging that the superintendent had failed to comply with its order in that he redacted information that was not evaluative. The FOIC held a second hearing and the plaintiff was again granted party status. At the hearing, the FOIC reviewed the redacted versions of the letters. The FOIC also conducted an in camera inspection of the original letters in their unredacted form and found that "much of the information the [superintendent] redacted [was] not evaluative within the meaning of § 10-151c." The FOIC concluded that the superintendent had failed to comply with its first order, and designated a line-by-line order specifying those portions of the letters that the superintendent should redact.

The plaintiff appealed the FOIC's decision to the Superior Court, and that court issued a stay of enforcement of the FOIC's order. After taking evidence and hearing argument, the trial court concluded that the findings of the FOIC were not clearly erroneous, arbitrary, capricious or an abuse of discretion. The trial court, therefore, dismissed the plaintiff's appeal.

In his appeal to this court, the plaintiff claims that when any evaluative information pertaining to a teacher appears in a document, the entire document is a "record" for purposes of § 10-151c, and, therefore, is exempt from disclosure. In the alternative, the plaintiff argues that, if § 10-151c does not bar disclosure of the document in its entirety, then the FOIC, before it may release a redacted version of the document, must first determine that it is "virtually impossible" to glean evaluative information from the nonevaluative portions of the document. We disagree with the plaintiff.

We review the merits of the plaintiff's claims in the context of two underlying principles. First, we note that judicial review of an administrative agency's action is governed by the Uniform Administrative Procedure Act; General Statutes § 4-166 et seq.; and that the scope of review is limited. Board of Education v. Freedom of Information Commission, 208 Conn. 442, 452, 545 A.2d 1064 (1988). Accordingly, we must decide, in view of all the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily or illegally, or abused its discretion. Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom of Information Commission, 212 Conn. 100, 104-105, 561 A.2d 429 (1989). "Conclusions 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." New Haven v. Freedom of Information Commission, 205 Conn. 767, 774, 535 A.2d 1297 (1988). "Neither this court nor the trial court may retry the case or substitute its own judgment for that of the [administrative agency]." (Internal quotation marks omitted.) Board of Education v. Freedom of Information Commission (II), supra, quoting, C & H Enterprises, Inc. v. Commissioner of Motor Vehicles, 176 Conn. 11, 12, 404 A.2d 864 (1978). ⁵

Second, it is well established that the general rule under the Freedom of Information Act is disclosure, and any exception to that rule will be narrowly construed in light of the "general policy of openness expressed in the FOIA legislation." Board of Education v. Freedom of Information Commission, supra, 208 Conn., at 450, 545 A.2d 1064. "The burden of proving the applicability of an exception to the FOIA rests upon the party claiming it." Rose v. Freedom of Information Commission, 221 Conn. 217, 232, 602 A.2d 1019 (1992).

I

General Statutes § 10-151c provides that records of teacher performance or evaluation maintained by boards of education are not discoverable pursuant to the FOIA. In exempting these records of teacher performance and evaluation, the legislature chose neither to provide criteria for determining what documents constitute such records nor to define the term "records." "When the legislature uses a broad term ... in an administrative context, without attempting to define that term, it evinces a legislative judgment that the agency should define the parameters of that term on a case-by-case basis." Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom of Information Commission, supra, 212 Conn., at 106, 561 A.2d 429. The FOIC, therefore, was left with the task of determining whether the letters in the present case were "records of teacher performance and evaluation" within the broad meaning of that term. The practical construction placed on the statute by the agency, if reasonable, is highly persuasive. Id.

In the present case, the FOIC's determination that the legislature did not intend to exempt from disclosure nonevaluative information from a letter pertaining to a teacher is reasonable, and thus, we will not disturb it. This court was presented with a similar situation in Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom of Information Commission, supra, in which we held that even though General Statutes § 7-314(b) exempted "operational" meetings of volunteer fire departments from the provisions of General Statutes § 1-21(a) of the FOIA that require meetings of public agencies be opened to the public, the "non-operational" portions of the meetings should be open. Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom of Information Commission, supra, at 106, 561 A.2d 429.

The plaintiff further claims for the first time on appeal that our decision in Chairman v. Freedom of Information Commission, 217 Conn. 193, 585 A.2d 96 (1991), is dispositive of the issue in this case. We are not persuaded. In Chairman v. Freedom of Information Commission, supra, this court held that the personnel evaluation of a state's attorney was exempt from disclosure pursuant to General Statutes § 1-19(b)(2) because the disclosure would constitute an invasion of his personal privacy. To establish the applicability of § 1-19(b)(2), the plaintiff must meet a two-fold burden of proof. "First, [he] must establish that the [letters] in question are within the categories of files protected by the exemption.... Second, [he] must show that disclosure of the records would constitute an invasion of personal privacy." (Internal quotation marks omitted.) Chairman v. Freedom of Information Commission, supra, at 196, 585 A.2d 96.

In the present case, the plaintiff failed to make this claim before the FOIC during the second hearing, and he did not pursue this claim before the trial court; accordingly, he is precluded from doing so at this time. See Burnham v. Administrator, 184 Conn. 317, 322-23, 439 A.2d 1008 (1981). Furthermore, there is nothing in the record to support the applicability of § 1-19(b)(2). First, the plaintiff has made no...