Sobocinski v. Freedom of Information Com'n, 13703

• Decision Date: 28 November 1989
• Docket Number: No. 13703,13703
• Citation: 566 A.2d 703,213 Conn. 126
• Court: Connecticut Supreme Court
• Parties: Nancy SOBOCINSKI v. FREEDOM OF INFORMATION COMMISSION.

Page 703

566 A.2d 703

213 Conn. 126

Nancy SOBOCINSKI v. FREEDOM OF INFORMATION COMMISSION.

No. 13703.

Supreme Court of Connecticut.

Argued Oct. 11, 1989.

Decided Nov. 28, 1989.

Lawrence Russ, Asst. Atty. Gen., with whom, on the brief, was Clarine Nardi Riddle, Atty. Gen., for appellant (intervening defendant).

Bruce Levin, Orange, with whom, on the brief, was Robert C. Pinciaro, Trumbull, for appellee (plaintiff).

Victor Perpetua, Com'n Counsel, Hartford, for appellee (defendant).

Before PETERS, C.J., and SHEA, GLASS, COVELLO and HULL, JJ.

COVELLO, Justice.

This is an appeal from a decision of the Superior Court which held that the defendant freedom of information commission (FOIC) erred in dismissing the plaintiff's complaint. The dispositive issue is whether the Freedom of Information Act, in General Statutes § 1-19b(b), ¹ prohibits disclosure of information or documents to parties involved in pending litigation with the state or its agencies. As the issue has become moot while the appeal here was pending, we order that appeal dismissed and the judgment of the Superior Court vacated, and we remand the case to that court with direction to render a judgment of dismissal of the appeal from the FOIC's decision.

The relevant facts are undisputed. On or about July 7, 1986, the plaintiff, Nancy Sobocinski, pursuant to General Statutes § 13a-144, ² filed suit against the intervening defendant, J. William Burns, commissioner of transportation, in connection with a motor vehicle collision. In her suit the plaintiff alleged, inter alia, that the overhead traffic control signals at the intersection of the Boston Post Road and Lambert Road in Orange were not functioning and that the state knew or should have known that the signals were not operating and should have taken corrective measures.

By interrogatories and requests for production dated September 11, 1986, the plaintiff requested the commissioner to produce copies of all documents relating to failures or malfunctions of the overhead traffic signals at the Boston Post Road and Lambert Road intersection between August 1, 1974, and August 1, 1984. The plaintiff also submitted an interrogatory asking whether on August 1, 1984, the commissioner or any department of transportation agents, servants or employees had any procedure in place whereby they would be notified if there were malfunctions of traffic control signals over which they had control and maintenance responsibility.

On September 23, 1986, the commissioner filed notice in the trial court of his objections to the plaintiff's September 11 interrogatories and requests for production. On October 13, 1986, the plaintiff made a written request to the commissioner, pursuant to the Freedom of Information Act (FOIA), General Statutes § 1-18a et seq., requesting essentially the same documents the plaintiff had requested in her September 11 discovery requests. ³ On November 7, 1986, the commissioner filed a motion for a protective order with the trial court, seeking to be relieved of the obligation to produce the documents requested in the plaintiff's September 11 discovery request. On November 24, 1986, the motion was argued and denied. The trial court found that there was no need for a protective order since there had been no hearing on the commissioner's objections and thus he was as yet under no obligation to comply with the plaintiff's discovery requests.

On November 12, 1986, on the advice of counsel, the commissioner denied the plaintiff's October 13 request, made pursuant to the FOIA, on the ground that the request referred to pending litigation. On December 8, 1986, the plaintiff filed a complaint against the commissioner with the FOIC challenging the commissioner's denial of her request for the documents and seeking to compel their production. On February 26, 1987, a full contested hearing on the matter was conducted before the FOIC. On April 8, 1987, the FOIC dismissed the plaintiff's complaint, concluding that the commissioner's failure to produce the records sought by the plaintiff in her October 13, 1986 request did not violate General Statutes §§ 1-15 or 1-19(a), ⁴ and that he was exempted from disclosing the requested documents under § 1-19b(b) since the production of the records requested would affect the rights of litigants under the laws of discovery of this state.

On April 22, 1987, pursuant to General Statutes §§ 1-21i(d) and 4-183, ⁵ the plaintiff appealed the decision of the FOIC to the Superior Court. The commissioner intervened in the administrative appeal as an additional defendant. On December 7, 1988, the trial court ruled that granting the plaintiff's request would not affect the rights of the litigants under the state's discovery laws. The court concluded that the FOIC had erred in dismissing the plaintiff's complaint, and remanded the case for further proceedings consistent with its decision. On January 13, 1989, the defendant commissioner appealed to the Appellate Court. We then transferred the matter to ourselves pursuant to Practice Book § 4023. On October 3, 1989, while this appeal was pending, the plaintiff withdrew her underlying civil action against the commissioner.

Where the actions of the parties themselves cause a settling of their differences, the case becomes moot. See, e.g., Heitmuller v. Stokes, 256 U.S. 359, 362-63, 41 S.Ct. 522, 523-24, 65 L.Ed. 990 (1921); Nader v. Altermatt, 166 Conn. 43, 56, 347 A.2d 89 (1974); Southbury v. American Builders, 162 Conn. 633, 634, 295 A.2d 566 (1972). Mootness applies to situations where events have occurred during the pendency of an appeal that make an appellate court incapable of granting practical relief through a disposition on the merits. State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 181, 527 A.2d 688 (1987). It is well settled that the existence of an actual controversy is an essential requisite to appellate jurisdiction. See State v. Smith, 207 Conn. 152, 178, 540 A.2d 679 (1988); Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985); State v. Nardini, 187 Conn. 109, 111-12, 445 A.2d 304 (1982); Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 249, 440 A.2d 310 (1982); Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979); Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944). An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. Southbury v. American Builders, Inc., supra, 162 Conn. at 634, 295 A.2d 566. This court will not decide moot questions where there is no actual controversy or where no actual or practical relief can follow from their determination. Shays v. Local Grievance Committee, supra, 197 Conn. at 571, 499 A.2d 1158; Waterbury Hospital v. Connecticut Health Care Associates, supra, 186 Conn. at 249-50, 440 A.2d 310; Scalo v. Mandanici, 179 Conn. 140, 146-47, 425 A.2d 1272 (1979); Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 452, 352 A.2d 291 (1974).

The plaintiff argues, however, that the instant proceeding involves a moot question that is "capable of repetition, yet evading review." See Weinstein v. Bradford, 423 U.S. 147, 148-49, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975); CEUI v. CSEA, 183 Conn. 235, 249, 439 A.2d 321 (1981). In Delevieleuse v. Manson, 184 Conn. 434, 437, 439 A.2d 1055 (1981), we stated that this principle was not the sole justification for reviewing an admittedly moot case but was merely one factor to be considered when faced with a potentially moot matter. We identified other relevant factors, including: (1) the public importance of the question presented; (2) whether an ongoing program of the state's penal or civil system is affected; and (3) whether the plaintiff could be affected similarly in the future. Delevieleuse v. Manson, supra, at 437, 439 A.2d 1055; see also Shays v. Local Grievance Committee, supra, 197 Conn. at 572-73, 499 A.2d 1158; Waterbury Hospital v. Connecticut Health Care Associates, supra, 186 Conn. at 253 n. 5, 440 A.2d 310.

After considering these factors we are not persuaded that this case merits review. Since this action involves a now-withdrawn personal injury claim arising out of a single discrete automobile accident we are unable to discern any ongoing program that is affected. Because of the nature of the cause of action, we are further unable to discern how the plaintiff herself could be affected similarly in the future, and there is nothing in the record to suggest that its repetition in the future would be probable. We conclude, therefore, that the question raised does not fall within the exception articulated in Delevieleuse v. Manson, supra.

The commissioner's appeal is dismissed, the judgment of the trial court is vacated and the case is remanded to that court with direction to dismiss the plaintiff's appeal for mootness.

1 General Statutes (Rev. to 1987) § 1-19b(b) provided: "Nothing in sections 1-15, 1-18a, 1-19 to 1-19b, inclusive, and 1-21 to 1-21k, inclusive, shall be deemed in any manner to affect the status of judicial records as they existed prior to October 1, 1975, nor affect the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state."

2 General Statutes (Rev. to 1985) § 13a-144 provided: "DAMAGES FOR INJURIES SUSTAINED ON STATE HIGHWAYS OR SIDEWALKS. Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator...