Town of Avon v. Freedom of Info. Comm'n

• Decision Date: 25 January 2022
• Docket Number: AC 44255
• Citation: 210 Conn.App. 225,269 A.3d 852
• Parties: TOWN OF AVON et al. v. FREEDOM OF INFORMATION COMMISSION et al.
• Court: Connecticut Court of Appeals

210 Conn.App. 225

269 A.3d 852

TOWN OF AVON et al.

v.FREEDOM OF INFORMATION COMMISSION et al.

AC 44255

Appellate Court of Connecticut.

Argued September 15, 2021

Officially released January 25, 2022

João Godoy, self-represented, the appellant (defendant).

Matthew D. Reed, Indianapolis, IN, commission counsel, for the appellee (named defendant).

Michael C. Harrington, Hartford, for the appellees (plaintiffs).

Bright, C. J., and Prescott and Vertefeuille, Js.

BRIGHT, C. J.

The self-represented defendant, João Godoy, appeals from the judgment of the trial court, which he claims sustained in part the administrative appeal filed by the plaintiffs, the town of Avon (town), the Avon Police Department (department), and the Avon Police Chief, from the final decision of the defendant Freedom of Information Commission (commission). The commission found that the plaintiffs violated the Freedom of Information Act (act), General Statutes § 1-200 et seq., by requiring Godoy to sign an acknowledgment form before releasing copies of the public records he had requested and ordered that the plaintiffs shall not require the signing of such a form as a condition precedent to the inspection or receipt of copies of public records. The court affirmed the commission's decision as to the provision of copies but reversed the commission's order "to the extent that" it applied to the inspection of original public records. We conclude that, because the only public records sought by Godoy in the present case were copies , the court's statements regarding original public records are merely dicta, and, consequently, Godoy is not aggrieved by the judgment. Accordingly, we dismiss the appeal for lack of jurisdiction.¹

The following undisputed facts and procedural history are relevant to our resolution of this appeal. In November, 2018, Godoy submitted three requests to the plaintiffs under the act. On November 16, 2018, he requested "copies of the police report from the investigation" into "concerns about unregistered vehicles at 11 Columbus Circle." On November 26, 2018, Godoy requested to inspect "any and all documents regarding employee [Lieutenant] Kelly [Walsh's] application for the position of police officer ...." Last, on November 29, 2018, Godoy requested to inspect "any and all documents regarding police matters ... including but not limited to police reports, or audio recording[s] of matters related to residents of 3 Columbus Circle ...."

On November 20, 2018, the plaintiffs denied the November 16, 2018 request on the ground that the case was under investigation. On December 4, 2018, after not receiving responses to his November 26 and 29 requests, Godoy filed an appeal to the commission, alleging that the plaintiffs had violated the act by denying and failing to respond to his requests for records. In a letter dated December 5, 2018, the plaintiffs responded to Godoy's November 16 and 29 requests. The plaintiffs notified Godoy that the investigation concerning 11 Columbus Circle was an open investigation that would be closed in approximately sixty days and told him to call Lieutenant Walsh after February 5, 2019, to schedule a time to inspect those records. As to the November 29, 2018 request, the plaintiffs informed him that there were two case reports concerning 3 Columbus Circle, one from 2015, which was available for inspection, and one from 2018, which remained an open investigation. As with the 11 Columbus Circle report, the plaintiffs told Godoy that the 2018 investigation would be closed in approximately sixty days and that he should call Lieutenant Walsh after February 5, 2019, to schedule a time to inspect the 2018 report.

On January 17, 2019, Godoy went to the department to inspect Lieutenant Walsh's personnel file, which he had requested on November 26, 2018. While there, Godoy signed an acknowledgment form at the department's request and inspected a redacted copy of the file. Godoy noted on the acknowledgment form that he reviewed only a few pages of the file due to the extensive redactions. On March 4, 2019, Godoy returned to the department to receive copies of the records concerning 11 Columbus Circle, which he requested on November 16, 2018. When Godoy arrived, Lieutenant John Schmalberger asked him to sign an acknowledgment form, but Godoy refused to do so. As a result, Lieutenant Schmalberger refused to release the copies to Godoy.

On March 6, 2019, the matter was heard by a hearing officer. At the hearing, Godoy testified regarding the March 4, 2019 incident at the department. He explained that "when I got to the ... [d]epartment, they requested me to sign some kind of statement, and I refused to sign that statement, and right after I refused to sign the statement, the lieutenant who was taking care of me for the inspection then said that the [department] wasn't ready to release those documents at the time, and then I just [left] .... I think that ... it is clear to persons here ... that you cannot put conditions prior to the release of these public documents." Lieutenant Schmalberger also testified regarding his interaction with Godoy on March 4, explaining that "Godoy ... asked if he could come view the documents ... number 3—excuse me, number 11 Columbus. ... I did not know if he was just going to inspect, or take a copy of, so I had prepared copies of the [records] for his inspection, and for him to take, if he wished to pay for them." (Emphasis added.) After the hearing, the plaintiffs submitted an affidavit from Lieutenant Schmalberger dated June 10, 2019, stating that all requested documents regarding 3 and 11 Columbus Circle had been provided to Godoy on March 22, 2019 (11 Columbus Circle), and April 18, 2019 (3 Columbus Circle).

The hearing officer issued a proposed final decision on October 10, 2019. The hearing officer concluded, in relevant part, that "there is no statutory provision within the ... [a]ct requiring a requester to sign an acknowledgement form as a condition precedent to inspecting or receiving copies of public records. It is found that it was improper for the [plaintiffs] to require [Godoy] to sign such form as a condition precedent to inspecting or receiving copies of the requested records.

It is concluded therefore that the [plaintiffs] violated [General Statutes] §§ 1-210 (a) and 1-212 (a) by failing to provide the complainant with prompt access to all requested records pertaining to 3 Columbus Circle and 11 Columbus Circle. Nevertheless, it is found that as of April 18, 2019, all requested records regarding 3 Columbus Circle and 11 Columbus Circle ... ha[ve] been provided to [Godoy]."² (Emphasis added.)

On October 10, 2019, the commission held a meeting to consider the proposed final decision pursuant to General Statutes § 4-179.³ In their brief to the commission, the plaintiffs represented that, "[in] an effort to maintain a record of what the [department] provides to individuals who request copies of documents, the department asks the individual to sign a receipt for the documents provided. This practice ensures that there is no dispute about what documents a person was given." (Emphasis added.) At the meeting, the plaintiffs’ counsel explained that the plaintiffs "had a practice of asking individuals who received documents to sign a receipt ... so that there's no further dispute of what is being provided." The plaintiffs asserted that the commission should not deem this practice illegal or a violation of the act simply because the act does not explicitly provide for such a practice.

One of the commissioners noted that the practice of requiring requesters to sign an acknowledgment form as a condition precedent to receiving documents "has a chilling effect on getting documents" and suggested that the commission add an order to the hearing officer's report prohibiting such a practice. At the conclusion of the meeting, the commission accepted the hearing officer's findings and agreed to amend the decision to order that the plaintiffs "shall not require requesters to sign a form as a condition precedent to the receipt of public records."

The plaintiffs filed an administrative appeal in the Superior Court pursuant to General Statutes § 4-183,⁴ challenging the commission's final decision. In their complaint, the plaintiffs alleged, inter alia, that the commission erred in finding that they violated the act by requiring Godoy to sign a receipt, and they requested that the trial court modify the commission's decision by holding that the "plaintiffs did not violate [the] act by requiring [Godoy] sign a receipt for the documents being provided to him." The plaintiffs claimed that "Godoy had previously signed for documents he had requested from the department, but refused to do so when asked to do so with respect to the 11 Columbus Circle documents. As such, the documents were not provided to him at that time."

Godoy did not participate in the appeal in the trial court, but the commission filed an answer and a brief in opposition to the plaintiffs’ appeal. In its brief, the commission argued that "[t]he plaintiffs’ policy requiring a requestor to sign an acknowledgment as a condition to the receipt of public records is a clear example of a rule that is prohibited under [the act]. [Godoy's] rights under the ... act were diminished when the plaintiffs refused to release public records solely because Godoy did not provide his signature on an acknowledgment form." Notably, in their briefs to the court, neither the plaintiffs nor the commission raised an argument regarding access to original public records.

On August 6, 2020, after a hearing, the court issued a memorandum of decision sustaining in part the plaintiffs’ appeal. The court noted that "Godoy requested copies of the records concerning 11 Columbus Circle but only to inspect the records concerning Lieutenant Walsh and 3 Columbus Circle. ... The plaintiffs here required Godoy to sign a receipt both for the inspection of records and for the...