Town of Windham v. Freedom of Information Com'n, 17064

• Decision Date: 28 April 1998
• Docket Number: No. 17064,17064
• Citation: 711 A.2d 738,48 Conn.App. 522
• Court: Connecticut Court of Appeals
• Parties: TOWN OF WINDHAM v. FREEDOM OF INFORMATION COMMISSION et al.

Page 738

711 A.2d 738

48 Conn.App. 522

TOWN OF WINDHAM v. FREEDOM OF INFORMATION COMMISSION et al.

No. 17064.

Appellate Court of Connecticut.

Argued Feb. 27, 1998.

Decided April 28, 1998.

Richard S. Cody, Hartford, for appellant (plaintiff).

Victor R. Perpetua, Commission Counsel, with whom, on the brief, was Mitchell W. Pearlman, General Counsel, for appellee (named defendant).

Steven Edelman, pro se, appellee (defendant).

Before FOTI, LAVERY and DALY, JJ.

FOTI, Judge.

This is an appeal by the plaintiff town of Windham from the judgment of the trial court dismissing its appeal from the decision of the defendant freedom of information commission. On appeal, the town claims that the trial court improperly determined that the affidavits of town employees and officers (1) are public records pursuant to General Statutes § 1-18a (d), (2) are not records pertaining to strategy and negotiations with respect to pending litigation pursuant to General Statutes § 1-19(b)(4), and (3) are not protected from disclosure by the attorney-client privilege. ¹ We agree that the affidavits are not public records pursuant to § 1-18a (d) and, therefore, reverse the judgment of the trial court.

The relevant facts are not in dispute. On November 17, 1994, a hearing was held before a commission hearing officer to consider the defendant Steven Edelman's complaints against the town and several of its officers and employees. At the hearing, the town's attorney proffered the sworn affidavits of certain town officials and employees. The hearing officer did not receive the affidavits into evidence and continued the matter to allow the affiants to testify in person.

On November 18, 1994, Edelman appeared at the office of the first selectman and requested from the town copies of affidavits signed by the town clerk, the executive secretary to the first selectman and the first selectman. The town clerk provided Edelman with a copy of her affidavit. The executive secretary informed Edelman that she did not have a copy of her affidavit. The first selectman, Walter Pawelkiewicz, denied Edelman's request by a letter dated November 22, 1994.

By letters of complaint filed with the commission on December 5, 1994, Edelman challenged the town's denial of his request for access to the affidavits. On April 18, 1995, the original case for which the affidavits had been prepared was adjudicated and resolved. ² The town's attorney subsequently provided Edelman with copies of the affidavits on June 30, 1995. ³

On July 20, 1995, Edelman's complaint was heard before a commission hearing officer as a contested case. The hearing officer concluded that the affidavits signed by the first selectman, his executive secretary and the town clerk are public records within the meaning of § 1-18a (d). The hearing officer also concluded that the affidavits are not exempt from disclosure pursuant to § 1-19(b)(4) and are not protected by the attorney-client privilege. On October 11, 1995, the commission approved the hearing officer's report and ordered that "[h]enceforth, the [town] shall strictly comply with the disclosure requirements of [General Statutes] §§ 1-15 and 1-19(a)." ⁴

The town appealed from the commission's decision. The trial court rendered judgment dismissing the appeal, and this appeal followed.

We first set forth our standard of review. "Judicial review of the conclusions of law reached administratively is ... limited. The court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in an abuse of discretion." (Internal quotation marks omitted.) Barnett v. Board of Education, 232 Conn. 198, 207, 654 A.2d 720 (1995). "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). Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement.... Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S.Ct. 781, 93 L.Ed.2d 819 (1986); see also New Haven v. Freedom of Information Commission, supra, at 773-74, 535 A.2d 1297; Wilson v. Freedom of Information Commission, 181 Conn. 324, 342-43, 435 A.2d 353 (1980).... Perkins v. Freedom of Information Commission, [228 Conn. 158, 164-65, 635 A.2d 783 (1993) ]." (Internal quotation marks omitted.) Connecticut Alcohol & Drug Abuse Commission v. Freedom of Information Commission, 233 Conn. 28, 39, 657 A.2d 630 (1995).

The town claims that the trial court improperly determined that the affidavits of town employees and officers are public records pursuant to § 1-18a (d). Section 1-18a (d) defines "[p]ublic records or files" as "any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method." In applying this statute to the facts found, the commission concluded that the affidavits of the town clerk, the executive secretary to the first selectman and the first selectman are "recorded information prepared and used by a public agency in the conduct of the public's business and, therefore, constitute public records...."

In its memorandum of decision, the trial court improperly concluded that the affidavits were received by town employees and officers, and, therefore, are public records within the meaning of § 1-18a (d). The commission did not address, as the trial court did, whether the affidavits were received by a public agency. Rather, the commission concluded that the affidavits were prepared and used by a public agency. "[T]he limited scope of review set forth in [General Statutes] § 4-183(j), ⁵ and expressed by our appellate courts, does not allow [the] result [reached by the trial court]. Here, the trial court improperly traveled a different path rather than determining whether the commission properly trod on the stepping stones of the path it took." Hartford v. Freedom of Information Commission, 41 Conn.App. 67, 74, 674 A.2d 462 (1996).

On the basis of on our thorough review of the record, we conclude that the commission's decision that the affidavits relate to the conduct of the public's business and were prepared and used by a public agency is not supported by substantial evidence. At the July 20, 1995 hearing held before a commission hearing officer, the town's attorney, Richard Cody, testified that the affidavits were prepared by his office to assist him in defending the town against a complaint filed by Edelman with the commission. Cody also testified that the affidavits were never admitted into evidence in the underlying action. This testimony was undisputed. In addition, Cody's testimony was corroborated by the November 22,...