Wilson v. Freedom of Information Commission

• Decision Date: 01 July 1980
• Citation: 435 A.2d 353,26 ALR4th 624,181 Conn. 324
• Court: Connecticut Supreme Court
• Parties: , 26 A.L.R.4th 624 Kenneth G. WILSON et al. v. FREEDOM OF INFORMATION COMMISSION et al.

Page 353

435 A.2d 353

181 Conn. 324, 26 A.L.R.4th 624

Kenneth G. WILSON et al. v. FREEDOM OF INFORMATION COMMISSION et al.

Supreme Court of Connecticut.

Argued Jan. 11, 1980.

Decided July 1, 1980.

Albert P. Lenge, Hartford, with whom was Mitchell W. Pearlman, Hartford, for appellant-appellee (named defendant).

John F. McKenna, Asst. Atty. Gen., with whom, on the brief, was Carl R. Ajello, Atty. Gen., for appellees-appellants (named plaintiff et al.).

Before COTTER, C. J., and BOGDANSKI, HEALEY, PARSKEY and KELLY, JJ.

ARTHUR H. HEALEY, Associate Justice.

This case presents an important question of first impression in this state that concerns the extent to which documents in the possession of state agencies are subject to public disclosure under our Freedom of Information Act (General Statutes §§ 1-15, 1-18a, 1-19 1-19b, 1-21, 1-21a, 1-21c 1-21k). In February of 1975, Kenneth G. Wilson, vice president for academic affairs at the University of Connecticut, appointed seven people to serve on a committee he had established and denominated the program review committee (hereinafter the PRC). The PRC was composed of the deans of the graduate school of engineering and the college of arts and sciences and four faculty members, one of whom was a member of the executive committee of the university senate and another who was a member of the university's budget committee. The function of the PRC was to review the operations of the various academic departments of the university and to make recommendations to Wilson aimed at improving efficiency in those departments. The recommendations, which took the form of periodic memoranda directed to Wilson, included changes in the existing administrative structure and programs within the university.

On September 14, 1976, William Finch, chairman of the federation of students and service organizations, which is the university's student government, directed a letter to Wilson seeking access to the documents received by him from the PRC. Wilson refused to permit the examination of these documents and Finch appealed that decision to the freedom of information commission (hereinafter the commission) pursuant to General Statutes § 1-21i(b). The commission, which never examined the documents, concluded that they were records subject to disclosure under § 1-19 of the Freedom of Information Act and ordered Wilson to provide Finch with access to them. Wilson, the university, and the state of Connecticut appealed the commission's decision to the Court of Common Pleas. ¹ See General Statutes § 1-21i(d).

The university claimed that the PRC documents were not public records; that if they were public records, they were exempt from the act's disclosure provision because they were (1) preliminary drafts or notes it is in the public's interest not to disclose; (2) files similar to personnel or medical files, the disclosure of which would constitute an invasion of personal privacy; and (3) records, reports or statements of strategy or negotiations with respect to collective bargaining. See footnote 4, infra. The trial court concluded that the PRC documents were not preliminary drafts or notes exempt from disclosure under General Statutes § 1-19(b)(1) but that there was evidence that these documents contained information similar to personnel or medical files, the disclosure of which would constitute an invasion of personal privacy, and that some of the documents contained records, reports or statements of strategy or negotiations with respect to collective bargaining. Accordingly, the trial court remanded the case to the commission with direction to conduct a hearing and to examine the PRC documents so as to determine which portions of them are not subject to disclosure under the above exemptions.

The commission has appealed and the university has cross appealed. The university claims that the court erred in concluding that the PRC documents are not exempt from disclosure as being preliminary drafts or notes. The commission claims that the trial court erroneously concluded that portions of the PRC documents are exempt from disclosure under the "similar file" and the "collective bargaining" exceptions to the act's disclosure mandate. The commission also claims that the court exceeded its authority by remanding the case to it with direction for further proceedings.

The Freedom of Information Act expresses a strong legislative policy in favor of the open conduct of government and free public access to government records. Representative Martin B. Burke, who sponsored the bill, commented on the floor of the house: "The legislature finds and declares that ... the people do not yield their sovereignty to the agencies which serve them. That the people in delegating authority do not give their public servants the right to decide what is good for them to know and that it is the intent of this law that actions taken by public agencies be taken openly and their deliberations be conducted openly and that the records of all public agencies be open to the public except in those instances where superior public interest requires confidentiality." 18 H. R. Proc., Pt. 8, 1975 Sess., p. 3911; see also the remarks of Senator Robert L. Julianelle then cochairman of the Government Administration and Policy Committee, 18 S.Proc., Pt. 5, 1975 Sess., pp. 2323-24.

As the remarks of Representative Burke indicate, however, the act does not confer upon the public an absolute right to all government information. Its careful delineation of the circumstances in which public meetings may be held in executive session; General Statutes § 1-18a(e); and in which agency records, or preliminary drafts or notes of such records, may properly remain undisclosed; General Statutes § 1-19(b); reflects a legislative intention to balance the public's right to know what its agencies are doing, with the governmental and private needs for confidentiality. Contrary to the suggestion of the commission, ² it is this balance of the governmental and private needs for confidentiality with the public right to know that must govern the interpretation and application of the Freedom of Information Act. The general rule, under the act, however, is disclosure. General Statutes § 1-19. Exceptions to that rule will be narrowly construed in light of the underlying purpose of the act; cf. Mazzola v. Southern New England Telephone Co., 169 Conn. 344, 355, 363 A.2d 170 (1975); Church of Scientology of California v. United States Department of the Army, 611 F.2d 738, 742 (9th Cir. 1979); and the burden of proving the applicability of an exemption rests upon the agency claiming it.

Subsection (a) of § 1-19 of the General Statutes contains the broad public right to inspect or copy agency records. ³ Subsection (b)(1) of § 1-19 ⁴ exempts from the purview of that right the following documents: "(P) reliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure." Both the commission and the trial court concluded that the PRC documents were not "preliminary drafts or notes." ⁵ They based this conclusion on the fact that the "documents in question are final drafts as far as the PRC is concerned, not subject to alteration"; they are "separate, distinct and completed documents in and of themselves." This analysis misses the mark and is inconsistent with the object of the exemption.

Although the legislative history on this portion of the act is not illuminating; see 18 H. R. Proc., Pt. 8, 1975 Sess., p. 3913; 18 S. Proc., Pt. 5, 1975 Sess., pp. 2322-36, it is clear from the language of § 1-19(b) that the exemption contemplates two types of agency documents: one that is "final" and another that is "preliminary." ⁶ The distinction between these two types of documents does not consist of the extent to which the person or persons from whom they originate expect to alter them. If that were the case, a research memorandum that an administrative official requests from an aide concerning a potential policy or staff change might be considered a "final document" subject to disclosure simply because the research aide does not intend to alter further the memorandum. It is clear that had the administrative officer prepared the memorandum himself but later decided to abandon the plan he studied, the memorandum would fall under the heading of "preliminary draft or notes." We do not think that the concept of preliminary, as opposed to final, should depend upon who generates the notes or drafts, or upon whether the actual documents are subject to further alteration. That the documents in question here were not subject to alteration, and hence were "final" vis-a-vis the PRC, is of little consequence if those documents do not have an operative and direct effect upon university policy or administration.

Instead, we believe that the term "preliminary drafts or notes" relates to advisory opinions, recommendations and deliberations comprising part of the process by which government decisions and policies are formulated. See N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 1516, 44 L.Ed.2d 29 (1975); Exxon Corporation v. Federal Trade Commission, 466 F.Supp. 1088, 1097 (D.C.D.C.1978) (construing 5 U.S.C. § 552(b)(5)); Carl Zeiss Stiftung v. V.E.B. Carl Zeiss Jena, 40 F.R.D. 318, 324 (D.D.C.1966), affirmed, 384 F.2d 979 (D.C.Cir.), cert. denied, 389 U.S. 952, 88 S.Ct. 334, 19 L.Ed.2d 361 (1967). Such notes are predecisional. They do not in and of themselves affect agency policy, structure or function. They do not require particular conduct or forbearance on the part of the public. Instead, preliminary drafts or notes reflect that aspect of the agency's function that precedes formal and informed decisionmaking. We believe that the legislature sought to protect the free and candid exchange of ideas, the uninhibited proposition and criticism of...