Commissioner of Emergency Services and Public Protection v. Freedom of Information Commission

          Argued March 1, 2018

         Procedural History

         Appeal from the decision of the named defendant determining that the named plaintiff et al. had violated the requirements of the Freedom of Information Act and ordering, inter alia, that they comply with those requirements by disclosing certain records to the defendant The Hartford Courant Company et al., brought to the Superior Court in the judicial district of New Britain, where the court, Schuman, J., granted the motion to intervene as a plaintiff filed by the Division of Criminal Justice; thereafter, the case was tried to the court, Schuman, J.; judgment sustaining the appeal, from which the named defendant and the defendant The Hartford Courant Company et al. filed separate appeals, which were subsequently consolidated. Reversed; judgment directed

          Victor R. Perpetua, principal attorney, for the appellant (named defendant).

          William S. Fish, Jr., with whom, on the brief, was Alexa T. Millinger, for the appellants (defendant The Hartford Courant Company et al.).

          Steven M. Barry, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, and Jane R. Rosenberg, solicitor general, for the appellees (named plaintiff et al.).

          Palmer, McDonald, Robinson, Mullins and Kahn, Js. ^[*]

          OPINION

          MULLINS, J.

         Pursuant to statute (§ 1-210 [a]), ‘‘[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency . . . shall be public records and every person shall have the right to . . . receive a copy of such records . . . .''

         The plaintiffs, the Commissioner of Emergency Services and Public Protection and the Department of Emergency Services and Public Protection, appealed from the decision of the named defendant, the Freedom of Information Commission, ordering the disclosure, pursuant to the Freedom of Information Act (§ 1-200 et seq.), of certain documents to the defendant newspaper and the defendant reporter. The documents related to a high profile school shooting in this state and were lawfully seized as part of a criminal investigation. In ordering disclosure, the commission concluded that, in light of heightened public interest in the shooting, the documents related to the conduct of the public's business, and, therefore, constituted public records under the act. The commission also concluded that the plaintiffs had failed to prove that the documents were otherwise exempt from disclosure. On appeal from the commission's decision, the trial court concluded that the documents constituted public records under the act because they related to the conduct of the public's business. The trial court further concluded, however, that the statutes (§§ 54-33a through 54-36p) governing searches and seizures by the police shielded from disclosure all seized property not used in a criminal prosecution, and, therefore, the state law exception set forth in § 1-210 (a) was satisfied. The trial court thus determined that the documents were exempt from disclosure and rendered judgment sustaining the plaintiffs' administrative appeal, from which the defendants appealed. Held:

         The trial court incorrectly concluded that the requirements of the state law exception set forth in § 1-210 (a) were satisfied and that the documents, therefore, were exempt from disclosure under that exception: the search and seizure statutes are entirely silent on the issues of confidentiality, copying, and disclosure to the public and, accordingly, could not form the basis for an exception under § 1-210 (a), as this court's review of relevant case law established that, in order for the ‘‘otherwise provided . . . by state statute'' language in § 1-210 (a) to apply, the underlying statute, by its express terms, must address confidentiality or otherwise limit the disclosure, copying, or distribution of the documents at issue; moreover, although limiting the disclosure of seized documents to protect the privacy of their owner may be preferable, particularly if a criminal proceeding does not ensue, this court could not impose a duty of confidentiality or a restriction on disclosure that was not expressly required by the search and seizure statutes, and this court's conclusion was also supported by the statute (§ 1-215 [b]) regulating the disclosure of personal possessions seized during an arrest and by the statute (§ 1-210 [b] [3]) providing other detailed exemptions for records of law enforcement agencies.

         The plaintiffs could not prevail on their claim that the judgment of the trial court could be affirmed on the alternative ground that the documents were not subject to disclosure because they did not constitute public records under the act; documents that are not created by an agency but come into its possession because there was probable cause to believe that they constitute evidence of a criminal offense relate to the conduct of the public's business and, therefore, constitute public records within the meaning of the act.

         The central issue in this appeal is whether the search and seizure statutes, General Statutes §§ 54-33a through 54-36p, provide a basis for an exemption from the disclosure requirements of the Freedom of Information Act (act), General Statutes § 1-200 et seq. Specifically, we must decide whether the trial court improperly concluded that the search and seizure statutes satisfy the requirements set forth in General Statutes § 1-210 (a), ^[1] which exempts documents from disclosure under the act that are ‘‘otherwise provided by any federal law or state statute . . . .'' (Emphasis added.) We conclude that the search and seizure statutes do not meet the requirements set forth in § 1-210 (a) and, accordingly, reverse the judgment of the trial court.

         The following facts, as found by the trial court, and procedural history are relevant to the present appeal. In January, 2014, the plaintiffs, the Commissioner of Emergency Services and Public Protection and the Department of Emergency Services and Public Protection, ^[2] received a request under the act from the defendant The Hartford Courant Company (Courant), and its reporter, the defendant David Altimari. In this request, the Courant and Altimari sought copies of certain documents referred to in the report prepared by the Connecticut State Police on the shooting that took place at Sandy Hook Elementary School on December 14, 2012. More specifically, the trial court's memorandum of decision notes that this request sought, inter alia, the following documents from the department: a spiral bound book written by the shooter, Adam Lanza, entitled ‘‘The Big Book of Granny, '' ‘‘a photo of the class of 2002-2003 at Sandy Hook Elementary School, '' and a ‘‘spreadsheet ranking mass murders by name, number killed, number injured, types of weapons used, and disposition.'' (Internal quotation marks omitted.)

         The department did not file a timely response to this request. As a result, the Courant and Altimari filed a complaint with the named defendant, the Freedom of Information Commission (commission). After they filed that complaint, the department responded to the initial request by letter. In that letter, the supervisor of the department's legal affairs unit, Christine Plourde, stated that ‘‘there are no documents responsive to your . . . request'' because the request sought ‘‘access to or copies of . . . items of evidence that were seized or otherwise collected as part of the criminal investigation of the incident. Evidence collected as part of a criminal investigation does not constitute a public record under the [act].'' (Internal quotation marks omitted.) Notwithstanding this response, the commission held a hearing on the complaint.

         The parties in that administrative proceeding presented testimony, exhibits, and argument.^[3] Specifically, the department asserted that the documents were not subject to disclosure because they were not public records^[4] under the act insofar as they (1) do not relate ‘‘to the conduct of the public's business, '' (2) ‘‘are evidence under the control of the [J]udicial [B]ranch pursuant to the statutory scheme governing search warrants and seized property, '' (3) are the private property of Adam Lanza or his mother, Nancy Lanza, and ‘‘disclosure would constitute an invasion of [their] personal privacy, '' and (4) are not included in the department's public records retention schedule because they are documents seized pursuant to a search warrant.

         The commission rejected the department's claims and concluded that the documents were public records under the act. Specifically, the commission rejected the department's claim that the documents did not relate ‘‘to the conduct of the public's business'' for purposes of § 1-200 (5). Instead, the commission determined that ‘‘in the aftermath of the shootings, there was heightened public interest in the shootings, in determining how and why such shootings occurred, and in preventing such a horrific crime from happening again.''

         The commission also found that, ‘‘[a]lthough the [department was] provided the opportunity to offer evidence that the requested documents are exempt from disclosure, [it] declined to do so. Instead, [the department] offered an affidavit from Plourde [averring] that, although she had not looked at the requested documents, she believed that some of the documents might be exempt from disclosure under [§] 1-210 (b) [(2), (10), (11) and (17)].'' Consequently, the commission found that the department ‘‘failed to prove that any of the requested documents are exempt from disclosure pursuant to any exemption.'' Accordingly, the commission ordered the department to provide a copy of the documents to the Courant and Altimari.

         Thereafter, the department filed an appeal from the commission's decision to the trial court pursuant to General Statutes § 4-183 of the Uniform Administrative Procedure Act (UAPA). The department also filed an application to stay enforcement of the final decision of the commission pending appeal, which was granted. The Division of Criminal Justice then filed a motion to intervene in the present case as a party plaintiff, which was granted by the trial court. See footnote 2 of this opinion.

         The trial court ultimately agreed with the commission that the documents were public records, concluding that ‘‘documents seized pursuant to a search warrant ‘[relate] to the conduct of the public's business' and, therefore, constitute public records under the act.'' Unlike the commission, however, the trial court then concluded that the documents were exempt from disclosure pursuant to § 1-210 (a).^[5] Specifically, the trial court concluded the search and seizure statutes ‘‘act as a shield from public disclosure of all seized property not used in a criminal prosecution.'' These appeals followed.^[6]

         On appeal to this court, the defendants assert that the trial court improperly concluded that the documents were exempt from disclosure pursuant to § 1-210 (a). Specifically, the defendants assert that the trial court improperly failed to follow this court's existing precedent interpreting § 1-210 (a), which requires that the express terms of federal law or state statute must address confidentiality or otherwise limit the copying or disclosing of the documents at issue. The defendants further assert that the trial court improperly failed to construe the exemption in § 1-210 (a) narrowly, as required by the act.

         In response, the department asserts that the trial court properly concluded that property seized pursuant to a search warrant is exempt from disclosure under the act. More particularly, the department claims that this court's existing precedent establishes that state statutes that conflict or create conflicting obligations with public disclosure fall within the exemption from disclosure under § 1-210 (a). The department further asserts, as an alternative ground for affirmance, that the documents are not public records under the act. We agree with the defendants.

         We begin with the relevant legal principles and standard of review. ‘‘This court reviews the trial court's judgment pursuant to the . . . UAPA . . . . Under the UAPA, it is [not] the function . . . of this court to retry the case or to substitute its judgment for that of the administrative agency. . . . Even for conclusions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . [Thus] [c]onclusions 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. . . . [Similarly], this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is . . . involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when a state agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference. . . . We have determined, therefore, that the traditional deference accorded to an agency's interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] a governmental agency's time-tested interpretation . . . . Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, 310 Conn. 276, 281-82, 77 A.3d 121 (2013). Even if time-tested, we will defer to an agency's interpretation of a statute only if it is reasonable; that reasonableness is determined by [application of] our established rules of statutory construction. . . . Dept. of Public Safety v. State Board of Labor Relations, 296 Conn. 594, 599, 996 A.2d 729 (2010).

         ‘‘When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . . Chairperson, Connecticut Medical Examining Board v.Freedom of Information Commission, supra, 310 Conn. 283. The issue of statutory ...