Argued
February 6, 2019
Procedural
History
Appeal
from the decision of the defendant, brought to the Superior
Court in the judicial district of New Britain, where the
court, Huddleston, J., granted in part the
defendant's motion to dismiss; thereafter, the court,
Young, J., dismissed the plaintiff's appeal,
from which the plaintiff appealed to this court.
Dismissed in part; reversed in part;
judgment directed.
Michael Aronow, self-represented, the appellant (plaintiff).
Kathleen K. Ross, commission counsel, with whom, on the
brief, was Colleen M. Murphy, general counsel, for the
appellee (defendant).
Alvord, Sheldon and Bishop, Js.
OPINION
BISHOP, J.
The
self-represented plaintiff, Michael Aronow, [1] appeals from the
dismissal by the trial court of his appeal from the final
decision of the defendant Freedom of Information Commission
(commission). Although, after a hearing, the commission
concluded that the University of Connecticut Health Center
(health center)[2] had violated the Freedom of Information
Act (FOIA), General Statutes § 1-200 et seq., in regard
to document requests made by the plaintiff, the plaintiff
appealed to the trial court from the orders and subordinate
findings made by the commission. On appeal from the judgment
of the court dismissing his appeal from the commission, the
plaintiff claims that the court erred in (1) concluding that
he was not aggrieved by the commission's decision to
decline to impose a civil penalty against the health center
for the FOIA violation, (2) dismissing his claim that the
commission improperly dismissed a previous FOIA complaint
filed by the plaintiff regarding an earlier document request
made to the health center, (3) concluding that there was
substantial evidence in the record to support the
commission's finding that the plaintiff had narrowed the
scope of his FOIA request, and (4) concluding that the
commission did not abuse its discretion by affording the
health center nine months to comply with its document
production order.
We
agree with the court's conclusions regarding the
plaintiff's first and second claims, and, accordingly,
affirm the judgment as to those claims. We conclude, however,
that the trial court erred in concluding that there was
substantial evidence to support the commission's finding
that the plaintiff had narrowed the scope of his original
FOIA request in regard to paragraph eleven of the
commission's final decision.[3] Accordingly, the judgment is
reversed in part, and the case is remanded to the trial court
with direction to remand to the commission with direction to
order that the health center comply expeditiously with the
plaintiff's original request, as narrowed only by
paragraph ten of the commission's final decision.
The
following facts and procedural history are relevant to our
resolution of this appeal. In his brief, the plaintiff
alleges that he ‘‘is an orthopaedic surgeon who
formerly worked for [the health center], against whom he
filed a whistleblower retaliation complaint before the
Commission on Human Rights and Opportunities' Office of
Public Hearings on November 14, 2012 (OPH/ WBR No. 2012-208),
which [has been] in the damages phase'' since he
received a favorable decision on liability. Additionally, on
March 31, 2012, the plaintiff separated from the health
center under disputed circumstances. In his whistleblower
complaint against the health center pursuant to General
Statutes § 4-61dd, the plaintiff alleged, inter alia,
that the health center took retaliatory actions leading to
his separation in response to certain actions he had
previously taken that caused him to fall out of favor with
health center supervisory personnel, such as his filing of a
grievance.[4]These allegations are supported by
proceedings from which we take judicial notice.[5]
On
August 19, 2013, the plaintiff e-mailed a FOIA request to
Scott Wetstone, a medical doctor employed by the health
center who acted as its freedom of information (FOI) officer.
The request was for production of all e-mails sent or
received by Jay R. Lieberman, a medical doctor formerly
employed by the health center, from July 1, 2009, to the date
of the request; all Microsoft Word and PDF documents created
or modified on Dr. Lieberman's health center computer
from July 1, 2010, to the date of the request; and a list of
all e-mails and documents that fell within this request but
were exempt from disclosure, and reasons why they were
exempt. On December 13, 2013, Dr. Wetstone e-mailed the
plaintiff to notify him that the previous FOIA
requests[6] that the plaintiff had made to the health
center were ‘‘essentially completed'' and
that he would begin working on the plaintiff's August 19,
2013 request. Dr. Wetstone also suggested in this e-mail
that, in light of the number and the nature of the documents
he had requested and the fact that the plaintiff had already
submitted an extensive discovery request to the health center
in a separate matter, the plaintiff should narrow the scope
of his request. The plaintiff subsequently agreed to exclude
a number of categories of records from the scope of his
request.
On
March 17, 2014, the plaintiff filed a complaint with the
commission; see Aronow v. University of
Connecticut Health Center, Freedom of Information
Commission, Docket No. FIC 2014-156 (February 4, 2015) (FIC
2014-156); alleging that he had not received the documents
requested, and that there had been no activity regarding his
request since December, 2013. On June 30, 2014, while that
matter was pending, the plaintiff sent an e-mail to Dr.
Wetstone requesting that he expedite the release of certain
requested documents that were relevant to the plaintiff's
pending Health Center Appeals Committee (committee)
appeal.[7] In July, 2014, the plaintiff and Dr.
Wetstone exchanged further e-mails regarding the use of a
Dropbox[8] account to provide the plaintiff with the
documents that he had requested for his committee appeal.
After having issues with obtaining the documents from the
designated Dropbox folder, the plaintiff acknowledged the
receipt of seventeen of the 139 requested documents that Dr.
Wetstone had informed the plaintiff he was sending.
On
December 16, 2014, over one year after acknowledging that he
would begin working on the plaintiff's August 19, 2013
request, and several months after the plaintiff had filed his
complaint in FIC 2014-156, Dr. Wetstone e-mailed the
plaintiff the following message: ‘‘Per our
discussion this morning, you have my personal commitment to
get . . . the documents [at issue in FIC 2014-156] no later
than the end of March 2015. . . . Later today, I will attempt
to find the files that I initially put in the drop box last
summer. I can't find them immediately and need to tend to
other things right now.''
On
February 4, 2015, the commission adopted a final decision
dismissing the plaintiff's FIC 2014-156 complaint for
lack of jurisdiction on the ground that the complaint had not
been timely filed pursuant to General Statutes § 1-206
(b) (1).[9] On that same day, the plaintiff
resubmitted to Dr. Wetstone the FOIA request that he had
originally requested on August 19, 2013. On February 17,
2015, the plaintiff again filed a complaint with the
commission; see Aronow v. University of
Connecticut Health Center, Freedom of Information
Commission, Docket No. FIC 2015-127 (October 28, 2015) (FIC
2015-127); alleging that the health center had violated the
FOIA by failing to promptly provide him with all of the
documents he had requested.
Subsequently,
on March 17, 2015, the plaintiff filed an appeal from the
commission's decision in FIC 2014-156 to the Superior
Court. On June 18, 2015, the court dismissed that appeal as
moot on the ground that the plaintiff's hearing in FIC
2015-127, in which he sought the same records, was pending
before the commission. A hearing on FIC 2015-127 was held
before a hearing officer on July 1, 2015. During the hearing,
Dr. Wetstone testified regarding the factors that were
crucial for determining how long it would take to comply with
the plaintiff's particular FOIA request. Dr. Wetstone
indicated that, at the time of the hearing, the health center
had ten active requests from the plaintiff, nine of which
would take a few months to resolve. He indicated, as well,
that the plaintiff's February 4, 2015 request was
‘‘by far the largest'' request he had
encountered in his fifteen year history of handling FOIA
requests. Additionally, Dr. Wetstone claimed that there was a
possibility that multiple FOIA exemptions would apply to the
requested documents and that each document needed to be
reviewed to determine whether any of those exemptions
applied. Dr. Wetstone also asserted that in addition to
acting as the FOI officer for the health center, he had
multiple other responsibilities that affected how long
compliance with the plaintiff's request would take.
Finally, Dr. Wetstone testified that many of the individuals
employed by the health center who would be required to search
for certain requested documents were also responsible for
providing direct patient care or for educating medical
students.
On
October 1, 2015, the hearing officer issued a proposed final
decision. On October 8, 2015, the health center provided the
plaintiff with some of the documents he had requested
together with a privilege log claiming exemptions as to
certain other documents.
On
October 28, 2015, the commission adopted the proposed final
decision of the hearing officer. The commission found that
the health center had violated General Statutes §§
1-210 (a)[10] and 1-212 (a)[11] by failing to comply
promptly with the plaintiff's records requests. In
addition, the commission found that the plaintiff's
February 4, 2015 request was identical to the August 19, 2013
request that had been at issue in FIC 2014-156, and took
administrative notice of certain findings of fact in FIC
2014-156 that were relevant to the determination of whether
the health center had violated the promptness requirement of
the FOIA. In taking notice of FIC 2014-156, the commission
determined that the plaintiff had agreed to exclude broadcast
e-mails, journal articles, and research data from his records
request (paragraph ten). The commission found, as well, that
the plaintiff had asked Dr. Wetstone, on June 30, 2014, to
release ‘‘whatever material [he had] collected to
date as well as the subset of documents that meet [certain
enumerated] search criteria . . . between July 1, 2010, and
August 14, 2012, '' which included his name and
variations of his name, the words ‘‘FOI,
'' ‘‘HCAC, ''
‘‘grievance, '' and ‘‘Appeals
Committee, '' and excluded e-mails sent to his own
e-mail at the health center (paragraph eleven). (Internal
quotation marks omitted.) The commission ordered that the
health center promptly comply with the plaintiff's
request, as narrowed by paragraphs ten and eleven of its
decision, that the health center make a good faith effort to
provide the plaintiff with the requested records on a rolling
basis, and that the health center work diligently to comply
fully within nine months of its decision. The commission also
suggested that the plaintiff refrain from making further
requests until the health center complied with the
commission's order.
On
December 9, 2015, the plaintiff appealed from the
commission's decision to the Superior Court, claiming
that the commission (1) improperly declined to impose civil
penalties on the health center, despite the length of the
delay and the fact that the commission had found the health
center to have violated the promptness requirement of the act
in relation to other requests made by the plaintiff; (2)
improperly suggested that the plaintiff refrain from making
further requests until the commission's order in FIC
2015-127 had been satisfied; (3) improperly allowed the
health center nine additional months to comply with the
plaintiff's request; (4) improperly found that the
plaintiff had narrowed the scope of his request, as stated in
paragraph eleven of its decision; (5) erred when it did not
provide any mechanism for an in camera review of documents
for which the health center claimed exemptions on October 8,
2015, after the proposed decision had been released; and (6)
erred when it dismissed his FIC 2014-156 com- plaint for lack
of jurisdiction.
On
October 25, 2016, the commission filed a motion to dismiss
the plaintiff's appeal, contending that the plaintiff was
not aggrieved by the commission's decision in his favor.
The commission also moved to strike certain claims for relief
if any portion of the appeal survived the motion to dismiss.
On May 8, 2017, the court granted the commission's motion
to dismiss as to the plaintiff's first and second claims,
but denied the motion as to the plaintiff's third and
fourth claims. Additionally, the court ordered the parties to
brief whether it lacked jurisdiction to consider the
plaintiff's fifth claim, and declined to review the
commission's inadequately briefed motion to strike as to
the plaintiff's sixth claim. In this decision, the court
made clear that the commission's October 28, 2015 order
was not stayed pending the disposition of the appeal.
Following this decision, the plaintiff alleged that the
health center notified him that it would begin complying with
his request, as narrowed pursuant to the commission's
order. The plaintiff also alleged that in June, 2017, the
health center had sent him two compact discs (CDs) containing
requested documents in partial compliance with the
order.[12]
On
January 5, 2018, after further considering the
plaintiff's third, fourth, fifth, and sixth claims, the
court dismissed the plaintiff's appeal. Specifically, the
court concluded that the commission had not abused its
discretion in giving the health center nine months to comply
with the plaintiff's records request because there was
substantial evidence before the commission to support the
reasonableness of its decision to order a rolling out of
information over a nine month period of time. The court
found, as well, that the plaintiff had agreed to narrow his
request, as described in paragraph eleven of the
commission's decision. The court concluded, as well, that
because the commission did not have the opportunity to
consider whether ...