Aronow v. Freedom of Information Commission

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MICHAEL ARONOW v. FREEDOM OF
INFORMATION COMMISSION
(AC 41297)
Alvord, Sheldon and Bishop, Js.
Syllabus
The plaintiff appealed to this court from the judgment of the trial court
dismissing his appeal from the final decision of the defendant Freedom of
Information Commission. In connection with a whistleblower retaliation
complaint he had filed against his former employer, a health center, the
plaintiff had requested certain records from the health center under the
Freedom of Information Act (act) (§ 1-200 et seq.). After a delay in
receiving the records, the plaintiff filed a complaint in 2014 with the
commission, which was dismissed for lack of jurisdiction on the ground
it had not been timely filed. The plaintiff resubmitted his request for
the records and filed a second complaint with the commission in 2015,
alleging that the health center had violated the act by failing to promptly
provide him with all of the documents he had requested. Thereafter,
the plaintiff appealed from the commission’s decision regarding his 2014
complaint to the Superior Court, which dismissed the plaintiff’s 2014
complaint as moot on the ground that a hearing in the 2015 complaint, in
which he sought the same records, was pending before the commission.
Subsequently, the commission granted the plaintiff’s 2015 complaint in
part and concluded that the health center had violated the act by failing
to comply promptly with the plaintiff’s records requests, and the plaintiff
appealed to the Superior Court, which granted in part the commission’s
motion to dismiss the plaintiff’s appeal as to his first and second claims
and, after further considering the plaintiff’s remaining claims, rendered
judgment dismissing the plaintiff’s appeal. Held:
1. The plaintiff could not prevail on his claim that the trial court improperly
concluded that he was not aggrieved by the commission’s decision not
to impose a civil penalty against the health center; although the plaintiff
acknowledged that this court was bound by Burton v. Freedom of Infor-
mation Commission (161 Conn. App. 654), which addressed the precise
issue raised in this case and held that the plaintiff in that case was
neither classically nor statutorily aggrieved by the commission’s decision
not to impose a civil penalty because the decision did not violate a legal
interest of the plaintiff and there was no statutory authority that provided
the plaintiff with standing to appeal to the trial court from the commis-
sion’s failure to impose such a penalty, the plaintiff here attempted
to distinguish Burton, but his claim was speculative and lacked an
evidentiary foundation, and, therefore, the trial court did not err in
granting the commission’s motion to dismiss the plaintiff’s civil penalty
claim for lack of standing.
2. The trial court properly dismissed the plaintiff’s claim that his 2014 com-
plaint was improperly dismissed on the ground that he was not aggrieved
because the issues raised in that complaint were addressed in his 2015
complaint, the underlying matter in which he ultimately prevailed; con-
trary to the plaintiff’s assertion, the record indicated that the commission
did take the relevant facts of his 2014 complaint into consideration when
making its decision that the health center had violated the act, as the
commission not only found that the plaintiff’s requests for records were
identical, but it explicitly took administrative notice of the findings of
fact in the 2014 complaint that were relevant to its determination as to
whether the health center had promptly complied, and, therefore, the
plaintiff did not demonstrate how he was aggrieved.
3. The trial court erred in concluding that there was substantial evidence
in the record to support the commission’s finding that the plaintiff had
narrowed the scope of his request under the act with respect to para-
graph eleven of his complaint; there was no basis for the commission’s
order narrowing the plaintiff’s request for records as described in the
commission’s final decision, which was inconsistent with the record
and contravened the general policy of openness expressed within the
act, as the record revealed that the plaintiff had requested the health
center to expedite the most time sensitive portion of his request without
excluding the remainder of the records requested.
Argued February 6—officially released May 14, 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).
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 subordi-
nate 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 pen-
alty against the health center for the FOIA violation,
(2) dismissing his claim that the commission improperly
dismissed a previous FOIA complaint filed by the plain-
tiff 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 pro-
duction 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 commis-
sion’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 com-
mission’s final decision.
The following facts and procedural history are rele-
vant 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 liabil-
ity. Additionally, on March 31, 2012, the plaintiff sepa-
rated 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 infor-
mation (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 plain-
tiff to notify him that the previous FOIA requests6 that
the plaintiff had made to the health center were ‘‘essen-
tially 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 Connecti-
cut Health Center, Freedom of Information Commis-
sion, Docket No. FIC 2014-156 (February 4, 2015) (FIC
2014-156); alleging that he had not received the docu-
ments 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 expe-
dite 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 Dropbox8 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 seven-
teen of the 139 requested documents that Dr. Wetstone
had informed the plaintiff he was sending.
On December 16, 2014, over one year after acknowl-
edging 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 com-
plaint 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 Febru-
ary 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 indi-
cated, as well, that the plaintiff’s February 4, 2015
request was ‘‘by far the largest’’ request he had encoun-
tered 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 docu-
ment 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 pro-
posed final decision. On October 8, 2015, the health
center provided the plaintiff with some of the docu-
ments 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 com-
mission found that the health center had violated Gen-
eral 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 determina-
tion 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, jour-
nal 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 (para-
graph eleven). (Internal quotation marks omitted.) The
commission ordered that the health center promptly
comply with the plaintiff’s request, as narrowed by para-
graphs 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 sug-
gested that the plaintiff refrain from making further
requests until the health center complied with the com-
mission’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 mech-
anism 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 deci-
sion 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 noti-
fied 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 dis-
cretion in giving the health center nine months to com-
ply with the plaintiff’s records request because there
was substantial evidence before the commission to sup-
port 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 there should have been
an in camera review of the allegedly exempt documents,
the plaintiff had not exhausted his administrative reme-
dies, and, thus, that claim was not ripe for the
court’s consideration.
Finally, the court addressed the plaintiff’s claim
regarding his FIC 2014-156 complaint, which involved
his earlier records request to the health center. The
court understood this claim to be an assertion that
the plaintiff had relied on representations made by the
commission that his FIC 2014-156 complaint would be
considered at the hearing in FIC 2015-127 and that,
because of that representation, he did not timely appeal
the court’s disposition of his appeal with regard to his
FIC 2014-156 complaint. Specifically, the plaintiff’s
claim was understood to be an assertion that he was
aggrieved by the dismissal of FIC 2014-156 because the
issues in that earlier records request were not addressed
in FIC 2015-127 and the plaintiff had not received the
records he had sought in FIC 2014-156, which were the
same records as those had had requested in FIC 2015-
127, and that the commission should have considered
the health center’s delay in compliance as being sub-
stantially longer than it had found in its disposition of
FIC 2015-127. The court concluded that the plaintiff’s
claim was without merit after finding that the issues
that were the basis of the FIC 2014-156 complaint were,
in fact, addressed by the commission in FIC 2015-127.
The court also concluded that there was no evidence
in the record that the commission’s finding of a shorter
time period of delay was an abuse of discretion or
affected the outcome of the proceeding. This appeal
followed.13 Additional facts will be set forth as nec-
essary.
I
We first address the plaintiff’s claim that the court
erred in concluding that he was not aggrieved by the
commission’s decision not to impose a civil penalty
against the health center. Specifically, the plaintiff
claims that the court’s granting of the commission’s
motion to dismiss this claim for lack of standing was
improper because he was aggrieved by the health cen-
ter’s noncompliance with his FOIA requests and, there-
fore, had a direct interest in his attempt to have the
commission impose a civil penalty on the health center.
We are not persuaded.
We begin by setting forth the legal principles regard-
ing motions to dismiss and standing. Because this claim
‘‘arises from a motion to dismiss, the question is
whether the pleadings, if presumed true and construed
in favor of the plaintiff, set forth sufficient facts to
establish that the plaintiff had standing. . . . That
question is one of law, over which our review is ple-
nary.’’ (Citation omitted.) Burton v. Freedom of Infor-
mation Commission, 161 Conn. App. 654, 658, 129 A.3d
721 (2015), cert. denied, 321 Conn. 901, 136 A.3d 642
(2016). ‘‘It is a basic principle of law that a plaintiff
must have standing for the court to have jurisdiction.
Standing is the legal right to set judicial machinery in
motion. One cannot rightfully invoke the jurisdiction
of the court unless he has . . . some real interest in
the cause of action, or a legal or equitable right, title
or interest in the subject matter of the controversy.
. . . Standing is not a technical rule intended to keep
aggrieved parties out of court; nor is it a test of substan-
tive rights. Rather it is a practical concept designed to
ensure that courts and parties are not vexed by suits
brought to vindicate nonjusticiable interests and that
judicial decisions which may affect the rights of others
are forged in hot controversy, with each view fairly and
vigorously represented. . . . These two objectives are
ordinarily held to have been met when a complainant
makes a colorable claim of [a] direct injury he has
suffered or is likely to suffer, in an individual or repre-
sentative capacity. Such a personal stake in the out-
come of the controversy . . . provides the requisite
assurance of concrete adverseness and diligent advo-
cacy.’’ (Citations omitted; internal quotation marks
omitted.) Rose v. Freedom of Information Commis-
sion, 221 Conn. 217, 223–24, 602 A.2d 1019 (1992).
‘‘Standing may derive from either classical or statu-
tory aggrievement. . . . Aggrievement is also
expressly required by the statutes that govern a FOIA
appeal. See General Statutes § 1-206 (d) (‘[a]ny party
aggrieved by the decision of said commission may
appeal therefrom, in accordance with the provisions of
section 4-183’ . . .); General Statutes § 4-183 (a) (‘[a]
person who has exhausted all administrative remedies
available within the agency and who is aggrieved by
a final decision may appeal to the Superior Court as
provided in this section’ . . .).’’ (Citation omitted;
emphasis omitted.) Burton v. Freedom of Information
Commission, supra, 161 Conn. App. 659.
In Burton, this court addressed the precise issue
raised in the case at hand, namely, whether a plaintiff
had standing to challenge on appeal the commission’s
failure to impose a civil penalty as a remedy once the
commission determined that a FOIA violation had
occurred. See id., 662–67. This court concluded that the
plaintiff in Burton was neither classically nor statutorily
aggrieved by the commission’s decision not to impose
a civil penalty because the decision did not violate a
legal interest of the plaintiff and there was no statutory
authority that provided the plaintiff with standing to
appeal to the trial court from the commission’s failure
to impose such a penalty. See id., 665–67. In reaching
this conclusion, the panel in Burton relied in part on
the language of § 1-206 (b) (2) to distinguish between
forms of relief that a plaintiff could seek, such as injunc-
tions, and discretionary tools that the commission may
utilize, such as civil penalties. Id., 662–65.
The plaintiff acknowledges that Burton was binding
on the trial court, but attempts to distinguish Burton
from the present case by arguing that he was aggrieved
by the commission’s decision not to impose a civil pen-
alty against the health center because that decision led
to a subsequent denial of his right to receive records
from the health center promptly pursuant to §§ 1-210
(a) and 1-212 (a). In making this claim, the plaintiff
appears to argue that the commission’s imposition of
a civil penalty to enforce compliance with its order
would have deterred the health center from committing
further FOIA violations. This argument, however, is
speculative, as it lacks any evidentiary foundation. In
short, there is no evidence in the record to support
the plaintiff’s contention that Burton is distinguishable
from the present matter. Accordingly, we conclude that
the court did not err in granting the commission’s
motion to dismiss the plaintiff’s civil penalty claim for
lack of standing.
II
The plaintiff next claims that the court erred in dis-
missing his claim that his FIC 2014-156 complaint was
improperly dismissed on the basis that he was not
aggrieved because the issues raised in that complaint
were addressed in FIC 2015-127, the underlying matter
in which he ultimately prevailed. The plaintiff claims
that he did not appeal from the court’s decision regard-
ing his FIC 2014-156 complaint, because he relied to
his detriment on the commission’s guarantee during a
hearing on that matter14 that it would take his FIC 2014-
156 complaint into consideration in making its decision
in regard to his later FIC 2015-127 complaint. The plain-
tiff asserts that he subsequently was aggrieved by the
commission’s failure in FIC 2015-127 to consider all of
the relevant records from FIC 2014-156, as well as its
decision in FIC 2015-127 to consider the February 4,
2015 request date in determining whether the health
center had promptly complied, rather than the August
19, 2013 request date. We agree with the commission
that the court properly dismissed this claim.
‘‘Our resolution of this issue is guided by the limited
scope of judicial review afforded by the Uniform Admin-
istrative Procedure Act; General Statutes § 4-166 et seq.;
to the determinations made by an administrative
agency. [W]e must decide, in view of all of the evidence,
whether the agency, in issuing its order, acted unreason-
ably, arbitrarily or illegally, or abused its discretion.
. . . Even as to questions of law, [t]he court’s ultimate
duty is only to decide whether, in light of the evidence,
the [agency] has acted unreasonably, arbitrarily, ille-
gally, or in abuse of its discretion. . . . 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.’’ (Cita-
tion omitted; emphasis omitted; footnote omitted; inter-
nal quotation marks omitted.) Perkins v. Freedom of
Information Commission, 228 Conn. 158, 164–65, 635
A.2d 783 (1993). ‘‘Neither this court nor the trial court
may retry the case or substitute its own judgment for
that of the [administrative agency].’’ (Internal quotation
marks omitted.) Ottochian v. Freedom of Information
Commission, 221 Conn. 393, 397, 604 A.2d 351 (1992).
The plaintiff’s argument appears to be that, because
of representations made to him by counsel for the com-
mission during the hearing concerning his appeal of
FIC 2014-156, he did not appeal the court’s disposition
regarding his FIC 2014-156 complaint, and, as a result,
the commission should be equitably estopped from later
asserting any issues arising from his failure to appeal.
We, however, agree with the court that the record
reveals that the plaintiff’s argument lacks merit.
Contrary to the plaintiff’s assertion, the record indi-
cates that the commission did take the relevant facts
of FIC 2014-156 into consideration when making its
decision that the health center had violated the FOIA.
Not only did the commission find that the February 4,
2015 request was identical to the August 19, 2013
request, but, during the hearing in FIC 2015-127, the
commission explicitly took administrative notice of the
findings of fact in FIC 2014-156 that were relevant to
its determination as to whether the health center had
promptly complied. Because the commission actually
did take the relevant facts of FIC 2014-156 into consider-
ation in making its decision in FIC 2015-127, and the
plaintiff’s February 4, 2015 request is identical to his
August 19, 2013 request, the plaintiff has not demon-
strated how he was aggrieved by the statements of the
commission’s counsel or by the commission’s reliance
on the later request date in making its decision. There-
fore, the plaintiff’s claim is without merit, and, accord-
ingly, we conclude that the court properly dismissed it.
III
The plaintiff next claims that the court erred in con-
cluding 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,
as described in paragraph eleven of the commission’s
final decision. Specifically, the plaintiff claims that he
had not agreed to permanently narrow his FOIA request
to limit it to only the records described in an e-mail
communication with Dr. Wetstone, the health center’s
FOI officer. Rather, the plaintiff claims that he had
requested the health center to expedite the most time
sensitive portion of his request without excluding the
remainder of the records requested. The record sup-
ports the plaintiff’s claim in this regard.
The record reveals the following additional facts that
are relevant to this claim. After receiving the plaintiff’s
modified FOIA request, Dr. Wetstone e-mailed the plain-
tiff the following on December 13, 2013: ‘‘As I have
already described, this request is likely to take a consid-
erable amount of time to complete given the number
[of] documents involved, the nature of the documents
. . . and my office’s capacity to review these docu-
ments . . . . To any degree that you are willing to nar-
row the scope of this [FOIA] request, it might help
expedite you receiving the documents you are seeking.’’
The plaintiff responded as follows: ‘‘As I stated before
you may exempt [b]roadcast news [e-mails], journal
articles, and research data. Since I do not know what
else is in [Dr.] Lieberman’s computer and [e-mail] I am
welcome to other suggestions. If you are able to send me
a list of documents on the computers and or [e-mails]
I would be happy to omit the ones I think are irrelevant.’’
The plaintiff subsequently filed his complaint in FIC
2014-156 on March 17, 2014, alleging that the health
center had failed to provide any of the requested doc-
uments.
On June 30, 2014, the plaintiff sent the following
e-mail to Dr. Wetstone: ‘‘Quite some time has passed
since [my] FOIA request was made. As you are aware
from one of your other responsibilities at the Health
Center I have an appeal due on or about July 21, 2014
with respect to my HCAC grievance against Dr. Lieber-
man. There is likely material extremely relevant to my
. . . appeal in [my] FOIA request that I would hope to
receive by July 14, 2014 if possible so I have time to
evaluate the information and incorporate it into my
appeal. Therefore, I am asking you to consider releasing
to me by July 14, 2014 whatever material you have
collected to date [as] well as the subset of documents
that meet the following criteria: (‘Mike’ OR ‘Aronow’
or ‘ARANOW’ or ‘Arano’ OR ‘HCAC’ OR ‘grievance’ or
‘Appeals Committee’ OR ‘FOI’ OR ‘FOIA’ OR ‘Freedom
of Information’) between July 1, 2010 and August 14,
2012 and excluding [e-mails] directly sent or [cc’d] to
Aronow@nso.uchc.edu.’’
As previously discussed, on February 4, 2015, the
same date that the plaintiff’s complaint in FIC 2014-156
was dismissed, the plaintiff submitted a FOIA request
identical to his August 19, 2013 request. On February
17, 2015, the plaintiff filed his complaint in FIC 2015-
127. During the hearing in that matter, Dr. Wetstone
testified that he had negotiated with the plaintiff a ‘‘dra-
matic reduction’’ to his original August 19, 2013 request,
but that the plaintiff’s February 4, 2015 request restored
the original, prenegotiation request. Other than Dr. Wet-
stone’s testimony in this regard, there was no documen-
tary evidence reflecting that the plaintiff had narrowed
the scope of his records request. Moreover, the plaintiff
testified that there was an ‘‘implicit assumption . . .
that the same restrictions [regarding his original
request] would be in place [regarding his February 4,
2015 request]’’ and that he ‘‘was always willing to work
with Dr. Wetstone to narrow [his request] in any way
before, and the implicit assumption was that . . . [Dr.
Wetstone] would give [him] the documents he already
had . . . .’’ The hearing officer also asked the plaintiff
if he was still willing to reduce the number of documents
he was requesting, to which the plaintiff replied in
the affirmative.
As with the plaintiff’s second claim, our review of
this claim is limited to ‘‘whether the agency, in issuing
its order, acted unreasonably, arbitrarily or illegally, or
abused its discretion.’’ (Internal quotation marks omit-
ted.) Perkins v. Freedom of Information Commission,
supra, 228 Conn. 164. Also in our review, we are mindful
that ‘‘[t]he [FOIA] expresses a strong legislative policy
in favor of the open conduct of government and free
public access to government records.’’ Wilson v. Free-
dom of Information Commission, 181 Conn. 324, 328,
435 A.2d 353 (1980); see also Board of Education v.
Freedom of Information Commission, 208 Conn. 442,
450, 545 A.2d 1064 (1988) (‘‘general policy of openness
expressed in the FOIA legislation’’); Tompkins v. Free-
dom of Information Commission, 136 Conn. App. 496,
507, 46 A.3d 291 (2012) (‘‘We note initially that public
policy favors the disclosure of public records. . . .
[A]ny exception to that rule [therefore] will be narrowly
construed in light of the general policy of openness
expressed in the [FOIA] . . . .’’ [Citation omitted; inter-
nal quotation marks omitted.]). In addition, ‘‘[t]he bur-
den of proving the applicability of an exception to the
FOIA rests upon the party claiming it.’’ Rose v. Freedom
of Information Commission, supra, 221 Conn. 232.
The present case rests on the interpretation of the
plaintiff’s June 30, 2014 e-mail and his subsequent repre-
sentations to the health center and the commission.
The commission argues that it reasonably interpreted
the June 30, 2014 e-mail as an agreement by the plaintiff
to narrow the scope of his request to a particular subset
of documents, and that there is no evidence in the
record to support the plaintiff’s assertion that he did
not intend to permanently narrow his request to that
subset. The record does not support that conclusion.
In the June 30, 2014 e-mail, the plaintiff clearly stated
that he needed material that was relevant to his pending
committee appeal. He also asked Dr. Wetstone to for-
ward any documents that had been collected up to that
date, including documents that were relevant to his
committee appeal. The plaintiff also explicitly excluded
e-mails that had been sent to his own e-mail address
at the health center. The plaintiff, however, did not
state in the e-mail that he was in any way limiting his
original August 19, 2013 request, or that he was exclud-
ing the remainder of the documents related to that
request. The only reasonable reading of the plaintiff’s
e-mail is that he was attempting to expedite the receipt
of certain documents for his upcoming committee
appeal. Nowhere in the plaintiff’s response to Dr. Wet-
stone did he evince an intent to permanently alter the
scope of his pending FOIA request.
Moreover, the commission’s view that the June 30,
2014 e-mail constituted an agreement by the plaintiff
to narrow the scope of his request appears to conflate
that e-mail with the plaintiff’s December 16, 2013 e-mail
in which he explicitly agreed to exclude ‘‘broadcast
[e-mails], journal articles, and research data’’ from his
original August 19, 2013 request.15 (Internal quotation
marks omitted.) The plaintiff does not dispute that he
agreed to exclude these documents, as well as the
e-mails sent to his e-mail address at the health center.
The plaintiff’s testimony before the commission reflects
his assumption that these were the same exclusions
that would be in place in his February 4, 2015 request,
and that this request would otherwise remain the same
as his original request.
Not only is the commission’s order narrowing the
plaintiff’s request as described in paragraph eleven of
its final decision inconsistent with the record, but it also
contravenes the general policy of openness expressed
within the FOIA. See Ottochian v. Freedom of Informa-
tion Commission, supra, 221 Conn. 398; Tompkins v.
Freedom of Information Commission, supra, 136
Conn. App. 507. Our application of this general policy
is not hindered where neither the health center nor the
commission has asserted that the restrictions enunci-
ated in paragraph eleven were due to exemptions pursu-
ant to § 1-210 (b). In sum, we conclude that there was
no basis for the commission’s order narrowing the plain-
tiff’s request, as described in paragraph eleven. Accord-
ingly, we conclude that the trial court erred in
concluding that there was substantial evidence in the
record to support the commission’s finding that the
plaintiff had narrowed the scope of his request with
respect to paragraph eleven.16
The judgment is reversed in part with regard to the
narrowing in scope of the plaintiff’s document request
and the case is remanded to the trial court with direction
to remand to the commission to order that the health
center comply with the plaintiff’s original FOIA request,
as narrowed only by paragraph ten of its final decision,
in an expeditious manner. The portion of this appeal
in regard to the plaintiff’s fourth claim is dismissed, and
the judgment is affirmed with respect to the plaintiff’s
remaining claims.
In this opinion the other judges concurred.
1
The plaintiff also represented himself before the trial court and the com-
mission.
2
The health center and its freedom of information officer are not parties
to this action.
3
The record reflects that the commission’s October 28, 2015 order afforded
the health center an additional nine months to comply with the plaintiff’s
request as narrowed by paragraphs ten and eleven of its decision. Because
we conclude that the commission incorrectly determined that the plaintiff
had voluntarily narrowed his document request and we remand with direc-
tion that the commission formulate new orders for production, we need
not reach the plaintiff’s fourth claim that the commission gave the health
center an unreasonable amount of time to comply with its document produc-
tion order. In sum, as a consequence of this opinion, the issue of whether
the commission abused its discretion by affording the health center an
unreasonably long period of time to comply is moot. See, e.g., Angersola
v. Radiologic Associates of Middletown, P.C., 330 Conn. 251, 256 n.4, 193
A.3d 520 (2018); Fisher v. Big Y Foods, Inc., 298 Conn. 414, 416 n.2, 3 A.3d
919 (2010).
4
While in the employ of the health center, the plaintiff filed a grievance
with the Health Center Appeals Committee (committee) against his depart-
ment head, in which he accused the department head of various acts of
misconduct directed against the plaintiff and others. Once the committee
heard the grievance, it forwarded its report to the Office of the Executive
Vice President of Academic Affairs at the University of Connecticut. That
report, in turn, was reviewed by Philip Austin, president emeritus of the
university. Austin subsequently wrote a one page report on the matter. After
the plaintiff’s request for copies of the report was denied, he filed a complaint
with the commission which, in turn, ordered that the copies be disseminated
to him. On appeal, our Supreme Court affirmed the commission’s decision.
See Lieberman v. Aronow, 319 Conn 748, 751–53, 127 A.3d. 970 (2015).
5
By order dated February 14, 2018, a hearing officer from the Office of
Public Hearings issued a decision, after a bifurcated hearing, in favor of the
plaintiff on the issues of liability and continued the hearing to a subsequent
date for a hearing on damages. As of the date of oral argument in this appeal,
the damages hearing by the Office of Public Hearings had not taken place.
We take judicial notice of these proceedings in the Office of Public Hearings
as permitted by law. See Cannatelli v. Statewide Grievance Committee,
186 Conn. App. 135, 136 n.1, 198 A.3d 716 (2018) (taking judicial notice of
disciplinary proceeding despite fact that documents in proceeding not part
of underlying record), cert. denied, 331 Conn. 903, 202 A.3d 374 (2019).
6
The plaintiff had made a number of additional FOIA requests to the
health center. Specifically, in the three years from the plaintiff’s departure
from the health center until the hearing in Aronow v. University of Connecti-
cut Health Center, Freedom of Information Commission, Docket No. FIC
2015-127 (October 28, 2015), Dr. Wetstone testified that the plaintiff had
made twenty-seven requests to the health center.
7
See footnote 4 of this opinion.
8
Dropbox is a ‘‘web-based file hosting service that uses cloud storage to
enable users to store and share files with others across the Internet using
file synchronization. When files are uploaded to Dropbox by a user, they
automatically sync with another computer selected by the user, meaning that
the files are transferred from one computer to another.’’ (Internal quotation
marks omitted.) Frisco Medical Center, L.L.P. v. Bledsoe, 147 F. Supp. 3d
646, 652 (E.D. Tex. 2015).
9
General Statutes § 1-206 (b) (1) provides in relevant part that ‘‘[a]ny
person denied the right to inspect or copy records under section 1-210 . . .
or denied any other right conferred by the Freedom of Information Act may
appeal therefrom to the Freedom of Information Commission, by filing a
notice of appeal with said commission. A notice of appeal shall be filed not
later than thirty days after such denial . . . .’’ In the present case, the
commission concluded that the plaintiff’s March 17, 2014 complaint ‘‘was
more than sixty days past the denial of the [plaintiff]’s request that is deemed
to have occurred on December 20, 2013 . . . .’’
10
General Statutes § 1-210 (a) provides in relevant part that ‘‘[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 (1) inspect such records promptly during
regular office or business hours, (2) copy such records in accordance with
subsection (g) of section 1-212, or (3) receive a copy of such records in
accordance with section 1-212. . . .’’
11
General Statutes § 1-212 (a) provides in relevant part that ‘‘[a]ny person
applying in writing shall receive, promptly upon request, a plain, facsimile,
electronic or certified copy of any public record. The type of copy provided
shall be within the discretion of the public agency, except (1) the agency
shall provide a certified copy whenever requested, and (2) if the applicant
does not have access to a computer or facsimile machine, the public agency
shall not send the applicant an electronic or facsimile copy. . . .’’
12
During oral argument, the plaintiff further represented to this court that,
since receiving the CDs in June, 2017, he has not received any additional
documents from the health center. He also is uncertain of how many of the
documents falling within the scope of the narrowed request he did not
receive in the nine months following the court’s order.
13
On appeal, although the plaintiff notes in his appellate brief the commis-
sion’s suggestion that he refrain from filing additional FOIA requests until
the health center complied with the commission’s order, the plaintiff does
not appear to argue that this suggestion was improper. In fact, the plaintiff
concedes in his brief that the court reasonably concluded that the commis-
sion’s order that he refrain from further requests until the request at issue
is satisfied was nonbinding. Because the plaintiff does not appear to chal-
lenge the trial court’s determination in this regard, we need not address
this issue further.
Additionally, in his brief, the plaintiff’s only references to his request for
an in camera review of documents that the health center claimed to be
exempt from disclosure consist of a summary of the trial court’s decision
and a statement of his belief that he will need to file a new FOIA request
for an in camera review of the contested records. Lacking any analysis or
argumentation, we deem this claim to be abandoned. See Connecticut
Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120,
830 A.2d 1121 (2003) (‘‘[W]e are not required to review issues that have
been improperly presented to this court through an inadequate brief. . . .
Analysis, rather than mere abstract assertion, is required in order to avoid
abandoning an issue by failure to brief the issue properly.’’ [Internal quotation
marks omitted.]); Walker v. Commissioner of Correction, 176 Conn. App.
843, 856, 171 A.3d 525 (2017) (same).
14
In making this argument, the plaintiff relies on the following exchange
that occurred between the court and the commission’s counsel during
the hearing:
‘‘[The Court]: Right. How about [the plaintiff’s] claim that the 2014 [case]
is different than the 2015 case because it’s more and more likely to result
in an order of sanctions against the health center?
‘‘[The Commission’s Counsel]: Well—and I understand [the plaintiff]’s
thinking in that regard but he is able when his case comes up, he is able
to explain that it is a renewed complaint and the hearing officer who makes
a recommendation to the commission will consider that. It won’t just look
at the complaint in isolation.
‘‘[The Plaintiff] will be able to present evidence that this is, in fact, a
renewed complaint that he had to file in order to come within the jurisdiction
of the commission.
‘‘[The Court]: But his claim is that the length of time that it’s taken the
health center to supply the records is longer in the 2014 case than in the
2015 case and therefore he is more likely to obtain sanctions.
‘‘[The Commission’s Counsel]: And again, he would be able to present
that evidence at the hearing that this is a renewed complaint and his original
request was made over, I think it was [seventeen] months ago and the
hearing officer and the commission will take that into consideration. It
won’t view this new complaint, renewed complaint in isolation. [The plain-
tiff] will be able to present evidence that it was actually a renewed com-
plaint.’’ (Emphasis added.)
15
This is the same exclusion recognized by the commission in paragraph
ten of its final decision in FIC 2015-127.
16
Although we conclude that our resolution of the plaintiff’s third claim
renders his fourth claim moot; see footnote 3 of this opinion; on the basis
of our review of the record, we do not understand the reasonableness of
the commission’s decision to afford the health center an additional nine
months to comply with the plaintiff’s records requests which, by then, were
already long-standing, especially in light of the explicit promise made by
Dr. Wetstone to complete the plaintiff’s request by March, 2015. We also
note the plaintiff’s unrebutted assertion that the health center had failed to
fully comply with the commission’s October 28, 2015 order by the nine
month deadline, which was not stayed following the trial court’s May 8,
2017 decision on the commission’s motion to dismiss. Under these circum-
stances, on remand we encourage the commission to put in place a procedure
to adequately monitor and ensure the health center’s compliance with the
plaintiff’s long-standing records requests.