Lindquist v. Freedom of Information Commission

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RICHARD LINDQUIST v. FREEDOM OF
INFORMATION COMMISSION
(AC 42496)
Bright, C. J., and Alvord and Cradle, Js.
Syllabus
Pursuant to statute (§ 1-210 (b) (1)), the Freedom of Information Act does
not require the disclosure of preliminary drafts or notes provided the
public agency has determined that the public interest in withholding
them outweighs the public interest in disclosure.
Pursuant further to statute (§ 1-210 (e) (1)), notwithstanding § 1-210 (b)
(1), disclosure is required of such documents as advisory opinions and
recommendations comprising part of the process by which governmental
decisions are formulated.
The plaintiff, L, a tenured professor at the defendant health center, C Co.,
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. After the completion of his annual performance review,
as required by C Co.’s bylaws, L requested certain documents and com-
munications related to the review. C Co. disclosed records within which
it made various redactions, including to comments and ratings made
by individual committee members about L’s evaluation. L appealed to
the commission, which found that the redacted portions of the requested
records were permissibly exempt pursuant to § 1-210 (b) (1) and (e) (1).
L then appealed to the trial court, which concluded that the commission
correctly determined that C Co., pursuant to § 1-210 (b) (1), properly had
resolved the balance between secrecy and disclosure of the preliminary
drafts or notes in good faith and that § 1-210 (e) (1) did not require
production of the committee members’ final comments and ratings
because they were ‘‘preliminary’’ to the committee’s recommendation
to the dean of C Co. regarding L’s evaluation, and dismissed L’s appeal.
On L’s appeal to this court, held:
1. The trial court properly concluded that the commission did not abuse
its discretion in finding that the redacted records were exempt from
disclosure under § 1-210 (b) (1), as those records were preliminary drafts
or notes within the meaning of that statute: the redacted records at
issue consisted of the individual comments and ratings of the committee
members made during the deliberative process of the multistep commit-
tee process during which the committee members deliberated in the
form of stated impressions in order to reach a finalized collective recom-
mendation for the dean, and the stated individualized impressions, in
and of themselves, preceded the formal and informed collective recom-
mendation of the committee; moreover, the commission did not abuse
its discretion when it determined that the benefit of withholding the
records at issue outweighed the public interest in disclosure, as it found
that C Co. determined that public disclosure of the records would have
a chilling effect on the willingness of the committee members to provide
the candid assessments that were necessary to ensure an objective
evaluation process.
2. The trial court abused its discretion when it dismissed L’s appeal, and
improperly concluded that the commission had correctly applied § 1-
210 (e) (1) to the final comments and ratings that were delivered to the
dean because § 1-210 (e) (1) required the requested documents to be
produced, even though disclosure would not otherwise be required
under § 1-210 (b) (1); the final individual comments and ratings provided
by the committee members were used in the dean’s deliberative process
and were part of a completed, not draft, document, and were precisely
the type of documents that our Supreme Court stated in Van Norstrand
v. Freedom of Information Commission (211 Conn. 339) should be
produced pursuant to § 1-210 (e) (1); moreover, the record did not
support the conclusion of the commission that the redacted records did
not contain recommendations, as although the individual committee
members’ comments and ratings were initially submitted as recommen-
dations for the purpose of the committee’s deliberations, the final version
of the comments and ratings served as recommendations for the purpose
of the dean’s review of the faculty member’s rating, and the trial court
and the commission misapplied the term ‘‘preliminary’’ as it is used in
§ 1-210 (e) (1).
Argued September 15, 2020—officially released March 30, 2021
Procedural History
Administrative appeal from the decision of the defen-
dant dismissing the plaintiff’s complaint regarding a
records request submitted to the University of Connecti-
cut Health Center, brought to the Superior Court in the
judicial district of New Britain, where the court, Hon.
George Levine, judge trial referee, granted a motion to
intervene as a party defendant filed by the University
of Connecticut Health Center; thereafter, the matter
was tried to the court, Hon. Henry S. Cohn, judge trial
referee; judgment dismissing the appeal, from which
the plaintiff appealed to this court. Reversed; judgment
directed.
Richard Lindquist, self-represented, the appellant
(plaintiff).
Paula Sobral Pearlman, commission counsel, with
whom, on the brief, was Colleen M. Murphy, general
counsel, for the appellee (defendant).
Lynn D. Wittenbrink, assistant attorney general, with
whom, on the brief, was William Tong, attorney gen-
eral, for the appellee (intervening defendant).
Opinion
BRIGHT, C. J. The self-represented plaintiff, Richard
Lindquist, at all relevant times, a tenured professor at
the defendant University of Connecticut Health Center
(health center), appeals from the judgment of the trial
court dismissing his appeal from the final decision of
the defendant Freedom of Information Commission
(commission), in which the trial court concluded that
the commission correctly dismissed the plaintiff’s
request for certain documents of the health center relat-
ing to his annual performance review. On appeal, the
plaintiff claims that (1) the trial court failed to consider
whether the commission failed to apply various provi-
sions of the Freedom of Information Act (act), General
Statutes § 1-200 et seq., including General Statutes §§ 1-
200 (6), 1-210 (b) (2), 1-213 and 1-225, and General
Statutes (Rev. to 2015) § 1-214, and chapters 563 and
563a of the General Statutes, (2) the trial court improp-
erly concluded that the commission properly applied
§ 1-210 (b) (1) and (e) (1) of the act to the records at
issue, (3) the trial court improperly rejected the due
process claim raised by the plaintiff, and (4) the com-
mission failed to comply with General Statutes §§ 1-
210 (b) (2) and 10a-154a. We agree, in part, with the
plaintiff’s second claim, as it relates to § 1-210 (e) (1),
that he is entitled to judgment in his favor requiring the
disclosure of the final individual comments and ratings
by the committee members that were delivered to the
dean of the University of Connecticut School of Medi-
cine (dean), and, accordingly, we reverse the judgment
of the trial court and remand the case to that court
with direction to render judgment for the plaintiff. In
light of our resolution on the basis of the plaintiff’s
second claim, we need not reach the plaintiff’s other
claims.
The following background is relevant to this appeal.
In May, 2016, the plaintiff was a tenured faculty member
of the Department of Pathology and Lab Medicine at
the health center. As a faculty member, the plaintiff
was annually evaluated pursuant to the health center’s
bylaws. During the evaluation process, a faculty mem-
ber meets with his or her department’s chairperson.
The faculty member and the chairperson discuss the
past year’s performance and arrive at ratings for five
categories. In particular, the chairperson indicates
whether the faculty member’s performance is ‘‘not
acceptable,’’ ‘‘marginal,’’ ‘‘acceptable,’’ or ‘‘superior’’ for
the categories of education, research, administrative,
transition, and excellence. Each of the individual evalu-
ations is weighted by the percent effort for the category.
On that basis, the chairperson then assigns an aggregate
evaluation that corresponds to an overall evaluation of
‘‘superior,’’ ‘‘acceptable,’’ ‘‘marginal,’’ or ‘‘not accept-
able.’’
In the next step of the evaluation process, a file is
prepared for the Merit Plan Executive Committee (com-
mittee) to review the chairperson’s evaluation for con-
sistency among all departments. An overall evaluation
of ‘‘acceptable’’ does not require further action by the
committee unless the faculty member contests the rat-
ing. In the event that a faculty member contests an
overall evaluation of ‘‘acceptable,’’ the chairperson’s
evaluation is subject to review by the committee.
Overall evaluations of ‘‘not acceptable,’’ ‘‘marginal,’’
or ‘‘superior’’ are reviewed by the committee. If the
committee disagrees with the chairperson’s evaluation
after reviewing the file, it will recommend a different
rating and refer the file to the dean for a final decision.
The information provided to the dean includes a joint
recommended rating by the committee and the final
individual comments and ratings of the committee
members regarding the person being evaluated. It is
the committee members’ final individual comments and
ratings regarding the plaintiff that are at issue in this
appeal.
With this background in mind, we turn to the specific
facts and procedural history relevant to the plaintiff’s
claims on appeal. In May, 2016, after completion of his
most recent annual review, the plaintiff, relying on the
act, sent to the respondents1 a request via e-mail for
‘‘[c]opies of all documents and communications, includ-
ing but not limited to, electronic and written [records]
related to my [annual] review.’’2 In response to the plain-
tiff’s request, the health center disclosed 908 pages of
records, within which it made various redactions. The
redactions fell into two categories. First, the health
center redacted any information that related to faculty
members other than the plaintiff. Second, the health
center redacted comments and ratings made by the
individual committee members about the plaintiff’s
evaluation, their individual agreement or disagreement
with the chairperson and with each other, and individ-
ual assessments of merit in each particular category
and on an aggregate basis. The health center redacted
the commentary on the basis that the disclosure of the
redactions would have a potential substantial effect on
the willingness of the individual members to participate
in the evaluation process and that it otherwise was not
required under the act.
On May 23, 2016, the plaintiff appealed to the commis-
sion, alleging that the respondents violated the act by
failing to provide the plaintiff with the requested docu-
ments and communications. After the plaintiff appealed
to the commission, the health center provided the plain-
tiff with approximately 200 additional pages of docu-
ments, some of which also contained redactions of the
individual comments and ratings of the committee
members regarding the plaintiff’s evaluation. The addi-
tional records came primarily from the chairperson, the
individual members of the committee, and the associate
dean for faculty affairs. The redactions at issue before
the commission were those that redacted the comments
and ratings by the individual members of the committee
about the plaintiff.
Three contested case hearings were held before the
commission. At the hearings, the health center claimed
that the redacted records were exempt from disclosure
pursuant to § 1-210 (b) (1), which provides that nothing
in the act should be construed to require the disclosure
of preliminary drafts or notes provided that the public
agency has determined that the public interest in with-
holding such documents clearly outweighs the public
interest in disclosure. See General Statutes § 1-210 (b)
(1). Scott Simpson, the freedom of information officer
for the health center, testified that the final individual
comments and ratings by the committee members
regarding the plaintiff were not disclosed because they
are made as part of the deliberative process prior to
the final joint committee recommendation. According
to Simpson, this information consists of deliberations
about the plaintiff’s ratings and the members’ individual
agreements or disagreements prior to providing a col-
lective recommendation to the dean.
Simpson also provided the following testimony as to
the purpose of the committee. The committee guards
against bias and inconsistency in the ratings. The com-
mittee makes a generic or committee based recommen-
dation that may reflect, generally, the individual com-
ments made by the committee during the deliberative
process. Simpson also testified that a single member
cannot make a recommendation to the dean. Individual
comments and ratings are maintained by Richard
Simon, the nonvoting plan administrator of the annual
review. After the committee arrives at a final joint rec-
ommendation, the committee recommendation and the
printout of the final individual comments and ratings
of the committee members are submitted to the dean,
who makes the final decision. The dean sees the final
comments and ratings by the committee members and
the joint recommendation, the latter of which has been
disclosed to the plaintiff.
At the second case hearing, Simon testified that a
chairperson’s evaluation will be reviewed by a three
member committee in certain scenarios. If the majority
of the three member committee agrees with the chair-
person’s evaluation, then Simon is authorized to
approve the chairperson’s evaluation without the dean’s
final review. During Simon’s testimony, Simpson inter-
jected that if the majority of the three member commit-
tee cannot agree with the chairperson’s evaluation, then
the full ten member committee reviews the evaluation.
In the plaintiff’s case, on at least one occasion, the three
member committee did not agree with the chairperson’s
preliminary evaluation, so the full committee reviewed
the evaluation.
Simon also described the committee’s review pro-
cess. The review process involves committee members
submitting comments and proposed ratings to a data-
base on a website. Members can reply to each other’s
comments. Furthermore, committee members can
change their comments and proposed ratings through-
out the process. They can also request changes by
e-mailing Simon, who enters the changes into the data-
base. Members can also request a change if certain
items are flagged for discussion, where upon such a
request, a meeting takes place where the committee
members can change their votes. Any changes made to
the comments or ratings during the deliberative process
effectively write over the previous comments and rat-
ings, deleting them from the database. After the commit-
tee members have completed their commenting pro-
cess, the website has a box to check if committee
members believe that deliberation beyond the com-
ments is required. If the box is checked at the end of
the commenting process, then as many meetings as
necessary are conducted to discuss the items that have
been earmarked for discussion. After all of the com-
menting and deliberations have concluded, Simon
prints out from the database the final individual ratings
and final comments of the members and presents them
to the dean with the committee’s joint final recom-
mended rating. Thus, the dean has access to the entire
application with the supporting data, the chairperson’s
recommendation, the chairperson’s justification, the
joint rating of the committee, and the final comments
and ratings of each member.
Simon went on to testify that the full committee
begins the deliberative process with the assumption
that the chairperson will prevail. If a simple majority
of the eligible voting members of the full ten member
committee3 votes to overturn the chairperson’s evalua-
tion, then it will recommend a different rating and refer
the plaintiff’s evaluation to the dean for a final decision.
Simon and Simpson both testified that the joint rec-
ommendation to the dean is a number rating that repre-
sents the final joint recommendation of the committee.
The number rating corresponds to the members’ indi-
vidual assessments of merit in each particular category,
and then on an aggregate basis. This final number rating
representing the joint collective recommendation of the
committee is separate from the individual comments
and ratings, which precede the collective number rat-
ing.4
Following the contested case hearings, the commis-
sion made the following findings and conclusions in its
final decision. The commission found that the respon-
dents’ annual review is a yearly evaluation process.
During the evaluation process, faculty members receive
one of the following four performance ratings: superior,
acceptable, marginal, and not acceptable. A faculty
member’s annual review can influence salary or trigger
a post-tenure review. The committee, consisting of
three members or ten voting members and one nonvo-
ting plan administrator, reviews the evaluation of a
department chairperson, and makes a recommendation
to the dean. The dean reviews the recommendation of
the committee and then makes a final and independent
annual rating decision. The dean’s final rating decision
can be appealed to another administrative body.
The plaintiff’s requested records were public records
within the meaning of General Statutes §§ 1-200 (5), 1-
210 (a), and 1-212 (a). Although the plaintiff requested
all documents and communications related to his post-
tenure review, Simpson determined, after speaking with
the plaintiff about the request, that he was seeking
documents and communications related to his annual
process and any post-tenure review. Simpson limited
the breadth of his search to the five years preceding
the respondents’ receipt of the request. The commission
determined that the plaintiff found the parameters of
the search were acceptable. The plaintiff received all
of the committee’s joint, unredacted recommendations
from either a three member committee or a full commit-
tee to the dean along with the dean’s unredacted final
rating decision. Simpson reported that all responsive
records, which included redactions, were disclosed to
the plaintiff.
The commission found that the redactions at issue
in the plaintiff’s appeal were the deliberative comments
made by members of the committee during the review
process. The commission found that committee mem-
bers, who are reviewing a department chairperson’s
annual evaluation or a post-tenure review matter, can
send their initial impressions on the matter to the non-
voting member of the committee, Simon, via e-mail.
The committee members can also log into a database
and record their impressions in that forum. The com-
mission found that the redactions at issue concern the
process by which committee members deliberate with
each other in order to reach a recommendation for
the dean. The plaintiff sought the committee members’
comments among themselves, whether such comments
occurred among a three member panel or among the
full membership of the committee.
The commission concluded that the respondents did
not violate the act as alleged in the complaint and fur-
ther concluded that the redacted portions of the
requested records are permissibly exempt pursuant to
§ 1-210 (b) (1). The commission found that the com-
ments among the members of the committee precede
a formal and informed recommendation to the dean,
the committee members’ comments are ‘‘notes,’’ within
the meaning of § 1-210 (b) (1), and the respondents
properly determined that the public interest in with-
holding the notes clearly outweighed the public interest
in disclosure on the basis that public disclosure of the
records would have a chilling effect on the willingness
of the members to provide the candid assessments nec-
essary to ensure an objective evaluation process. The
commission also found, without explanation, that the
redacted portions of the requested records are not inter-
agency or intra-agency memoranda, letters, advisory
opinions, recommendations or reports within the mean-
ing of § 1-210 (e) (1). On April 28, 2017, the plaintiff
filed a petition for reconsideration of the final decision,
which the commission denied.
On June 21, 2017, the plaintiff appealed to the Supe-
rior Court, pursuant to General Statutes § 4-183, from
the commission’s final decision. The plaintiff claimed
that (1) the health center violated § 1-225 because the
committee members had not reduced their comments
to writing, (2) the health center erred because the com-
mittee votes must be taken in public, (3) the health
center violated provisions of the act relating to execu-
tive sessions, (4) his rights to due process will be vio-
lated because the commission’s final decision precludes
him from asserting his employment rights, (5) the
redacted records at issue are not preliminary drafts or
notes, (6) the commission improperly concluded that
the health center had in good faith determined that the
preliminary notes should be exempt pursuant to § 1-
210 (b) (1) because the public interest in withholding
the documents outweighs the public interest in disclo-
sure, and (7) the commission erred in its application
of § 1-210 (e) to the comments of the committee mem-
bers. As relief, the plaintiff sought production of the
redacted final comments and ratings from the commit-
tee members that were delivered to the dean for his
final review.5
The trial court issued a memorandum of decision,
in which it dismissed the plaintiff’s appeal. The court
declined to rule on the following issues raised by the
plaintiff because the claims were not asserted before
the commission: (1) the health center violated § 1-225
because the committee members had not reduced their
comments to writing, (2) the health center erred
because the committee votes must be taken in public,
and (3) the health center violated provisions of the act
relating to executive sessions. The court also held that
the plaintiff’s due process claim could not be raised in
an administrative appeal before the trial court. As to
the remaining claims, the court concluded that the indi-
vidual comments and ratings that the committee mem-
bers made during the deliberative process constituted
preliminary drafts or notes that were exempt from dis-
closure under § 1-210 (b) (1). It concluded further that
the commission correctly determined that the health
center, pursuant to § 1-210 (b) (1), properly had
resolved the balance between secrecy and disclosure
of the preliminary drafts or notes in good faith. The
court further concluded that § 1-210 (e) (1) did not
require production of the committee members’ final
comments and ratings because they were ‘‘preliminary’’
to the committee’s recommendation to the dean. This
appeal followed.
The plaintiff claims that the trial court improperly
concluded that the commission properly determined
that the redacted records at issue, the final versions
of the comments and ratings of the members of the
committee that were delivered to the dean with the
committee’s joint recommended rating, were exempt
from disclosure under the act pursuant to § 1-210 (b)
(1) and (e) (1). The plaintiff argues that the redacted
records he seeks are the final result of the committee’s
administrative function. The health center argues, to the
contrary, that the redacted records constitute exempt
preliminary drafts or notes because they consist of the
individual comments and ratings of the committee
members, which preceded both the committee’s joint
recommendation and the dean’s final decision. We
agree with the defendants that the trial court properly
concluded that the commission correctly determined
that the redacted records at issue were exempt pursuant
to § 1-210 (b) (1). However, for the reasons set forth
in part II of this opinion, we disagree with the defen-
dants that the trial court properly concluded that the
commission correctly determined that the redacted
records were exempt pursuant to § 1-210 (e) (1).
‘‘The scope of our review of the merits of the plain-
tiffs’ argument is governed by a provision of the [act],
General Statutes § 1-206 (d), and complementary rules
of the Uniform Administrative Procedure Act . . .
General Statutes § 4-166 et seq. [W]e must decide, in
view of all of the evidence, whether the agency, in
issuing its order, acted unreasonably, arbitrarily or ille-
gally, or abused its discretion. . . . Even as to ques-
tions 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. . . . Conclusions of law reached by the
administrative agency must stand if the court deter-
mines that they resulted from a correct application of
the law to the facts found and could reasonably and
logically follow from such facts. . . . 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.’’
(Footnote omitted; internal quotation marks omitted.)
Coalition to Save Horsebarn Hill v. Freedom of Infor-
mation Commission, 73 Conn. App. 89, 92–93, 806 A.2d
1130 (2002), cert. denied, 262 Conn. 932, 815 A.2d 132(2003). Where, as in this case, the application of the
statute to the documents at issue is fact bound, the
abuse of discretion standard governs the appeal. Id.By way of background, we discuss briefly the policy
of the act. ‘‘[T]he overarching legislative policy of [the
act] is one that favors the open conduct of government
and free public access to government records. . . . [I]t
is well established that the general rule under the [act]
is disclosure, and any exception to that rule will be
narrowly construed in light of the general policy of
openness expressed in the [act]. . . . [Thus] [t]he bur-
den of proving the applicability of an exception [to
disclosure under the act] rests upon the party claiming
it.’’ (Citation omitted; internal quotation marks omit-
ted.) Lieberman v. Aronow, 319 Conn. 748, 754–55, 127
A.3d 970 (2015).
I
We first address the plaintiff’s claim that the trial
court improperly concluded that the commission prop-
erly determined that the redacted records at issue were
exempt pursuant to § 1-210 (b) (1). Section § 1-210 (b)
(1) provides: ‘‘Nothing in the Freedom of Information
Act shall be construed to require disclosure of: . . .
Preliminary drafts or notes provided the public agency
has determined that the public interest in withholding
such documents clearly outweighs the public interest
in disclosure . . . .’’ Consequently, a party claiming
that records are exempt from disclosure under § 1-210
(b) (1) must prove, first, that the records are preliminary
drafts or notes and, second, that the public interest in
withholding the documents clearly outweighs the public
interest in disclosure. See Lewin v. Freedom of Infor-
mation Commission, 91 Conn. App. 521, 526, 881 A.2d
519, cert. denied, 276 Conn. 921, 888 A.2d 88 (2005).
With respect to § 1-210 (b) (1), ‘‘Wilson v. Freedom
of Information Commission, 181 Conn. 324, 332–33,
435 A.2d 353 (1980), defined preliminary drafts in a
manner that our courts subsequently have uniformly
applied. [T]he 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. . . . 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 for-
mal and informed [decision-making].’’ (Internal quota-
tion marks omitted.) Coalition to Save Horsebarn Hill
v. Freedom of Information Commission, supra, 73
Conn. App. 95.
‘‘Preliminary is defined as something that precedes
or is introductory or preparatory. As an adjective it
describes something that is preceding the main dis-
course or business. A draft is defined as a preliminary
outline of a plan, document or drawing . . . . By using
the nearly synonymous words preliminary and draft,
the legislation makes it very evident that preparatory
materials are not required to be disclosed.’’ (Citation
omitted; emphasis omitted; internal quotation marks
omitted.) Van Norstrand v. Freedom of Information
Commission, 211 Conn. 339, 343, 559 A.2d 200 (1989).
‘‘[T]he concept of preliminary [within the meaning
of § 1-210 (b) (1)], as opposed to final, should [not]
depend upon . . . whether the actual documents are
subject to further alteration. . . . [P]reliminary drafts
or notes reflect that aspect of the agency’s function
that precedes formal and informed [decision-making].
. . . It is records of this preliminary, deliberative and
predecisional process that we conclude the exemption
was meant to encompass.’’ (Citation omitted; internal
quotation marks omitted.) Shew v. Freedom of Informa-
tion Commission, 245 Conn. 149, 165, 714 A.2d 664(1998).
Applying these principles to the present case, we
conclude that the commission correctly determined
that the redacted records are preliminary drafts or notes
within the meaning of § 1-210 (b) (1). The redacted
records at issue consist of the individual comments and
ratings of the committee members made during the
deliberative process of the multistep committee process
during which the committee members deliberate in the
form of stated impressions in order to reach a finalized,
collective recommendation for the dean. The stated
individualized impressions, in and of themselves, pre-
cede the formal and informed collective recommenda-
tion of the committee.
The plaintiff argues that, even if the commission prop-
erly determined that the redacted records are prelimi-
nary drafts or notes within the meaning of § 1-210 (b)
(1), the commission improperly determined that the
benefit of withholding the records at issue outweighs
the public interest in disclosure. The plaintiff contends
that withholding the records hinders the ability to justify
the use of public funds to support a state employee’s
salary. The health center argues that it provided suffi-
cient reasoning establishing that the chilling effect on
candid, uninhibited discussion met the statutory
requirements of § 1-210 (b) (1). We disagree with the
plaintiff and conclude that the commission did not
abuse its discretion when it determined that the benefit
of withholding the records at issue outweighs the public
interest in disclosure.
‘‘The responsibility for balancing those public inter-
ests rests specifically with the public agency involved.
. . . However, the statute’s language strongly suggests
that the agency may not abuse its discretion in making
the decision to withhold disclosure. The agency must,
therefore, indicate the reasons for its determination
to withhold disclosure and those reasons must not be
frivolous or patently unfounded.’’ (Citation omitted;
internal quotation marks omitted.) Lewin v. Freedom
of Information Commission, supra, 91 Conn. App. 526.
In its final decision, the commission found that the
respondents determined that public disclosure of the
records would have a chilling effect on the willingness
of the committee members to provide the candid assess-
ments that are necessary to ensure an objective evalua-
tion process. At the December 8, 2016 hearing before the
commission, Simon testified that allowing disclosure
would have a chilling effect on the deliberative process.
In addition to his testimony at the hearing, Simon testi-
fied in an affidavit that he is able to solicit honest and
candid assessments from the committee members
because of an assurance that their honest and candid
assessments will be confidential. Simon testified further
that, without the assurance of confidentiality, he is cer-
tain that there would be a chilling effect on the willing-
ness of the committee members to provide the candid
assessments that are necessary to ensure a fair, objec-
tive, and unbiased evaluation process and, therefore,
allowing disclosure would cause committee members
to quit. Our review of the reasons set forth by the health
center persuades us that the commission did not abuse
its discretion in finding that the notes were exempt
from disclosure under § 1-210 (b) (1).
II
The plaintiff next claims that, even if the notes were
exempt from disclosure pursuant to § 1-210 (b) (1), the
commission abused its discretion in its application of
§ 1-210 (e) (1) to the records at issue. We agree with
the plaintiff.
Section 1-210 (e) (1) provides: ‘‘Notwithstanding the
provisions of subdivisions (1) and (16) of subsection
(b) of this section, disclosure shall be required of: . . .
Interagency or intra-agency memoranda or letters, advi-
sory opinions, recommendations or any report compris-
ing part of the process by which governmental decisions
and policies are formulated, except disclosure shall not
be required of a preliminary draft of a memorandum,
prepared by a member of the staff of a public agency,
which is subject to revision prior to submission to or
discussion among the members of such agency.’’ ‘‘Docu-
ments that qualify for the [§ 1-210 (b) (1)] exemption
nonetheless may be disclosable under [§ 1-210 (e) (1)]
if they constitute interagency or intra-agency memo-
randa or letters, advisory opinions, recommendations
or any report comprising part of the process by which
governmental decisions and policies are formulated
. . . . The disclosure provisions of [§ 1-210 (e) (1)] are
qualified, however, in that disclosure shall not be
required of a preliminary draft of a memorandum, pre-
pared by a member of the staff of a public agency,
which is subject to revision prior to submission to or
discussion among the members of such agency . . . .’’
(Citation omitted; internal quotation marks omitted.)
Shew v. Freedom of Information Commission, supra,245 Conn. 165–66.6
The issue to be resolved in the present case is whether
the final comments and ratings of the committee mem-
bers, which are delivered to the dean, fall under the
preliminary draft subject to revision exemption within
§ 1-210 (e) (1). Thus, we begin by determining the mean-
ing of the exemption. ‘‘When construing a statute, [o]ur
fundamental objective is to ascertain and give effect to
the apparent intent of the legislature. . . . In other
words, we seek to determine, in a reasoned manner,
the meaning of the statutory language as applied to the
facts of [the] case, including the question of whether
the language actually does apply. . . . 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.’’
(Internal quotation marks omitted.) McCall v. Sopneski,
202 Conn. App. 616, 622, A.3d (2021). ‘‘The
intent of the legislature, as [our Supreme Court] has
repeatedly observed, is to be found not in what the
legislature meant to say, but in the meaning of what it
did say.’’ (Internal quotation marks omitted.) Commis-
sioner of Emergency Services & Public Protection v.
Freedom of Information Commission, 330 Conn. 372,
393, 194 A.3d 759 (2018).
‘‘In analyzing [§ 1-210 (e) (1)], we must . . . construe
the words used according to their commonly approved
usage. . . . While the language initially removes many
kinds of material from the exempt status, this additional
requirement for disclosure is immediately qualified in
two important respects. First, the material to be dis-
closed must [comprise] part of the process by which
governmental decisions and policies are formulated.
Second, disclosure shall not be required of a preliminary
draft of a memorandum, prepared by a member of the
staff of a public agency, which is subject to revision
prior to submission to or discussion among the mem-
bers of such agency.’’ (Citation omitted; emphasis omit-
ted; internal quotation marks omitted.) Van Norstrand
v. Freedom of Information Commission, supra, 211
Conn. 347.
The commission, here, found that the ‘‘redacted por-
tions of the requested records are not interagency or
intra-agency memoranda, letters, advisory opinions,
recommendations or reports, within the meaning of
§ 1-210 (e) (1) . . . .’’ It provided no rationale for this
conclusion. Similarly, the health center’s appellate brief
provides no analysis of this issue other than to state
that the commission’s finding was appropriate and not
an abuse of discretion. In its appellate brief, the commis-
sion argues that § 1-210 (e) (1) does not apply to the
redacted member comments because ‘‘[t]he records at
issue, as identified at the [commission], are comprised
of the [committee] members’ individual thoughts and
impressions, which preceded a formal and informed
recommendation to the [d]ean,’’ and that ‘‘[t]he fact that
the comments and ratings may be printed out onto one
document (from the database) does not transform such
information into memoranda, letters, advisory opinions,
recommendations, nor reports.’’ (Internal quotation
marks omitted.) The trial court apparently adopted this
reasoning because it held that § 1-210 (e) (1) did not
apply because the members’ stated impressions and the
individual scores the committee members gave during
the process were ‘‘preliminary.’’
The plaintiff argues that the committee members’
final comments and ratings are memoranda, reports, or
recommendations, and that they were not preliminary,
as that term is used in § 1-210 (e) (1), because they
were available to and relied on by the dean in making
his final performance rating of the plaintiff.7 We agree
with the plaintiff that the final comments and ratings of
the committee members constitute recommendations.
‘‘In the absence of a statutory definition, words and
phrases in a particular statute are to be construed
according to their common usage. . . . To ascertain
that usage, we look to the dictionary definition of the
term.’’ (Internal quotation marks omitted.) Picco v.
Voluntown, 295 Conn. 141, 148, 989 A.2d 593 (2010). A
‘‘recommendation’’ is defined as ‘‘[t]he act of recom-
mending’’ and ‘‘[s]omething that recommends; specifi-
cally a favorable statement concerning character or
qualifications’’ of someone. The American Heritage Dic-
tionary of the English Language (5th Ed. 2011) p. 1469.
The term ‘‘recommend’’ is defined as ‘‘[t]o praise or
commend to another as being worthy or desirable;
endorse,’’ ‘‘[t]o make attractive or acceptable,’’ and ‘‘[t]o
advise or counsel [that something be done].’’ Id.The record, here, does not support the conclusion of
the commission that the redacted records do not con-
tain recommendations. According to the testimony pro-
vided at the case hearings, the individual comments
and ratings are evaluations by the committee members
of the work of their peers. The evidence in the record
and the testimony provided at the case hearings
describe the committee members’ commentary as
agreements or disagreements with the chairperson’s
evaluation. The committee members, in general, also
provide a rationale for their comments. The dean is
presented with the final commentary of the committee
members, observes why the committee members voted
in a certain manner, and reviews the individual com-
ments and ratings when arriving at a final decision. The
final comments and ratings provided by the committee
members are no less of a recommendation as to how the
plaintiff should be reviewed than is the chairperson’s
evaluation. Furthermore, the record is clear that the
dean reviews these final comments and ratings when
deciding how to rate the plaintiff. Thus, although the
individual committee members’ comments and ratings
are initially submitted as recommendations for the pur-
pose of the committee’s deliberations, the final version
of the comments and ratings serve as recommendations
for the purpose of the dean’s review of the faculty
member’s rating. As mentioned earlier in this opinion,
the comments and ratings include the committee mem-
bers’ individual agreement or disagreement with the
chairperson and with each other, and individual assess-
ments of merit in each particular category and on an
aggregate basis. These comments and ratings in effect
‘‘counsel or advise’’ the dean in determining whether
to approve the faculty rating provided by the joint com-
mittee or by the chairperson, especially in light of the
‘‘generic’’ recommendation provided by the joint com-
mittee. Therefore, the individual committee members’
comments and ratings are recommendations for the
purpose of the dean’s determination, and, thus, they
constitute ‘‘recommendations . . . comprising part of
the process by which governmental decisions and poli-
cies are formulated . . . .’’ General Statutes § 1-210 (e)
(1). Section 1-210 (e) (1) therefore requires that they
be disclosed unless they fall under that section’s exemp-
tion for ‘‘preliminary draft[s] of a memorandum . . . .’’
We conclude that they do not fall under the exemption.
Accordingly, we conclude that the trial court and the
commission misapplied the term ‘‘preliminary,’’ as it is
used in § 1-210 (e) (1).
Section 1-210 (e) (1) exempts from disclosure ‘‘pre-
liminary draft[s] of a memorandum, prepared by a mem-
ber of the staff of a public agency, which is subject to
revision prior to submission to or discussion among
members of such agency.’’ Both the court and the com-
mission concluded that the comments of the committee
members were ‘‘preliminary’’ because they preceded
the dean’s final recommendation. Although that is a
proper interpretation of how the word is used in § 1-
210 (b) (1), it is clear that ‘‘preliminary’’ has a more
limited meaning in § 1-210 (e) (1). Under that section,
a memorandum is preliminary if it is ‘‘subject to revision
prior to submission . . . .’’ General Statutes § 1-210 (e)
(1). Applying this definition to the facts of this case,
the preliminary comments and ratings by the committee
members that were subject to revision after discussion
among the committee members were preliminary and
not subject to disclosure. However, the final comments
and ratings by each committee member that were deliv-
ered to the dean were no longer subject to revision, and
the individual comments and ratings by each committee
member were utilized by the dean to review why the
committee members voted in a certain manner. Accord-
ingly, those comments and ratings were not ‘‘prelimi-
nary’’ under the definition provided in § 1-210 (e) (1).
Significantly, the plaintiff only seeks disclosure of the
final comments and ratings provided by the committee
members and not their preliminary comments and rat-
ings that may have been revised, to the extent that those
documents still exist.
We conclude that this is the only logical conclusion
that can be reached by reading § 1-210 (b) (1) and (e)
(1) together, particularly given that § 1-210 (e) (1) spe-
cifically was adopted, at least in part, to require disclo-
sure of preliminary notes and drafts that otherwise
would be protected from disclosure under § 1-210 (b)
(1).
Our Supreme Court’s decision in Wilson v. Freedom
of Information Commission, supra, 181 Conn. 324, pro-
vides helpful context to the interplay of § 1-210 (b) (1)
and (e) (1). In Wilson, our Supreme Court addressed
whether recommendations from members of a program
review committee (PRC) established by the University
of Connecticut that were made to the plaintiff, the vice
president of academic affairs, were required to be dis-
closed under what is now § 1-210 (b) (1) of the act.
‘‘The function of the PRC was to review the operations
of the various academic departments of the university
and to make recommendations to [the plaintiff] aimed
at improving efficiency in those departments. The rec-
ommendations, which took the form of periodic memo-
randa directed to [the plaintiff], included changes in
the existing administrative structure and programs
within the university.’’ Id., 326. The issue before the
court in Wilson was whether the memoranda provided
to the plaintiff constituted preliminary notes or drafts
that were exempt from disclosure. See id., 327. ‘‘Both
the commission and the trial court concluded that the
PRC documents were not preliminary drafts or notes.
They based this conclusion on the fact that the docu-
ments 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 them-
selves.’’ (Footnote omitted; internal quotation marks
omitted.) Id., 330–31.
Our Supreme Court disagreed and held 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. . . . 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 [decision-making]. We believe that the legisla-
ture sought to protect the free and candid exchange
of ideas, the uninhibited proposition and criticism of
options that often precedes, and usually improves the
quality of, governmental decisions. It is records of this
preliminary, deliberative and predecisional process that
we conclude the exemption was meant to encompass.’’
(Citations omitted; internal quotation marks omitted.)
Id., 332–33.
Wilson predated the adoption of § 1-210 (e) (1). In
fact, our Supreme Court, in Van Norstrand v. Freedom
of Information Commission, supra, 211 Conn. 346 n.3,
noted that the legislative history of No. 81-431 of the
1981 Public Acts demonstrates that the enactment of
what is now § 1-210 (e) (1) was motivated in part by
the Supreme Court’s decision in Wilson.8 Thus, in Wil-
son, our Supreme Court held that comments and recom-
mendations, very similar to those at issue in the present
case, were protected from disclosure because they were
preliminary notes or drafts under § 1-210 (b) (1). Wilson
v. Freedom of Information Commission, supra, 181
Conn. 332–33. In response, our legislature added § 1-
210 (e) (1) to the act to require the production of such
records unless they were subject to further revision
before being transmitted interagency or intra-agency.
Reading ‘‘preliminary’’ to cover any document that pre-
cedes the final decision of an agency, as the court and
the commission did in this case, essentially renders § 1-
210 (e) (1) meaningless.
Our conclusion also is consistent with our Supreme
Court’s analysis in Van Norstrand v. Freedom of Infor-
mation Commission, supra, 211 Conn. 339. In Van Nor-
strand, the Journal Inquirer newspaper sought disclo-
sure from the speaker of the House of Representatives
‘‘of the data he had obtained as the result of a survey of
members of the Connecticut Bar Association evaluating
various characteristics of the judges of the Superior
Court. . . . The qualities of the individual judges evalu-
ated included judicial integrity, demeanor, diligence,
caseflow management, familiarity with current law,
soundness of written rulings and worthiness for reten-
tion. Fifteen hundred completed questionnaires were
returned. The questionnaires included evaluations of
judges who were not scheduled for reappointment in
1986, as well as those of judges who were [scheduled
for reappointment].
‘‘The data thus acquired were thereafter compiled in
a numerical format for all of the judges. Those with the
least favorable ratings were reviewed by the plaintiff
to determine which of them were scheduled for reap-
pointment in 1986. After this, the information concern-
ing judges not due for reappointment was excised from
the final survey results. The plaintiff testified that the
only purpose in gathering information about those
judges whose terms were not expiring in 1986 was to
ensure general statistical reliability. The excised data
were not presented to the legislature or to any legisla-
tive committee nor were they used in any way in the
legislative [decision-making] process.’’ Id., 340–41.
The issue in Van Norstrand was whether the survey
information related to judges not scheduled for reap-
pointment in 1986 had to be disclosed. The court deter-
mined that the information did not have to be disclosed
because it was included in a preliminary draft as defined
in § 1-210 (e) (1). Id., 343–48. Critical to the court’s
analysis were ‘‘the fact that the data concerning judges
not scheduled for reappointment were obtained solely
to establish the statistical validity of the survey; and
. . . the fact that the requested information was there-
after excised as irrelevant from the summary before it
was circulated or used in the deliberative process.’’ Id.,
343. Significantly, the court further explained: ‘‘Had the
purpose of the survey been to compile data with respect
to all judges in the state which would thereafter be
used in connection with their respective reap-
pointments, whenever they might be, then the [commis-
sion] would be correct in asserting that the survey was
not a draft document but rather a completed docu-
ment.’’ (Emphasis in original.) Id.
In this case, the final individual comments and ratings
provided by the committee members to the dean were
used in the dean’s deliberative process and were part
of a completed, not draft, document. Consequently, they
are distinguishable from the draft information withheld
in Van Norstrand. Instead, they are precisely the type
of documents that our Supreme Court in Van Norstrand
stated should be produced pursuant to § 1-210 (e) (1).
Accordingly, we conclude that the trial court improp-
erly concluded that the commission had correctly
applied § 1-210 (e) (1) to the final comments and ratings
at issue in the present case.
Because § 1-210 (e) (1) requires the requested docu-
ments to be produced, even though disclosure would
not otherwise be required under § 1-210 (b) (1), the
trial court abused its discretion when it dismissed the
plaintiff’s appeal.9 The plaintiff is entitled to judgment
in his favor requiring the disclosure of the final com-
ments and ratings by the committee members that were
delivered to the dean. In light of this conclusion we
need not address the plaintiff’s other claims that the
trial court failed to consider whether the commission
failed to apply certain statutes of the act and chapters
563 and 563a of the General Statutes, his due process
rights have been or will be violated as a result of the
commission’s decisions, and other statutes mandate
disclosure of the documents.
The judgment is reversed and the case is remanded
with direction to render judgment for the plaintiff.
In this opinion the other judges concurred.
1
The named respondents before the commission were the Chief Executive
Officer for Health Affairs of the health center and the health center.
2
The plaintiff’s request actually referred to a ‘‘post-tenure’’ review. The
annual evaluative process may lead to a post-tenure review of a tenured
faculty member if the faculty member receives at least two ‘‘marginal perfor-
mance’’ ratings in a five year period that commences when tenure is awarded
or it may lead to a post-tenure review if the faculty member receives one
‘‘not acceptable performance’’ rating. Although the health center originally
indicated that the plaintiff had been subjected to a post-tenure review, during
the hearings before the commission, the plaintiff affirmed that the health
center’s invocation of the post-tenure review process was a procedural error;
the plaintiff was never subject to post-tenure review.
3
Although the full committee has ten voting members, a committee mem-
ber can recuse himself or herself from voting on the faculty member’s rating
if they feel it is appropriate to do so. In the case of the plaintiff’s evaluation
process, Simpson testified that the plaintiff’s chairperson would normally
recuse herself because the plaintiff was in her department.
4
The record is unclear as to how the individual assessments of merit in
each particular category, and then on an aggregate basis, correspond to the
final number rating representing the joint recommendation to the dean.
5
Although the plaintiff’s prayer for relief in his complaint provides that
the health center ‘‘should promptly provide the redacted performance evalu-
ation’’ to the plaintiff, his complaint makes clear that he is seeking the final
comments and ratings provided to the dean. He similarly confirmed at oral
argument before this court that he is seeking only the final committee
member comments and ratings that were provided to the dean. In addition,
the complaint concedes that it is appropriate for the health center to maintain
the anonymity of the authors of the comments.
6
Although both the commission and health center cite to Shew in their
appellate briefs, they do so only as to the definition of ‘‘preliminary’’ under
§ 1-210 (b) (1). They do not discuss or rely on the court’s analysis in that
case of the applicability of § 1-210 (e) (1) to the documents requested.
Although neither appellee relies on Shew to argue that the individual commit-
tee recommendations delivered to the dean were preliminary drafts subject
to revision, we have considered the applicability of Shew to our analysis
and conclude that its facts are distinguishable as they relate to the application
of § 1-210 (e) (1). At issue in Shew were the summaries of interviews con-
ducted by an outside attorney retained by the town of Rocky Hill. See Shew
v. Freedom of Information Commission, supra, 245 Conn. 151. The court
held that the attorney was a member of the staff of the town for purposes
of the predecessor to § 1-210 (e) (1), and her summaries that later were
incorporated into a report prepared by the town constituted preliminary
drafts subject to revision. See id., 165–67. Unlike the attorney’s summaries
in Shew, the final comments and ratings of the committee members in the
present case were not subject to revision for inclusion in a final report.
Instead, they constituted the final recommendations of the members, which
the dean used in determining the final rating to give the plaintiff.
7
The plaintiff does not claim that the committee members’ commentary
constitutes a letter and merely references ‘‘advisory opinions’’ in a bare
assertion that the redacted records must be disclosed to the plaintiff. See
Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 444, 35
A.3d 188 (2012) (‘‘It is well established that [w]e are not obligated to consider
issues that are not adequately briefed. . . . Whe[n] an issue is merely men-
tioned, but not briefed beyond a bare assertion of the claim, it is deemed
to have been waived.’’ (Internal quotation marks omitted.)).
8
During the Senate proceedings discussing the bill, its proponent, Senator
Wayne A. Baker made the following remarks: ‘‘[T]his bill originated in the
Government Administration and Elections Committee and its purpose was
to overturn the Supreme Court’s holding in a case of [Wilson v. Freedom
of Information Commission, supra, 181 Conn. 324]. . . . And so this bill
would require the disclosure of all interagency and intra-agency documents
which are part of the process of governmental decision-making and this
would include letters, advisory opinions, recommendations or any record
of agency deliberations by which governmental decisions and policies are
formulated or when a record does constitute a preliminary draft or [note],
unless the public interest in nondisclosure clearly outweighs the public
interest in disclosure. . . .
‘‘And finally, House Amendment D broadened the exemption from disclo-
sure for preliminary drafts of memos by striking a requirement in House
Amendment A that any subsequent revision would be by the author of the
memo. The effect is to exempt preliminary drafts of memos by agency staff,
memos which are subject to revision by anyone. . . .
‘‘The Act creates broad rights of public access to the records of meetings
of all public agencies. It also contains a limited number of exceptions to
the general rule of disclosure and openness. All of this is consistent with
the Freedom of Information laws intent that the people have the fundamental
right to know in a timely fashion not only what governmental decisions are
but what considerations go into those decisions. Unfortunately, our Supreme
Court has said in the case of [Wilson v. Freedom of Information Commis-
sion, supra, 181 Conn. 324] that the [act] should be interpreted as having
the same meaning as the federal act even where their language and legislative
policy are dissimilar. Mr. President, this bill basically reaffirms and clarifies
the original intent and purpose in light of that case. It makes clear, hopefully
once and for all, that the deliberative process of government agencies shall
be open to the public except where the legislature alone determines a
superior public interest in confidentiality.’’ 24 S. Proc., Pt. 17, 1981 Sess.,
pp. 5418–23, remarks of Senator Wayne A. Baker.
In addition to Senator Baker’s statement, Senator Clifton A. Leonhardt
remarked: ‘‘I think that if the [Wilson] decision had been allowed to stand,
there really would have been such a large gap or loophole in the Freedom
of Information’s statutes for interagency and intra-agency memorandas that
it really would have, in effect gutted the Freedom of Information statutes.’’
Id., pp. 5423–24, remarks of Senator Clifton A. Leonhardt. Senator Leonhardt
further remarked: ‘‘As I listen to this colloquy, Mr. President, I think Senator
Baker is correct that there will certainly be some cases that are somewhat
close and that will require interpretation by the [c]ommission, but I do think
that there is a clear and fundamental distinction between the types of
documents that this bill will make open to public inspection. [Intra-agency],
excuse me, interagency or [intra-agency] memoranda or letters, advisory
opinions, recommendations or any report comprising part of the process
by which governmental decisions and policies are formulated, that on the
one hand implies a finished government document which is having an impact
on decision-making is a decision-making document. I think that is quite a
clear thing, as compared to the long-standing exception under the Freedom
of Information law in the file copy in lines 50 to 53, preliminary drafts and
notes provided the public agency is determined that the public interest
in withholding such documents clearly outweighs the public interest in
disclosure. So, I think on the one hand one is talking about a finished
document and on the other hand, one is talking about preliminary drafts
or notes and so I think that again, the [government administration and
elections] committee is to be commended on drawing a clear and proper
distinction here and one that will not allow the preliminary drafts and notes
exception to be so much expanded that it eventually swallows the rule of
disclosure.’’ Id., pp. 5428–29.
9
To the extent we consider the health center’s policy argument that
requiring disclosure of the final comments and ratings by committee mem-
bers will chill the discussion that is a necessary part of the peer review
process and discourage faculty members from serving on the committee,
we are not persuaded. The health center can protect from disclosure the
comments and ratings by the committee members by choosing not to dis-
close them to the dean, and, instead, by providing the dean with just the
joint final recommendation of the committee. If the health center did so,
the committee members could discuss freely their views of the person they
are evaluating, without worry that their comments and ratings would be
made public.