Opinion
No. HHB-CV 06-4011045S
March 8, 2007
MEMORANDUM OF DECISION
The plaintiff, the commissioner of the department of public works (DPW), has filed this administrative appeal, pursuant to General Statutes § 4-183, seeking review of a final decision issued against him by the defendant, the freedom of information commission (the commission). The plaintiff contends that the final decision should be overturned because it was issued after the complainant had withdrawn his complaint and therefore the commission's jurisdiction had ceased and the matter had become moot. The plaintiff additionally contends that the commission's final decision is in error because the commission failed to properly apply General Statutes § 4b-27 as an exemption to disclosure under the Freedom of Information Act (FOIA). The court finds that this case must be dismissed because, as is more fully discussed below, the court lacks subject matter jurisdiction to hear the plaintiff's claims.
The plaintiff is claiming that the matter was moot before the commission, and therefore, the commission should have dismissed as moot. The court does not address that argument because the matter is moot before the court and consequently this court does not have jurisdiction.
FACTS
On November 15, 2005, a commercial real estate broker, John Keogh, sent a letter to the plaintiff requesting the identity and location of a property the DPW was negotiating to lease as well as the identity of that property's owner. In his letter to the plaintiff, Keogh specifically stated that he was not seeking "anything, such as estimates or evaluations of the property, that would be exempt from mandatory public disclosure under the law." The plaintiff responded to Keogh's letter of request on November 25, 2005, with a letter of denial stating that "[a]ny document containing the information you request would necessarily fall into the exempt category you cited, Section 1-210(b)(7)."
General Statutes § 1-210(b)(7) exempts from disclosure: "[t]he contents of real estate appraisals, engineering or feasibility estimates and evaluations made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts . . ."
In response to the plaintiff's refusal to release the requested information, Keogh made a timely appeal to the commission on November 30, 2005, alleging that the plaintiff violated the FOIA. Thereafter, the commission initiated proceedings for a contested case and scheduled a hearing for March 1, 2006, to determine whether a violation of the FOIA had occurred. On January 27, 2006, the plaintiff filed an appearance acknowledging the hearing date, however, when the day of the hearing arrived, the plaintiff failed to appear. The commission's hearing officer conducted the hearing without the plaintiff and, pursuant to regulations for a contested case, the record was closed to new evidence at the termination of the hearing.
The plaintiff's failure to appear resulted from a misunderstanding on the plaintiff's part concerning whether or not the hearing was proceeding on March 1, 2006.
Subsequently, on March 2, 2006, the plaintiff sent a letter to the commission apologizing for failing to appear at the March 1 hearing. In that letter, the plaintiff reiterated his belief that General Statutes § 1-210(b)(7) exempted the requested information from disclosure and additionally noted that General Statutes § 4b-27 would also exempt the requested information from disclosure.
General Statutes § 4b-27 states in part: "No person affiliated with any requesting agency shall discuss outside of that agency its real estate needs or interests prior to formal notification to the commissioner . . . Anyone who discloses any such information without authority by the commissioner before said information is made public by the commissioner shall be guilty of a class A misdemeanor."
On March 29, 2006, the commission released a proposed final decision with notice to the parties that a meeting would be held on April 26, 2006, at which time the commission would vote on whether to adopt the proposed final decision. The commission also informed the parties that they would have an opportunity to present oral arguments and submit briefs before the April meeting, but that no new evidence would be admitted unless either party requested that the hearing record be reopened. Neither party made a formal request to reopen the record.
During the intervening period between the issuance of the proposed final decision and the meeting on April 26, the plaintiff provided Keogh with the information he had originally requested. Subsequently, on April 12, 2006, Keogh informed the commission that he was withdrawing his complaint because the plaintiff had provided him with the requested information. On April 18, 2006, the plaintiff submitted a brief to the commission. In that brief, the plaintiff stated that he did not seek to reopen the case and argued, in part, that the case should be dismissed because Keogh had withdrawn his complaint.
At the meeting on April 26, the commission denied the plaintiff's request to dismiss the case and, after hearing oral argument from the plaintiff, voted to adopt the proposed final decision. In the adopted final decision, the commission concluded that the plaintiff had violated General Statutes § 1-210(a) by denying Keogh access to the requested information. In the final decision, the commission also addressed the plaintiff's claims of exemption and stated that because no evidence was submitted on the record to support the plaintiff's assertion that §§ 1-210(b)(7) or 4b-27 exempted the disclosure of the requested information, the plaintiff failed to meet his burden of proving that the information requested by Keogh was exempt from disclosure. As a result of the decision, the commission ordered the plaintiff to provide Keogh with the information he had originally requested. The final decision does not contain a civil penalty nor does it contain an order requiring the plaintiff to comply with the FOIA under future similar circumstances.
General Statutes § 1-210(a) covers access to public records and provides that: "[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to . . . receive a copy of such record in accordance with section 1-212." General Statutes § 1-212 states, in relevant part, that: "[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.
DECISION
Before the court can address the merits of this appeal, the question of mootness before this court must be resolved. "Mootness implicates the subject matter jurisdiction of [the] court." (Internal quotation marks omitted.) Packer v. Board of Education, 246 Conn. 89, 122, 717 A.2d 117 (1998). The Supreme Court has stated that "[i]t is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of the appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow . . . In the absence of any actual and existing controversy . . . the courts of this state may not be used as a vehicle to obtain judicial opinions upon points of law . . . and where the question presented is purely academic, we must refuse to entertain the appeal." (Internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 404-05, 857 A.2d 808, cert. denied, 126 S.Ct. 94 (2005) (2004). Therefore, if there is no longer an actual controversy in which the court can afford practical relief to the parties, the controversy is no longer justiciable and the court must dismiss the appeal. Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 240 Conn. 1, 6, 688 A.2d 314 (1997).
While an absence of a case or controversy will render a matter moot, a prospective order issued by the commission may create an ongoing controversy that defeats a claim of mootness. Id., 9. In Domestic Violence, the court determined that a prospective order issued by the commission, requiring the agency's future compliance with provisions of the FOIA, constituted an ongoing controversy that rendered the case not moot. Id., 8-9. Similarly, in Gifford v. Freedom of Information Commission, 227 Conn. 641, 631 A.2d 252 (1993), the Supreme Court determined that an ongoing controversy existed that rendered the case not moot. There, the commission had issued a prospective order requiring a police department to comply with the FOIA under future similar circumstances and had also cautioned the chief of police to comply with the law or face future consequences. Id., 649 n. 9.
The order stated: "Henceforth, [the plaintiff] shall strictly comply with the provisions of the FOIA." Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, supra, 240 Conn. 9.
The commission "cautioned [the chief of police] to take care to comply with the law in the future or [he] may risk further consequences for [his] continuing disregard of the law." Gifford v. Freedom of Information Commission, supra, 227 Conn. 649.
In the present case, however, the commission has not issued a prospective order. The final decision issued by the commission does not require future compliance under similar factual circumstances. Additionally, no civil penalty has been imposed, nor has the commission cautioned the plaintiff with personal action for any future non-compliance. In contrast, the order contained in the commission's final decision is narrow in scope, requiring only that the plaintiff provide Keogh with the specific requested information, information that the plaintiff had already voluntarily released prior to the commission's adoption of the proposed final decision. Consequently, because the final decision adopted by the commission does not contain a prospective order, no civil penalty has been imposed, and the information at issue had already been released prior to the commission's final decision, a determination by this court overturning the commission's final decision would not change the plaintiff's position or provide any practical relief. Therefore, because there is an absence of any actual case or controversy from which a determination by this court could provide any practical relief, the matter before this court is moot.
The order states: "The respondent shall forthwith provide the complainant with the requested records. The respondent may redact from the records any information other than the identity of the alternative property and its owner, as described in paragraphs 7, 9 and 15 of the findings, above."
The court notes that the question of whether the commission erroneously reviewed § 4b-27 is purely academic. The commission's decision is based on a finding that the plaintiff failed to establish, on the record, that this statute provided a valid exemption to the requested information. Thus, the commission's finding does not have an effect on future interpretations of § 4b-27.
The court holds that the matter being moot, it does not have subject matter jurisdiction and the case is dismissed.