Opinion
No. CV05 400 80 40
October 30, 2006
MEMORANDUM OF DECISION
I. STATEMENT OF APPEAL
The plaintiff, Misty Williams and intervenor Dawn Massey, appeal the decisions of the defendant, the Connecticut Freedom Of Information Commission (commission), dismissing all eight of the plaintiff's complaints. The commissioner acted pursuant to General Statutes § 1-205(d). The plaintiff appeals pursuant to General Statutes §§ 1-206(d) and 4-183(a).
Section 1-205(d) of the General Statutes provides in relevant part: "(d) The commission shall, subject to the provisions of the Freedom of Information Act promptly review the alleged violation of said Freedom of Information Act and issue an order pertaining to the same. Said commission shall have the power to investigate all alleged violations of said Freedom of Information Act and may for the purpose of investigating any violation hold a hearing, administer oaths, examine witnesses, receive oral and documentary evidence, have the power to subpoena witnesses under procedural rules adopted by the commission to compel attendance and to require the production for examination of any books and papers which the commission deems relevant in any matter under investigation or in question . . ."
Section 1-206(d) of the General Statutes provides in relevant part: "Any party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183 . . ."
Section 4-183(a) of the General Statutes provides in relevant part: "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 . . ."
II BACKGROUND
The Return of Record [ROR] I shall refer to the record that contains FIC 2004-445, FIC 2004-458, FIC 2004-472, FIC 2004-500; ROR II shall refer to the record that contains FIC 2004-421, FIC 2004-428, and FIC 2004-495; and ROR III shall refer to FIC 2004-542.
The plaintiff, Misty Williams, is the mother of the intervenor, Dawn Massey, who acting on behalf of Massey, filed several complaints against the commission. The plaintiff filed the complaints alleging, inter alia, that the commission committed the following violations: (1) that requested documents were not provided; (2) that double-sided pages should only cost fifty cents, and; (3) that town of Branford (Branford) improperly certified the requested documents. (Plaintiff's Amended Complaint.) The commission consolidated the eight complaints into three hearings, as follows: (1) FIC 2004-445, FIC 2004-458, FIC 2004-472, FIC 2004-500; (2) FIC 2004-421, FIC 2004-428, and FIC 2004-495; and (3) FIC 2004-542.
The plaintiff believes she is "investigat[ing] the Branford Board of Assessment Appeals and its doings." Massey and her husband are engaged in a lawsuit against Branford alleging that certain irregularities occurred during its tax assessment of their property.
Some complaints involved in hearings were not appealed to this court.
After the three hearings, each hearing officer proposed dismissal of the respective complaints. (ROR I, Items 103-06; ROR II, Items 50-52; and ROR III, Item 20.) The commission then met after each hearing and accepted the recommendations of the hearing officers with minor non-substantive changes and dismissed all eight complaints. (ROR I, Items 107, 109-13; ROR II, Items, 54-57; and ROR III, Items 22-23.) The plaintiff then filed the appeal to this court on October 17, 2005 and an amended appeal on November 21, 2005. Massey filed a motion to intervene on November 23, 2005. The appeal was heard by the court on July 21, 2006.
III AGGRIEVEMENT
General Statutes § 4-183(a) provides in relevant part: "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 . . ." "[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002); see General Statutes § 4-183. "The concept of standing as presented . . . by the question of aggrievement is a practical and functional one designed to assure that only those with a genuine and legitimate interest can appeal an order." Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). "[A] plaintiff may prove aggrievement by relying on facts established in the record as a whole, including the administrative record." State Library v. Freedom of Information Commission, 240 Conn. 824, 832, 694 A.2d 1235 (1997). "In appeals pursuant to the Freedom of Information Act, aggrievement is determined in accordance with a twofold test . . . This test requires a showing of: (1) a specific personal and legal interest in the subject matter of the [commission's] decision; and (2) a special and injurious effect on this specific interest." (Citations omitted; internal quotation marks omitted.) Id., 833.
Although no testimony was presented at oral argument, the plaintiff alleges in her appeal that she was aggrieved by the decision of the commission. The court finds that the plaintiff is aggrieved by the FOIC's decision. The plaintiff filed the complaints with the FOIC that were dismissed and, therefore, shows a specific personal and legal interest in the subject matter of the commission's decision; and a special and injurious effect on this specific interest of the plaintiff.
B Timeliness of the Appeal and Service of Process
General Statutes § 1-206 provides in relevant part: "Any party aggrieved by the decision of [the freedom of information] commission may appeal therefrom, in accordance with the provisions of section 4-183." General Statutes § 1-206(d). Section 4-183 provides in relevant part: "Within forty-five days after mailing of the final decision under section 4-180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section, a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the Attorney General in Hartford . . ." General Statutes § 4-183(c).
The commission's final decisions were mailed to the parties on August 24, 2005, September 14, 2005, and November 9, 2005. (ROR I, Items 107, 109-13; ROR II, Items, 54-57; and ROR III, Items 22-23.) On October 4, 2005, the plaintiff served the commission, Dawn Massey, and Elizabeth Gilson. (Plaintiff's affidavit of service.) Since the appeal was served on the defendants within forty-five days of the mailing of the final decision to the plaintiff, the court finds that it is a timely appeal and proper service was made upon the parties.
Attorney for Branford.
C Final Decision and Exhaustion of Administrative Remedies
Under the exhaustion of administrative remedies doctrine, "the Superior Court has jurisdiction only over appeals from a final decision of an administrative agency." (Internal quotation marks omitted.) Fairfield v. Connecticut Siting Council, 238 Conn. 361, 369, 679 A.2d 354 (1996). The plaintiff has satisfied the exhaustion requirement because the plaintiff has no further remedy within the agency.
D Citation
On October 4, 2005, by U.S. Mail, postage prepaid, return receipt requested, and in accordance with General Statutes § 4-183(c)(1), the plaintiff served a copy of the appeal on the commission, Massey, and Attorney Gilson. (Plaintiff's affidavit of service.) The plaintiff included a citation with the service of process.
IV SCOPE OF REVIEW
"In challenging an administrative agency action, the plaintiff has the burden of proof . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003).
"Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . Neither [the Supreme Court] nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . .
"The substantial evidence rule governs judicial review of administrative fact-finding under UAPA. General Statutes § 4-183(j)(5) and (6). Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review. The burden is on the plaintiff to demonstrate that the agency's factual conclusions were not supported by the weight of substantial evidence on the whole record." (Citations omitted; internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136-37, 778 A.2d 7 (2001). CT Page 19956
V DISCUSSION A Certification of Requested Records
The first issue that the plaintiff raises in this appeal is whether in cases 421, 428, 445, 458, 495, and 500 "the purported certifications issued by the respondents to the complaint were statutorily proper." The plaintiff argues that "the meaning spirit and intent of the FOIA as well as §§ 7-23 and 7-36 indicate that properly certified records are competent evidence in a court proceeding." The plaintiff then lays out the specific requirements for a proper certification that she believes in her opinion constitute a proper certification. The defendant counters that the commission "correctly concluded that there are no statutory requirements set forth in the FOI Act for `certifying any copy' or `certifying to any fact' applicable to certified copies provided pursuant to such act." Furthermore, the commission correctly points out that §§ 7-23 and 7-36 are inapplicable to the present case.The plaintiff misinterprets General Statutes § 1-212(e) that states: "Except as otherwise provided by law, the fee for any person who has the custody of any public records or files for certifying any copy of such records or files, or certifying to any fact appearing therefrom, shall be for the first page of such certificate, or copy and certificate, one dollar; and for each additional page, fifty cents. For the purpose of computing such fee, such copy and certificate shall be deemed to be one continuous instrument." This section, as the defendant correctly points out, merely establishes fees for the certifying of a document and does not lay out the requisite elements of form or content of a certification. In addition, the plaintiff's reliance on § 7-23, that applies to municipal town clerks, not requests to the town clerk of Branford for certified documents and § 7-36, that applies to registrars of vital statistics, is entirely misplaced.
In an additional argument, the plaintiff alleges that "an inference can be drawn that the FOIC's non-ruling on the proper elements included in a certification, is, at least in part, improperly motivated by a desire on the part of the FOIC to conceal the fact that the FOIC, itself, fails to adequately certify records obtained from the FOIC fail to conform to the FOIC's own Advisory Opinion #76 and other statutory guideline . . . Simply put, the FOIC does not own a raised seal."
The defendant counters that the "plaintiff has not established which, if any, statute sets forth the requirement for proper certification applicable to the FOI Commission. As stated previously, the statutory provisions the plaintiff cited in her brief are only applicable to town clerks, notary republics and registrars of vital statistics, respectively and are not applicable to the FOI Commission . . . Advisory Opinion #76 has limited applicability to Town Clerks serving in their ex officio capacity of registrar of vital records, and to the unique and specific facts and circumstances presented in that application for an advisory opinion, i.e. the issue of certifying birth certificates. Advisory Opinion #76 is not binding in other cases unless the facts and circumstances are materially the same."
These arguments are absolutely meritless and completely unsupported by any relevant law in the plaintiff's brief or evidence in the record.
B Definition of the Term "Page" as Used in General Statutes § 1-212(a)
The second issue raised in the appeal concerns the definition of the word "page" as set forth in General Statutes § 1-212(a). The plaintiff argues that the term "page" is ambiguous, having two different meanings, "as aptly pointed out by the hearing officer, the term `page' has two commonly approved meanings: one referring to the writing on the side of paper (i.e., the information) and one referring to the physical object (i.e., sheet of paper)." The plaintiff argues that in her opinion, "since copying fees are generally intended to reimburse the municipality for the cost of reproducing records . . . the court should adopt the `physical object definition of the term `page' (i.e., a `page' as referring to the physical object comprising both sides of a sheet)."
The defendant counters that the commission "made a factual determination with respect to the meaning of the word `page' which determination was based on reliable, probative, and substantial evidence on the record." "Neither the plaintiff, nor the intervenor, offered any credible evidence to contest the [c]ommission's findings and conclusion." Moreover, the commission's "findings and conclusion that a page means the writing on one side of a sheet of paper reasonably and logically follows from the facts in the record and resulted from a correct application of the law to such facts."
The commission findings and conclusions regarding the term "page" are reasonable and supported by substantial evidence on the record. (ROR I, Item 103, p. 543; Items 110-13.) The plaintiff offers little more than her opinion on why her interpretation of the term "page" should be adopted and establishes nothing to support an error on the part of the commission. Again, the plaintiff has raised a meritless argument supported only by her opinion and no relevant legal authority.
C In-Camera Review of Exempt Documents
The plaintiff argues that the commission erred by failing to conduct an in-camera review of documents that were claimed exempt and were prejudiced in that they were unable to obtain disclosure of the requested record. The commission counters that it "properly determined that in-camera inspection of records beyond the scope of the plaintiff's records request was not necessary or required to render the [commission's] final decision in contested case [542]." Furthermore, the commission notes that "[o]rdering the respondent to submit personal property records for in-camera inspection when such records were not responsive to the plaintiff's request [for commercial and residential property records] would have been improper and [waste] of agency time and resources." (Emphasis in original.)
The court agrees with the commission. The commission stated in its final decision that the "respondent does not keep on file or maintain the record described in paragraphs 2 and 4, above, within the meaning of [§ 1-210(a)]. It is further found that such record never existed." (ROR III, Item 23.) The court finds that since the personal property record was not requested by the plaintiff, an in-camera review of the record was not necessary to the commission's decision.
D Additional Arguments
The plaintiff makes additional arguments that can be summed up as follows: (1) that the "FOIC err[ed] by relying upon a known, significant, factual inaccuracy"; (2) that the "FOIC err[ed] by failing to enforce its own regulations regarding the accessibility of records to members of the public"; (3) that "the FOIC err[ed] by failing to timely rule on petitions seeking party or intervenor status"; (4) that the "FOIC err[ed] by allowing ex parte communication between a commissioner member and the hearing officer"; and (5) that "it is the policy of the [c]ommission to deny requests by pro se litigants who request that the [c]ommission to sign subpoenas for witnesses that such pro se litigants might wish to examine.""We note that the plaintiff appears pro se. It is, of course, the policy of this court to allow great latitude to a litigant who, either by choice or necessity, represents himself in legal proceedings, so far as such latitude is consistent with the just rights of any adverse party." . . . This is because [a] party who, unskilled in such matters, seeks to remedy some claimed wrong by invoking processes which are at best technical and complicated, is very ill advised and assumes a most difficult task . . . Nonetheless, while the court exhibits some degree of leniency toward a pro se appellant, it cannot entirely disregard established principles of law." (Citations omitted; internal quotation marks omitted.) Mozzochi v. Freedom of Information Commission, 44 Conn.App. 463, 464-65, 688 A.2d 363, cert. denied, 241 Conn. 919, 696 A.2d 986, cert. denied, 522 U.S. 967, 118 S.Ct. 414, 139 L.Ed.2d 317 (1997). Furthermore, "assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims." (Internal quotation marks omitted.) Trappe v. Bolgard, 80 Conn.App. 384, 385, 835 A.2d 115 (2003).
Other than stating her opinions, the plaintiff has failed to provide any legal or factual support to these arguments. None of these arguments are supported by any relevant case law, analysis or citations to the record. Therefore, these claims are deemed abandoned and dismissed.
It should be noted that the purpose of the Freedom on Information statutes as enacted by our legislature was to provide assistance to the public to gain access to information that the public is entitled to. An examination of the documents, briefs, and record in this case indicates the municipality and FOIC have expended a great deal of time and expense in the defense of the claims advanced by the plaintiff that are hyper technical and not within the contemplation of the F.O.I. statutes. Not only are these claims frivolous they also serve no purpose.
All eight of these appeals are absolutely without merit. The appeals are dismissed.