FREEDOM OF
INFORMATION COMMISSION
OF THE STATE OF
CONNECTICUT
In the Matter of
a Complaint by FINAL
DECISION
Pasquale A.
DiFazio, Edith A. DiFazio and Paul T. DiFazio,
Complainants
against Docket #FIC 89-115
Executive
Director, Judicial Review Council of the State of Connecticut and Judicial
Review Council of the State of Connecticut,
Respondents March 14, 1990
The above-captioned matter was heard
as a contested case on August 24, 1989, at which time the complainants and the
respondents appeared, stipulated to certain facts and presented testimony,
exhibits and argument on the complaint.
After consideration of the entire
record, the following facts are found and conclusions of law are reached:
1.
The respondent Council maintains that it is not an executive body,
judicial body, or administrative body of the state, that it is independent of
all three branches of state government, and that therefore it is not a public
agency within the meaning of 1-18a(a), G.S.
2.
Section 1-18a(a) provides in pertinent part:
(a) "Public
agency" or "agency" means any executive, administrative or
legislative office of the state ... and any state ... agency, any department,
institution, bureau, board, commission, authority, or official of the state
.... [Emphasis added.]
3.
It is found that the respondent Council is an institution, bureau,
board, commission, or authority of the state.
4.
It is concluded that both respondents are public agencies within the
meaning of 1-18a(a), G.S.
5.
It is found that the complainants were appellants in Hartford National
Bank v. DiFazio, 6 Conn. App. 576 (1986), argued before Judges Hull, Daly and
Bieluch on November 13, 1985.
Docket #FIC
89-115 Page 2
6.
It is found that the complainants filed a complaint on November 11, 1986
with the respondent Council against then Judge Hull.
7.
It is found that the complaint described in paragraph 6, above, alleged
in part that portions of the tape recording of the November 13, 1985 oral
argument containing remarks by then Judge Hull had been erased, and requested
that the respondent Council appoint an audiotape expert to examine the tape
recording.
8.
It is found that the Council engaged an individual to examine the tape
recording (the "audiotape examiner").
9.
It is found that the complainants questioned the credentials and
expertise of the audiotape examiner selected by the respondents, and repeatedly
and unsuccessfully sought from the respondent Executive Director the name,
address and telephone number of the audiotape examiner, together with a copy of
any findings he submitted to the respondents.
10.
It is found that the complainants made their most recent request for the
records described in paragraph 9, above, by letter to the respondent Executive
Director dated March 21, 1989.
11.
It is found that by letter dated March 30, 1989, the respondent
Executive Director denied the complainants' March 21, 1989 request.
12.
By letter of complaint dated April 3, 1989 and filed with the Commission
on April 4, 1989, the complainants appealed to the Commission, alleging that
their requests for the following records had been denied:
a. the
name, address and telephone number of the audiotape examiner engaged by the
respondents;
b. the
name, address and telephone number of the company that employed the audiotape
examiner, or was partially or fully owned by the audiotape examiner;
c. the
audiotape examiner's findings presented to the respondent Council at the
Council's hearing of April 30, 1987; and
d. the
report prepared for the Governor by the respondent Council of its findings on
the complaint against then Judge Hull.
13.
It is found that the records sought by the complainants are public
records within the meaning of 1-18a(d), G.S.
Docket #FIC
89-115 Page 3
14.
With respect to the records described in paragraphs 12.b and 12.d,
above, it is found that the complainants failed to prove that they had
requested those records from the respondents within 30 days before the filing
of this complaint.
15.
It is concluded therefore that the Commission lacks jurisdiction
pursuant to 1-21i(b), G.S., to address those portions of the complaint
described in paragraphs 12.b and 12.d, above.
16.
With respect to the records described in paragraphs 12.a and 12.c, above,
the respondents maintain that those records are exempt from disclosure pursuant
to 51-51l, G.S.
17.
Section 51-51l, G.S., provides in pertinent part:
Any investigation to determine
whether or not there is probable cause that judicial conduct under section
51-51i has occurred shall be confidential and any individual called by the
commission for the purpose of providing information shall not disclose his
knowledge of such investigation to a third party unless the respondent requests
that such investigation and disclosure be open.
18.
With respect to the record described in paragraph 12.c, above, it is
found that the audiotape examiner's findings were presented to the respondent
Council in the form of testimony to the Council at its April 30, 1987 hearing
concerning then Judge Hull.
19.
It is found that the respondents caused a stenographic record to be made
of the April 30, 1987 hearing.
20.
It is concluded that the stenographic record described in paragraph 19,
above, is a public record within the meaning of 1-18a(e), G.S.
21.
It is also concluded that the stenographic record described in paragraph
19, above, was within the scope of the complainants' request for a copy of the
audiotape examiner's findings as presented to the respondents.
22.
It is found that the respondents' April 30, 1987 hearing was an
investigation to determine whether there was probable cause that judicial
conduct under 51-51i, G.S., had occurred.
23.
It is also found that disclosure of the stenographic record described in
paragraph 19, above, would disclose the respondents' investigation described in
paragraph 22, above.
Docket #FIC
89-115 Page 4
24.
It is concluded that disclosure of the stenographic record described in
paragraph 19, above, would violate the confidentiality provisions of
51-51l, G.S.
25.
It is concluded therefore that the respondents did not violate
1-15 and 1-19(a), G.S., by refusing to disclose the record described
in paragraphs 12.c. and 19, above.
26.
With respect to the record described in paragraph 12.a, above, the
respondents maintain that even if the audiotape examiner's name, address and
telephone number were disclosed to the complainants, the audiotape examiner
would be prohibited from disclosing his knowledge of the respondents'
investigation pursuant to 51-51l, G.S.
27.
It is concluded that the validity of the prohibition against individuals
called by the respondent Council for the purpose of providing information from
disclosing their knowledge of the respondent Council's investigation presents
an issue of constitutional law not properly raised before or addressable by the
Commission.
28.
It is concluded therefore that 51-51l, G.S., operates on its face
to protect the confidentiality of the respondent Council's investigations if
the record described in paragraph 12.a, above, is used by the complainant to
contact the audiotape examiner.
29.
It is also found that the record described in paragraph 12.a, above, is
only a record of the audiotape examiner's identity and a means of contacting
him in order to ascertain, for example, his professional qualifications and
expertise.
30.
It is also found that the record described in paragraph 12.a, above, is
not itself an investigation by the respondent Council within the meaning of
51-51l, G.S., any more than a record of the names and addresses of the
members of the Council who participated in the Council's April 30, 1987 meeting
is an investigation by the Council, which latter record was in fact disclosed
by the respondents to the complainants.
31.
It is concluded therefore that 51-51l, G.S. does not exempt from
disclosure the record described in paragraph 12.a, above.
32.
It is further concluded that the respondents violated 1-15 and
1-19(a), G.S., by refusing to disclose to the complainants the record described
in paragraph 12.a, above.
The following order by the
Commission is hereby recommended on the basis of the record concerning the
above-captioned complaint:
Docket #FIC
89-115 Page 5
1.
The respondents shall forthwith provide to the complainants the record
described in paragraph 12.a. of the findings above.
Approved by
order of the Freedom of Information Commission at its regular meeting of March
14, 1990.
Tina C.
Frappier
Acting Clerk
of the Commission
Docket #FIC
89-115 Page 6
PURSUANT TO
SECTION 4-180(c), G.S. THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST
RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF
THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.
THE PARTIES TO
THIS CONTESTED CASE ARE:
PASQUALE A.
DIFAZIO, EDITH A. DIFAZIO AND PAUL T. DIFAZIO
c/o Robert L.
Hirtle, Jr., Esquire
Rogin, Nassau,
Caplan, Lassman & Hirtle
CityPlace - 22nd
Floor
Hartford, CT
06103
EXECUTIVE
DIRECTOR, JUDICIAL REVIEW COUNCIL OF THE STATE OF CONNECTICUT AND JUDICIAL
REVIEW COUNCIL OF THE STATE OF CONNECTICUT
c/o John D.
LaBelle, Esq.
LaBelle &
LaBelle, P.C.
P.O. Box 511
Manchester, CT
06040
Tina C.
Frappier
Acting Clerk
of the Commission