NO. CV 08 4018120S

JAMES STRILLACCI, CHIEF OF POLICE

V.

FREEDOM OF INFORMATION
COMMISSION :

:

:


: SUPERIOR COURT

JUDICIAL DISTRICT OF

NEW BRITAIN


APRIL 20, 2009

MEMORANDUM OF DECISION

The plaintiff, James Strillacci, appeals from a May 28,2008, final decision of the freedom of information commission (FOIC) ordering him to release to complainant Norman Pattis a document, listing lawsuits, settled and pending, with West Hartford and its police personnel as defendants.1

The final decision (Return of Record, ROR, pp. 195-98) made the following relevant findings:

  1. By letter filed March 15,2007, the complainant appealed to the Commission, alleging that the [plaintiff] violated the Freedom of Information Act by denying the complainant's March 8, 2007 request for certain public records.

  2. It is found that the complainant by letter dated March 8, 2007 reiterated his earlier request for, among other records no longer at issue, a copy of "any and all documentation that you or your department retain regarding attorneys or law firms who bring lawsuits on behalf of plaintiffs against the town of West Hartford."

  3. It is found that the [plaintiff] maintains a list of lawsuits filed against him and officers in his department.

  4. It is found that the list contains the name of the suit, its subject matter, the date of the underlying incident, the attorneys representing the parties, and the status of the suit.

  5. It is found that the list also contains the [plaintiffs] own thoughts, interpretations and editorializing concerning the cases listed, under the categories of "subject" and "status."

  6. It is found that the [plaintiff] declined to provide the portion of the list of lawsuits described in paragraph 6, above. These redactions are the only record at issue in this case.

* * *

  1. It is concluded that the unredacted list is a public record within the meaning of § 1-200 (5), G.S.

* * *

  1. It is found that the [plaintiff] created the list to keep the basic facts of the cases listed straight in his own head.

  2. It is found that the [plaintiff] did not create the list on anyone's advice or for the use of any other public officer or employee.

  3. It is found that the list generally, and the redacted portion of the record in particular, was made by the [plaintiff] for his own use as a memory aid.

  4. It is found that the list, including the redacted portion of it, is a "note" within the meaning of § 1-210 (b)(1), G.S.

  5. It is found that the [plaintiff] failed to prove that the note at issue is preliminary, within the meaning of § 1-210 (b)(1), G.S.

  6. Therefore, it is concluded that the redacted portion of the list of lawsuits is not permissibly exempt from disclosure pursuant to § 1-210 (b)(1), G.S.

Based on these findings, the FOIC issued an order as follows:

  1. Forthwith, the [plaintiff] shall provide the complainant with the record at issue, unredacted.

The plaintiff timely took an administrative appeal under General Statutes § 4-183 from the FOIC's final decision. Subsequently on April 7, 2009, the plaintiff and defendant agreed to submit the document ordered disclosed in camera and under seal to the court.2 During the proceedings before the FOIC, the plaintiff had not submitted the document for review in camera. The findings #s 6 and 7, indicate that the redacted document is identical to the actual document, except that the lines for "subject" and "status" have been omitted. The order directs the plaintiff to supply the document to the complainant "unredacted."

The court has reviewed the document submitted in camera, as well as the so-called redacted document (ROR, pp. 33-36). The court makes the following observations. Both documents have been typed on a word-processor at different times and neither is hand-written. More importantly, the actual document is not just a more complete version of the "redacted" document, but a different document. For example, the document under seal mentions a "Disabella" suit giving the status as "settlement agreement approved by town counsel." The redacted document merely sets forth the status as "withdrawn." The "Colon" matter indicates the status as having gone to mediation, while the redacted document shows the status as "withdrawn." In the status block for the "Bartram" matter is given a history of the case and eventual jury verdict, including the substitution of complainant Pattis for another attorney, while the redacted document shows the status as "verdict for the defendants."

The court concludes that the issue is whether the original document now under seal was correctly ordered disclosed, without regard to whether the document found at pages 33-36 of the record was properly redacted. The plaintiff relies on the exemption provided by General Statutes § 1-210 (b) (2), preliminary drafts and notes,3 that states as follows: "Nothing in the Freedom of Information Act shall be construed to require disclosure of: (1) Preliminary drafts or notes provided the public agency has determine that the public interest in withholding such documents clearly outweighs the public interest in disclosure . . . ."

In reviewing the plaintiffs claim, the court must not "retry the case or substitute its judgment for that of the commission. Even as to questions of law, the court's ultimate duty is to decide only whether, in light of the evidence, the agency acted unreasonably, arbitrarily, illegally or in abuse of its discretion. Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and reasonably and logically could follow from those facts." Wiese v. Freedom of Information Commission, 82 Conn. App. 604, 608-609, 847 A.2d 1004 (2004).

The plaintiff and the FOIC agree that the document is a "note." The plaintiff argues that the document is "preliminary."4 A document is preliminary, however, if it "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." Shew v. Freedom of Information Commission, 245 Conn. 149, 165, 714 A.2d 664 (1998), quoting Wilson v. Freedom of Information Commission, 181 Conn. 324, 332-33, 435 A.2d 353 (1980). A "preliminary" document is one containing "data not required or germane to the eventual purpose for which [it] was undertaken and it was thereafter modified to excise the material that was irrelevant to its . . . purpose." Van Norstrand v. Freedom of Information Commission, 211 Conn. 339, 343, 559 A.2d 200 (1989).

The court has concluded on its review of the document in question that it is not "preliminary," as the plaintiff claims; rather, this was a completed document to be used by the plaintiff in the course of his public duties. The document was not expected to be modified nor did it contain information not "required or germane" to its ultimate purpose. Cf. Lewin v. Freedom of Information Commission, 91 Conn. App. 521, 881 A.2d 519, cert. denied 276 Conn. 921, 888 A.2d 88 (2005) (handwritten notes taken by ethics commission member during probable cause hearing exempt as preliminary); Coalition to Save Horsebarn Hill v. Freedom of Information Commission, 73 Conn. App. 89, 98, 806 A.2d 1130 (2002), cert. denied, 262 Conn. 932, 815 A.2d 132 (2003) (agency had compiled documents contemplating future contract).5

The FOIC did not act unreasonably, arbitrarily, illegally or in abuse of its discretion in ordering the document released. Therefore the appeal is dismissed.






Henry S. Cohn, Judge





1
Due to the order of the FOIC, aggrievement is found. State Library v. Freedom of Information Commission, 240 Conn. 824, 832, 694 A.2d 1235 (1997).


2
The appropriate steps under Practice Book § 11-20A to seal the document were taken by the plaintiff.


3
During the course of the argument, the plaintiff abandoned his further argument that the document contained matters that related to strategy on pending claims. § 1-210 (b) (4). In addition, the court will not rule on the plaintiffs claim that § 4-179 was violated as the claim is tied to an argument arising from the exemption of § 1-210 (b) (4).


4
The court rejects the argument that the word "preliminary" only modifies the word "drafts" and not "notes," so that all "notes" are an exemption. The intention of the legislation was to link "preliminary" with both "drafts" and "notes." This is a similar result to the exemption of § 1-210 (b) (2), "personnel or medical files and similar files," where "similar files" are tied to "personnel or medical files." Connecticut Alcohol & Drug Abuse Commission v. Freedom of Information Commission, 233 Conn. 28, 40-41, 657 A.2d 630 (1995).


5
Even if the court were to reach the second portion of exemption (b) (1) to consider whether the FOIC properly concluded that the plaintiff had not sufficiently considered the public interest, it would conclude that the FOIC correctly ordered the document disclosed.




The FOIC could reasonably conclude based on this record that a list kept by a town official of pending lawsuits and their status should be disclosed in the public interest. See Coalition to Save Horsebarn Hill v. Freedom of Information Commission, supra at 100-101 (2002).