People for the Ethical Treatment of Animals, Inc. v. Freedom of Information Commission
People for the Ethical Treatment of Animals, Inc. v. Freedom of Information Commission
Opinion
**807 In these appeals, we must determine the standard of review that applies to a determination that public records are exempt from the disclosure provisions of the Freedom of Information Act (act), General Statutes § 1-200 et seq., pursuant to **808 General Statutes § 1-210(b)(19), 1 because there are reasonable grounds to believe that their disclosure may result in a safety risk. The plaintiff, People for the Ethical Treatment of Animals, Inc., submitted a freedom of information request to the defendant University of Connecticut Health Center (Health Center), requesting copies of all correspondence between the Health Center and the National Institutes of *587 Health regarding potential noncompliance with federal animal welfare guidelines. The Health Center produced the requested documents but redacted the names of the individuals who had violated federal protocols and grant identification numbers that would make it possible to identify those individuals. The plaintiff then filed a complaint against the Health Center with the named defendant, the Freedom of Information Commission (commission). While the complaint was pending, the Health Center requested a safety risk determination from the defendant Commissioner of the Department of Administrative Services (department) 2 pursuant to § 1-210(b)(19) and (d). 3 The department **809 determined that there were "reasonable grounds to believe that [the] disclosure of this [redacted] material may result in a safety risk to persons or property" and directed the Health Center to withhold the redacted information. The commission upheld this determination. The plaintiff appealed from the commission's decision to the trial court, which sustained the appeal and ordered the Health Center to disclose the redacted information. The Health Center and the department then brought separate appeals, 4 claiming that the trial court incorrectly determined that the commission had applied the wrong standard of review when it sustained the plaintiff's appeal. We agree with the Health Center and the department that the commission applied the proper standard of review. Accordingly, we reverse the judgment of the trial court. We further conclude that the case should be remanded to that court so that it may decide whether the commission, upon application of the proper standard of review, properly upheld the determination of the department.
The record reveals the following facts that the commission found or that are undisputed. On October 18, 2012, the plaintiff submitted a freedom of information request to the Health Center for all correspondence between the Health Center and the National Institutes of Health concerning potential noncompliance with federal animal welfare guidelines from January 1, 2009, until October 18, 2012. Thereafter, the Health Center provided sixty-one pages of redacted records. Some of the redactions were the names of employees involved in **810 animal research and some were federal grant numbers, which could be used to identify the researchers working on the grants. By letter dated December 6, 2012, the plaintiff complained to the commission that the Health Center had violated the act by redacting the information.
The Health Center subsequently wrote to the department requesting a safety risk determination pursuant to § 1-210(b)(19)
*588 and (d). The Health Center attached to its letter two letters from the Department of Public Works dated August 1, 2008, and June 16, 2010, regarding previous freedom of information requests related to the Health Center's animal research programs. 5 In both letters, the Department of Public Works determined that disclosure of the identities of persons involved in animal research posed a safety risk and, therefore, that the information was exempt from the disclosure provisions of the act. Partly on the basis of these letters, the department determined in the present case that "there [were] reasonable grounds to believe that disclosure of this material [identifying the researchers who had failed to comply with federal animal welfare guidelines] may result in a safety risk to persons or property." 6 Accordingly, the department directed the **811 Health Center "to withhold, or redact accordingly, the information" that would disclose the identity of the animal researchers who had violated federal animal welfare guidelines.
Thereafter, the commission conducted a hearing on the plaintiff's complaint and concluded that the department had "reasonable grounds to believe that disclosure of the names and grant numbers of researchers reported for failing to comply with animal welfare guidelines may create a safety risk...." In reaching this conclusion, the commission relied on the Superior Court decision in
Commissioner of Correction v. Freedom of Information Commission,
Superior Court, judicial district of New Britain, Docket No. CV-07-4015438-S,
The plaintiff appealed from the commission's decision to the trial court. The trial court concluded that, although the standard set forth in
Commissioner of Correction v. Freedom of Information Commission,
supra,
These appeals followed. The Health Center and the department contend that the trial court failed to properly distinguish between the scope of the commission's review of a safety risk assessment made by the department pursuant to § 1-210(b)(19) and (d), which is set forth in
Commissioner of Correction v. Freedom of Information Commission,
supra,
We conclude, therefore, that we may review the claim that, pursuant to § 1-210(b)(19), the commission and the trial court were required to defer to the department's determination that the disclosure of the redacted information would create a safety risk if the department provided reasons that were bona fide and not
*591
pretextual or irrational. See
Commissioner of Correction v. Freedom of Information Commission,
supra,
We begin with the language of § 1-210(b)(19). That statute exempts records from the disclosure requirements of the act "when there are reasonable grounds to believe disclosure may result in a safety risk, including the risk of harm to any person.... Such reasonable grounds shall be determined ... by the [department], after consultation with the chief executive officer of an executive branch state agency...." General Statutes § 1-210(b)(19). Although this court has not previously construed this language in § 1-210(b)(19) for the purpose of determining the scope of the department's discretion in making the safety risk determination and the scope of the commission's review of that determination,
11
it has construed similar language in a related statute. In
Van Norstrand v. Freedom of Information Commission,
Thus, we determined in
Van Norstrand
that, when the act provides that an agency other than the commission must determine whether records fall within a particular exemption in the first instance, the agency has broad discretion to make that determination, and the commission must give deference to that determination.
12
See
**818
Van Norstrand v. Freedom of Information Commission,
supra,
Having concluded that our decision in
Van Norstrand
provides the standard of review for claims involving § 1-210(b)(19), we next address the issue of whether the commission applied the proper standard in the present case. As we have indicated, the commission applied the standard set forth in
Commissioner of Correction,
under which "the [commission's] role is to determine whether the [agency's] reasons were pretextual and not bona fide, or irrational." (Internal quotation marks omitted.)
Commissioner of Correction v. Freedom of Information Commission,
supra, at
The judgment is reversed and the case is remanded to the trial court for further proceedings in accordance with this opinion.
In this opinion the other justices concurred.
General Statutes § 1-210(b) provides in relevant part: "Nothing in the Freedom of Information Act shall be construed to require disclosure of:
* * *
"(19) Records when there are reasonable grounds to believe disclosure may result in a safety risk, including the risk of harm to any person, any government-owned or leased institution or facility or any fixture or appurtenance and equipment attached to, or contained in, such institution or facility, except that such records shall be disclosed to a law enforcement agency upon the request of the law enforcement agency. Such reasonable grounds shall be determined (A)(i) by the Commissioner of Administrative Services, after consultation with the chief executive officer of an executive branch state agency, with respect to records concerning such agency...."
Because we refer to the Freedom of Information Commission as the commission, we refer to the Commissioner of the Department of Administrative Services as the department rather than as the commissioner to avoid confusion.
General Statutes § 1-210(d) provides in relevant part: "Whenever a public agency ... receives a request from any person for disclosure of any records described in subdivision (19) of subsection (b) of this section under the Freedom of Information Act, the public agency shall promptly notify the Commissioner of Administrative Services ... of such request ... before complying with the request.... If the commissioner, after consultation with the chief executive officer of the applicable agency ... believes the requested record is exempt from disclosure pursuant to subdivision (19) of subsection (b) of this section, the commissioner may direct the agency to withhold such record from such person...."
The Health Center and the department filed separate appeals with the Appellate Court, which consolidated the appeals. Thereafter, we transferred the consolidated appeals to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1.
The Department of Public Works was the department's predecessor for purposes of preparing safety risk assessments pursuant to § 1-210(b)(19) and (d). See Public Acts 2011, No. 11-51, § 44.
The department stated as follows: "The Commissioner of [Public Works] wrote in 2008: 'Both federal and state authorities have recognized the history of threat, harassment and intimidation directed against those involved in animal research, particularly those working at the nation's universities.' In her 2010 letter, she detailed some [thirty] incidents between 2004 and 2009 involving violence or threats of violence against person[s] and property by animal rights extremists.
"The record provides extensive evidence that release of the names of researchers puts those researchers at an elevated risk of harm from those opposed to their work. The nature of this opposition is qualitatively different from mere political opposition and has been manifested in violent acts time and again.
"The record and our consultations persuade me to find that there are reasonable grounds to believe that disclosure of this material may result in a safety risk to persons or property.
"You are directed to withhold, or redact accordingly, the information submitted to us."
The commission cited the standard set forth in Director, Dept. of Information Technology in its brief to the trial court, which the department joined.
Although we conclude that the commission applied the proper standard, as we discuss subsequently in this opinion, we express no opinion as to whether the commission properly applied that standard.
We recognize that, as the plaintiff notes, when the trial court asked commission counsel at trial why the commission had not cited
Director, Dept. of Information Technology
in its decision, counsel responded that the commission had not done so because it was "obvious" that the case applied, in the sense that the party claiming an exemption always has to present specific evidence in support of its claim. When the trial court then asked commission counsel if the commission had applied the proper standard, however, counsel responded that the commission had because "the only court decision that ... interprets ... statutes that have virtually identical language [as § 1-210(b)(19) ] is [
Commissioner of Correction v. Freedom of Information Commission,
supra,
The Health Center and the department do not claim that the commission's determination that
Commissioner of Correction
supplied the proper standard of proof is entitled to deference. Cf.
Longley v. State Employees Retirement Commission,
Section 1-210(b)(19) was at issue in
Director, Dept. of Information Technology v. Freedom of Information Commission,
supra,
The plaintiff in the present case does not dispute that, when an agency has invoked § 1-210(b)(19) in response to a request for information, the department is required to make the safety risk determination in the first instance. See
Pictometry International Corp. v. Freedom of Information Commission,
It is reasonable to conclude, however, that the legislature did not intend that § 1-210(b)(19) would apply if the risk to safety is purely speculative or de minimis.
We recognize that, by creating this statutory scheme, the legislature effectively eliminated the department's burden of proving to a finder of fact that § 1-210(b)(19) exempts records from the disclosure provisions of the act. In ordinary usage, the phrase "burden of proof" refers to the burden borne by a party in an adversarial proceeding before an impartial fact-finding tribunal. In contrast, when an agency seeks a safety risk determination from the department pursuant to § 1-210(b)(19) and (d), the department acts both as a party-that is, it produces evidence and arguments to support its position-and as the finder of fact, and the proceeding is adversarial only to the extent that the agency and the department may disagree as to whether the exemption should apply. To be sure, when making a safety risk determination, the department should rely on "more than conclusory language, generalized allegations or mere arguments.... Rather, a sufficiently detailed record must reflect the reasons why an exemption applies to the materials requested." (Internal quotation marks omitted.)
Director, Dept. of Information Technology v. Freedom of Information Commission,
supra,
Thus, we do not disagree with the plaintiff's contention that the legislative history of § 1-210(b)(19) supports the conclusion that the
department
should apply the standard set forth in
Director, Dept. of Information Technology v. Freedom of Information Commission,
supra,
We emphasize, however, that, to avoid confusion and proliferation of standards, the commission and the courts should use the specific language of Van Norstrand when reviewing an agency's determination as to whether an exception to the disclosure requirement of the act applies. The plaintiff contends, however, that the standard set forth in Van Norstrand does not apply in the present case because the statute at issue in Van Norstrand, namely, General Statutes (Rev. to 1989) § 1-19(b)(1), which is now codified at § 1-210(b)(1), required the public agency to engage in a balancing test, whereas § 1-210(b)(19) does not. Our conclusion that Van Norstrand supplies the proper standard is based, however, on the fact that § 1-210(b)(19), like § 1-210(b)(1), provides that an agency other than the commission will make the determination that the exemption applies in the first instance. Thus, the fact that, unlike § 1-210(b)(19), § 1-210(b)(1) requires the agency to engage in a balancing test in making its determination is irrelevant.
Reference
- Full Case Name
- PEOPLE FOR the ETHICAL TREATMENT OF ANIMALS, INC. v. FREEDOM OF INFORMATION COMMISSION Et Al.
- Cited By
- 4 cases
- Status
- Published