Town of Avon v. Sastre

312 A.3d 40

224 Conn.App. 155

TOWN OF AVON et al.

v.Joseph SASTRE et al.

(AC 45885)

Appellate Court of Connecticut.

Argued October 19, 2023

Officially Released March 5, 2024

Michael C. Harrington, Hartford, with whom, on the brief, was Proloy K. Das, for the appellants (plaintiffs).

Jennifer F. Miller, commission counsel, with whom, on the brief, were Danielle L. McGee, commission counsel, and Colleen M. Murphy, general counsel, for the appellee (defendant Freedom of Information Commission).

Elana Bildner, with whom, on the brief, were Sapana Anand and Dan Barrett, for the appellee (named defendant).

Elgo, Cradle and Seeley, Js.

SEELEY, J.

₁₅₉The plaintiffs, the town of Avon (town) and the town manager, Brandon Robertson, appeal from the judgment of the Superior Court dismissing their administrative appeal from the final decision of the defendant Freedom of Information Commission (commission) regarding a complaint filed by the defendant Joseph Sastre. In its final decision, the commission found that the plaintiffs had violated the Freedom of Information Act (act), General Statutes § 1-200 et seq., when they denied Sastre’s request for a document (log) related to the resignation in 2019 of the town’s police chief, Mark Rinaldo (Chief Rinaldo), and ordered that the town disclose the log pursuant to the act. On appeal, the plaintiffs claim that the court improperly dismissed their appeal from the commission’s decision ordering disclosure of the log because (1) the log is not a public record under § 1-200 (5)¹ and, thus, is not subject to disclosure under the act, and (2) even if the log is a public record, it is exempt from disclosure under General Statutes § 1-210 (b) (10)² pursuant to the attorney-client privilege. We disagree with the plaintiffs and affirm the judgment of the Superior Court.

₁₆₀The following facts, as found by the commission and which are not disputed by the parties, and procedural history are relevant to our resolution of this appeal. In November, 2019, a managerial level "town employee met with the … town manager to discuss [work-related] incidents and events involving Chief Rinaldo… [T]he employee was seeking the … town manager’s guidance on how to deal with [Chief Rinaldo] regarding [certain] incidents [involving Chief Rinaldo] that the employee had observed." Following that meeting, the town manager contacted the attorney for the town (town attorney) and described the incidents mentioned by the employee. During that conversation, the town attorney asked whether the employee had any documentation of those incidents. The town manager then contacted the employ- ee, at which time he "learned that the employee had created a log³ detailing the underlying incidents. … [T]he log details incidents occurring over the course of one year, four months and five days (June 20, 2018, to October 25, 2019)" (Footnote added.) As a result of that conversation, "the employee provided the log to the … town manager, who made a copy of the log, provided the copy to the town [attorney], and returned the log to the employee." As documented in a memorandum dated November 11, 2019, Chief Rinaldo was placed on administrative leave, pending an investigation. Sometime thereafter, the town ₁₆₁and Chief Rinaldo executed a severance agreement, and Chief Rinaldo retired from his position as chief of police.

On February 10, 2020, Sastre submitted a request that the town "provide him with any and all records relating to the ‘accusations’ concerning … [Chief] Rinaldo." In response to this request, the plaintiffs provided Sastre with a copy of the November 11, 2019 memorandum and the severance agreement; however, neither document included the reason behind the decision to place Chief Rinaldo on administrative leave. The plaintiffs did not provide Sastre with a copy of the log that had been given by the town employee to the town manager documenting that employee’s observations of Chief Rinaldo’s conduct.

On March 13, 2020, Sastre filed an appeal with the commission, alleging that the plaintiffs violated the act by failing to provide him with the aforementioned log. On November 19, 2020, a hearing concerning Sastre’s appeal was conducted before a hearing officer for the commission, at which Sastre and the plaintiffs "appeared, stipulated to certain facts, and presented testimony, exhibits and argument on the complaint." During the hearing, the plaintiffs’ sole argument in opposition to Sastre’s request was that the log was exempt from disclosure due to the attorney-client privilege. On September 22, 2021, the hearing officer issued her proposed final decision, finding that the log was not exempt from disclosure under the attorney-client privilege. On October 15, 2021, the town responded to the proposed decision. In its response, the town, in addition to maintaining its argument that the log is protected from disclosure under the attorney-client privilege, also argued that the log is not a public record because it consists of the personal notes of an individual.

₁₆₂On October 27, 2021, the commission held a meeting at which it reviewed the hearing officer’s proposed decision. During the meeting, the town attorney reiterated the argument that the log was exempt from disclosure due to the attorney-client privilege and also argued that the log did not qualify as a public record as defined by the act. On November 17, 2021, the commission issued its final decision on the matter. The commission first found that the log is a public record within the meaning of General Statutes §§ 1-200 (5), 1-210 (a) and 1-212 (a). The commission next addressed the plaintiffs’ claim that the log is exempt from disclosure under § 1-210 (b) (10), which exempts from disclosure records of "communications privileged by the attorney-client relationship …" The commission concluded that the log is not a document protected by the attorney-client privilege and, thus, it is not exempt from disclosure under § 1-210 (b) (10). Therefore, the commission ordered that it be disclosed to Sastre.

After the commission issued its decision, the plaintiffs filed an administrative appeal in the Superior Court pursuant to General Statutes § 4-183. Sastre and the commission were both named as defendants in the appeal. A hearing was held on September 19, 2022. On September 20, 2022, the Superior Court issued a memorandum of decision in which it agreed with the decision of the commission that the log is a public record subject to disclosure under the act and, therefore, dismissed the plaintiffs’ administrative appeal. This appeal followed. Additional facts and procedural history will be set forth as necessary.

[1–3] As a preliminary matter, we must first set forth the standard of review for this administrative appeal. "Our resolution of [this appeal] is guided by the limited scope of judicial review afforded by the Uniform Administrative Procedure Act [UAPA]; General Statutes § 4-166 et seq.; to the determinations made by an administrative agency." ₁₆₃(Internal quotation marks omitted.) Rocque v. Freedom of Information Commission, 255 Conn. 651, 658, 774 A.2d 957 (2001). "Under the UAPA, it is [not] the function .. of [an appellate] court to retry the case or to substitute its judgment for that of the administrative agency.. Even for conclusions of law, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. … [Thus] [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 could reasonably and logically follow from such facts. … Cases that present pure questions of law, however, invoke a broader standard of review than is involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Commissioner of Emergency Services & Public Protection v. Freedom of Information Commission, 330 Conn. 372, 379, 194 A.3d 759 (2018).

[4–7] "The ‘substantial evidence’ rule governs judicial review of administrative fact-finding under the UAPA." Dolgner v. Alander, 237 Conn. 272, 281, 676 A.2d 865 (1996). "According to our well established standards, [r]eview 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 this 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. … An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred." ₁₆₄(Citations omitted; internal quotation marks omitted.) Stratford Police Dept v. Board of Firearms Permit Examiners, 343 Conn. 62, 81, 272 A.3d 639 (2022).

I

[8, 9] The plaintiffs first claim that the court improperly dismissed their administrative appeal from the commission’s decision ordering disclosure of the log because the log is not a public record under § 1-200 (5).⁴ In support of this claim, the plaintiffs argue that the log does not meet the statutory definition of a public record because it was not "prepared, owned, used, received or retained by a public agency .. " General Statutes § 1-200 (5).⁵ We are not persuaded.

[10, 11] ₁₆₅The following legal principles are relevant to our evaluation of this claim. Our Supreme Court has described the act as "our right-to-know law, providing for disclosure of public information …. [T]he [act] expresses a strong legislative policy in favor of the open conduct of government and free public access to government records. … At the time of its unanimous passage by...