Town of Greenwich v. Freedom of Info. Comm'n

317 A.3d 816

226 Conn.App. 40

TOWN OF GREENWICH et al.

v.FREEDOM OF INFORMATION COMMISSION et al.

(AC 46003), (AC 46064)

Appellate Court of Connecticut.

Argued February 5, 2024

Officially Released June 11, 2024

Meredith Braxton, self-represented, Greenwich, with whom was Mark Sommaruga, Hartford, for the appellant in Docket No. 46003 (defendant Meredith Braxton).

Valicia Harmon, commission counsel, Newington, with whom, on the brief, were Paula S. Pearlman, associate general counsel, Colleen M. Murphy, general counsel, Hartford, and C. Zack Hyde, commission counsel, for the appellant in Docket No. 46064 (named defendant).

Abby R. Wadler, assistant town attorney, for the appellees in both appeals (plaintiffs).

Bright, C. J., and Suarez and Clark, Js.

BRIGHT, C. J.

₄₂The defendants, the Freedom of Information Commission (commission) and Attorney Meredith Braxton, appeal from the judgment of the trial court sustaining the administrative appeal filed by the plaintiffs, the Chief of Police of the Greenwich Police Department, the Greenwich Police Department (department), and the town of Greenwich (town), from the final decision of the commission. The commission found that the plaintiffs violated the Freedom of Information Act (act), General Statutes § 1-200 et seq., by denying Braxton’s request for records of any changes made to an investigative file and an associated application for an ₄₃arrest warrant because the plaintiffs failed to meet their burden of proving that the requested records are exempt from disclosure pursuant to Gener- al Statutes § 1-210 (b) (1) and (20). The trial court concluded that the records are exempt as preliminary drafts under § 1-210 (b) (1) and sustained the plaintiffs’ appeal on that basis. On appeal, the defendants claim that the court improperly substituted its judgment for that of the commission by concluding that the requested records are preliminary drafts that are exempt from disclosure under § 1-210 (b) (1). We agree with the defendants. We also are not persuaded by the plaintiffs’ proffered alternative ground for affirmance, namely, that the requested records are exempt from disclosure under § 1-210 (b) (20). Accordingly, we reverse the judgment of the trial court.

The following facts, either as found by the commission’s hearing officer or undisputed in the record, and procedural history are relevant to the parties’ claims. "[B]y letter dated May 22, 2020, [Braxton], on behalf of her client Brian Scanlan, requested a copy of: ‘[d]ocuments and/or database information reflecting all changes made (i.e., text inserted, changed or deleted from the file) to the investigation file of CFS No. 1600027332 (the investigation file for the complaint by Doe against Roe) and of all changes made to the application for an arrest warrant in that case.’ … [W]ith [that letter], [Braxton] provided the [plaintiffs] with a set of database commands and suggested [that] the [plaintiffs] use such commands to retrieve the requested records. [Braxton] also informed the [plaintiffs] that she would pay the cost of retrieval by a qualified technician, if necessary. …

"[B]y letter dated June 16, 2020, the [plaintiffs] informed [Braxton] that they did not ‘have any information reflecting any changes that could have been made.’ In addition, the [plaintiffs] informed [Braxton] that ₄₄‘NexGen [Public Safety Solutions, the software vendor responsible for developing and maintaining the department’s databases (NexGen)] has informed the [department] that they cannot produce any prior versions.’ … [B]y letter dated June 19, 2020, [Braxton] clarified for the [plaintiffs] that she was not seeking ‘different versions’ of the investigative file and the arrest warrant applications; but rather, was seeking ‘database information that reflects changes made to those files in the NextGen system.’ "

By letter dated June 23, 2020, the town again stated "that NexGen has informed [the department] that it cannot produce previous versions of reports once they are finalized. Any requested changes, should they exist, would essentially identify a previous version. In addition, [§] 1-210 (b) (1) of the [act] exempts preliminary drafts from mandatory disclosure. Your request is essentially seeking preliminary drafts."

On July 7, 2020, Braxton filed an appeal with the commission, stating, in relevant part: "I represent the plaintiff in the case of Doe v. Greenwich, currently pending in [the] United States District Court for the District of Connecticut. This litigation involves a sexual assault reported to the [department] by the plaintiff. The sexual assault was investigated by the [department], but ultimately no arrest was made and no prosecution of the perpetrator was commenced.

* * *

"On May 22, [2020], I requested documents and/or database information reflecting all changes made to the NextGen file by the [department] in its investigation of the sexual assault reported by the plaintiff, and all changes made to any application for an arrest warrant in that investigation. At the same time, I supplied the method to retrieve such changes from the NexGen database in the form of database commands. … ₄₅* * *

"With respect to the NexGen request, [the town] reiterated its belief that it is unable to comply with my request, despite the fact that I provided them with the database code search parameters directly from NexGen itself. [The town] now also argues that my request is for ‘preliminary drafts’ exempted from mandatory disclosure under … § 1-210 (b) (1). My request was not for any preliminary draft, rather for the database information that reflects changes made to those files in the NexGen system.

"Moreover, even if my request had been for a preliminary draft, [the town] has not demonstrated that the public interest in withholding that information clearly outweighs the public interest in its disclosure. … [The town] has remained silent on this issue, seemingly defaulting to the idea that all preliminary drafts are exempt from disclosure, without regard to showing that the public interest favors either withholding or disclosure." (Citation omitted.)

"At the contested case hearing held on August 2, 2021, the [plaintiffs] claimed that they do not maintain any ‘prior versions’ of the investigative report or arrest warrant application, or any other record that would show any edits made to such records. [Braxton] claimed that such records are, in fact, maintained in the [department’s] database, and at the November 4, 2021 contested case hearing, offered the testimony and affidavit of Lee Wezenski, Chief Development Officer for NexGen … in support of her claim. …

"[T]he electronic records management system and software used by the [plaintiffs] is provided by NexGen. … [P]olice incident reports and arrest warrant applications, among other records, are created, revised and maintained in such database. … [R]eports and other documents may be edited or revised in the database ₄₆up until the time they are reviewed and approved by the commanding officer. … NexGen has access to all of the … department’s computer servers and all of the information located on such servers. …

"Wezenski wrote the database commands, referenced … above, and provided such commands to … Scanlan, in response to a subpoena. … [T]hese database commands are the same commands that [Braxton] provided to the department with the records request at issue herein …. [E]xecution of the database commands would produce a ‘rich text format’ (RTF) file reflecting additions or deletions to the text of a record maintained in the [department’s] database, and the time and date such changes were made. … [I]f the [plaintiffs] so requested … Wezenski could, and would, execute the database commands for the [plaintiffs] so that such file could be produced. …

"[P]rior to receiving the database commands from … Scanlan, the [plaintiffs] had no knowledge of such commands, were unaware that such commands could be used to produce the file … and did not have a staff member trained to execute such commands. … [A]t least by August 2, 2021 (the date of the initial hearing in this matter), the [plaintiffs] had information, in the form of … Wezenski’s affidavit, dated June 9, 2021, that a file showing additions and deletions to the report and arrest warrant application, to the extent those records had been edited, would be maintained in the database and accessible by running the database commands ….

"[D]espite having such information, the [plaintiffs] had not, as of the date of the initial or continued hearing in this matter, requested that NexGen execute the database commands in order to determine whether … there is a record or records in the database that would be responsive to [Braxton’s] request ….

₄₇"Rather, without having made an attempt to retrieve and review any potentially responsive record or records, at the hearing in this matter, and in their post-hearing brief, the [plaintiffs] claimed that the requested records are exempt from disclosure pursuant to [§] 1-210 (b) (1) … and (20) ….

"With respect to § 1-210 (b) (1) … such provision states that disclosure is not required of ‘preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.’ … [T]he [plaintiffs] did not review any potentially responsive records prior to the hearing in this matter, and it is therefore further found that the testimony offered at the hearing was not specific to any particular record. Although the assistant police chief testified that it would violate an unspecified policy of the department to execute the database commands … the assistant police chief did not testify that he had determined that the public interest in withholding the record clearly outweighed the public interest in disclosure. Accordingly, [the hearing officer] found that the [plaintiffs] failed to prove that the requested records, if they exist, are...