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