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FREEDOM OF INFORMATION COMMISSION |
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In
the Matter of a Request |
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Advisory Opinion #71 |
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Town of Glastonbury, Applicant |
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On June 8, 1988, the Commission considered and agreed to respond to a request for an advisory opinion filed by the town of Glastonbury.
In its request the applicant states that one of its residents, C.J. Mozzochi, has in the last decade made hundreds of requests for tens of thousands of pages of records from the applicant's public agencies. Often these requests have contained vulgar language, obscene drawings, and accusations against town personnel. Other requests were made in ways that made it more difficult to fulfill.
The applicant claims that, due to their frequency, magnitude and nature, Mr. Mozzochi's requests harass the applicant and its personnel and abuse the rights granted by the Freedom of Information (“FOI”) Act. The applicant essentially seeks relief from the burden of these requests.
In earlier proceedings, designated as Advisory Opinion #68, the applicant raised issues similar to that now before the Commission. Those proceedings ended when the parties reached an agreement on how the applicant would handle records requests by Mr. Mozzochi. The Commission, therefore, did not issue a formal opinion in the matter.
On October 27, 1988, the Commission held a hearing on this second advisory opinion request by the applicant and received both testimonial and documentary evidence. The participants have also filed numerous motions, requests, briefs, memoranda and other written arguments in the course of these proceedings. Other materials filed with the Commission and relevant to this request also were made a part of the record in this matter. Such materials include the record of the proceedings in Advisory Opinion #68, a number of complaints pending before the Commission at the time these proceedings began and various accusations and replies from Mr. Mozzochi and the applicant.
Revised Advisory Opinion #71 Page 2
Because the Commission
believed that extraordinary prospective relief was appropriate, in its earlier version
of this
advisory opinion the Commission declared:
1.
Mr. Mozzochi shall be barred from filing complaints, appeals or requests
for investigation with the Commission, alleging violations of the FOI Act based
on the applicant's failure to comply with his records requests, without first
seeking leave of the Commission to file such complaints, appeals or requests.
The Commission shall grant or deny such leave summarily after reviewing supporting and
opposing
affidavits submitted by the prospective parties.
2.
. . . this ruling shall be construed "to ensure that any proper
claim will receive appropriate consideration" by the Commission. If Mr.
Mozzochi believes that Commission action or inaction in any particular case
constitutes the exhaustion of his administrative remedies, he, of course, is
free to pursue available judicial relief.
Mr.
Mozzochi appealed the earlier version of this advisory opinion to the Superior
Court. By agreement of the parties, the matter was remanded to the Commission
on December 19, 1990 to consider the imposition of sanctions under Conn. Gen.
Stat. §1-21i(b) or the seeking of injunctive relief under Conn. Gen. Stat.
§52-568(b). The court directed that sanctions under §§1-21i(b) and 52-568(b),
if any, be "restricted to the appellant's [Mozzochi's] five cases
presently under appeal, those cases having arisen since May, 1988. . . ."
On March 2, 1992 the Commission
held another proceeding in this matter, this time before Commissioner Deane C.
Avery as Hearing Officer, for the purpose of hearing oral argument. The parties have again
submitted numerous additional written briefs, motions, responses and letters which have been made part
of the
record.
Also,
since the March 2, 1992 hearing, Mr. Mozzochi, in his own name or in the name
of others, has filed with the Commission numerous additional complaints against the Town of
Glastonbury, its officials and agencies. He has also mailed or delivered to the Commission, its
members and staff, numerous papers including copies of lawsuits, appeals, specified and
unspecified threats and grievances. Some of these are directed against the applicant, its past and
current officials, agencies and counsel; and some are directed against the Commission, its
past and current members and staff. The Commission takes administrative notice
of these materials which have been made part of the record herein.
Revised Advisory Opinion #71 Page 3
At all times material, Conn. Gen. Stat. §1-21i(b) provided in relevant part:
If the
[FOI] commission finds that a person has taken an appeal to the commission
under this subsection frivolously, without reasonable grounds and solely for the purpose of harassing
the agency against which the appeal has been taken, it may, in its discretion, impose a civil penalty
against such person of not less than twenty dollars nor more than one thousand dollars, after such person has
been given an opportunity to be heard at a hearing conducted in accordance with
sections 4-176e to 4-184, inclusive.
Likewise, at all times
material, Conn. Gen. Stat. §52-568(b) read:
A public
agency, as defined in subsection (a) of section 1-18a, may bring an action to the superior court against any person
who, within a twenty-four-month period beginning on or after July 7, 1987, commenced and
prosecuted at least two appeals before the freedom of information commission
under section
1-21i and who was found by the commission in at least two such cases to have brought the appeals
(1) frivolously, (2)
without reasonable grounds and (3) principally for the purpose of harassing the
agency against which the appeals had been taken. The action permitted under this
subsection shall be limited to an injunction prohibiting such person from bringing any
further appeal to the commission which is frivolous, without reasonable grounds
and principally for the purpose of harassing the agency against which the
appeal is taken. If, after such an injunction is ordered, the person subject to the injunction
brings a further appeal to the
freedom of information commission and such commission determines that such appeal is
frivolous, without reasonable grounds and principally for the purpose of
harassing the agency against which the appeal is taken, such person shall be conclusively deemed to have violated
the injunction and such agency may seek further equitable action as the court may order.
The applicant and Mr. Mozzochi disagree as to which
matters
constitute the five cases to which the court limited the Commission's
consideration on remand. The applicant believes the five cases are described on
pages 2-3 of its request for advisory opinion. In particular, it believes that
Commission contested
case docket #FIC 88-79 and #FIC 88-176 are two cases
Revised Advisory Opinion #71 Page 4
"commenced
and prosecuted" within a twenty-four month period which the Commission can
find were frivolous, without reasonable grounds and brought principally for the purpose of
harassment within the meaning of §52-568(b). Without conceding any of the
findings necessary to invoke §52-568(b), Mr. Mozzochi believes that the remand
must be limited to consideration of the following Commission contested cases:
#FIC 88-176; #FIC 88-194; #FIC 88-206; #FIC 88-235; and #FIC 88-289.
It is unclear from the court's remand directive to which
five specific cases it is referring. But because of Mr. Mozzochi's actions
subsequent to the remand, this question, and the imposition of sanctions pursuant to a
declaratory ruling, no longer have significance and need not be addressed. For in at least four
contested cases, docket #FIC 92-168, #FIC 92-204, #FIC 92-216 and #FIC 92-276,
the Commission has made the predicate findings under both Conn. Gen. Stat.
§1-21i(b) and §52-568(b) and has imposed civil penalties under §1-21i(b).
Nevertheless, it is the Commission's opinion that the
applicant faces a situation that constitutes such a perverse twisting of the
intent and purpose of the FOI Act, and that is so intolerable in the extreme,
as to require remedy. Thus, the Commission will set
forth findings, conclusions and law which it intends to apply in subsequent contested cases
involving the same or similar facts. In this way, the parties can be guided
accordingly in their future conduct.
In In Re Martin-Trigona, 573 F. Supp. 1245 (D. Conn. 1983), affirmed 737 F.2d
1254 (2nd. Cir. 1984), a U.S. District Court was confronted with a similar
situation. In that case, the court found:
the very purpose of Martin-Trigona's litigation is nothing other than the
multiplication of litigation and the harassment of his imagined enemies . . . by the use of legal process.
In Re
Martin Tragona, supra at 573 F. Supp. at 1253. As a result, the court granted
an injunction essentially barring Mr. Martin-Trigona from bringing appeals before it, unless he
first
obtained leave to do so from the court. Id. at 1255.
Based on the entire
record in this matter, the Commission finds that many of Mr. Mozzochi's records
requests and FOI complaints were constructed in such a way as to harass his
self-made or perceived enemies in Glastonbury and to cause the multiplication
of administrative claims or litigation. Indeed, he has created a history of abusing the processes
and personnel
of a municipal government that in degree is unique in the Commission's nearly 18
years of experience in enforcing the FOI
Revised Advisory Opinion #71 Page 5
Act. This, quite emphatically, is not a situation
in which an eccentric citizen has made records requests that a town
finds burdensome to fulfill. The Commission finds it is part of a deliberately contrived
plan by Mr. Mozzochi to make the work of certain Glastonbury officials so difficult or
unpleasant that they will either resign or no longer oppose his interests.
Mr.
Mozzochi maintains that he is entitled by law to copies of all nonexempt public
records, regardless of his motive or how his requests are presented. He claims that he is
an advanced mathematician and that his method of requesting information is for
statistical sampling of the records in question. He asserts that he is merely a
self-sacrificing citizen acting in the public interest, seeking information
about the workings of his town government. He therefore argues that any appeal
to the Commission
from the denial of any of his records requests cannot be deemed as frivolous,
without reasonable grounds or for the purpose of harassment.
In the context of this Advisory Opinion, the Commission reiterates and
incorporates herein certain findings made in its contested cases docket #FIC 92-168, #FIC 92-204, #FIC
92-216 and
#FIC 92-276. Specifically, the Commission finds that Mr. Mozzochi has long
engaged in an outrageous campaign of verbal and pictorial harassment of the
applicant, its officials and agencies. He has himself or through his agents made
hundreds of
requests for documents from the respondent, its officials and agencies, many of
such requests in turn involving hundreds of pages of documents.
In many of these cases, Mr. Mozzochi and his agents have
requested only isolated portions of particular records over a long period of
time, only to later request different isolated portions of the same records
over the same period of time. In this regard, the Commission finds Mr.
Mozzochi's testimony in support of his claim of mathematically sound statistical
method not
to be credible. Mr. Mozzochi has also presented records requests which have been
folded, stapled and interspersed with profane and insulting diatribes so as to make more
difficult what
is ordinarily the simple task of receiving and processing records requests.
The Commission finds
specifically that Mr. Mozzochi is relentlessly and unreasonably attacking his
local government through irrational distortions of public records and contumely against public
officials. He is simply at war with the applicant, its past and current
officials and agencies, using unduly burdensome requests for documents and
appeals from denials of any such requests solely to harass the applicant.
Revised Advisory Opinion #71 Page 6
In addition, the record clearly supports the conclusion
that Mr.
Mozzochi's constant appeals to the Commission of record denials which he has
himself engineered are not the actions of a man acting upon reasonable grounds. Mr. Mozzochi
persists in presenting many of his requests in an intentionally burdensome manner, fully aware that
reasonable requests for similar records will be met by the applicant. It is therefore
concluded that Mr. Mozzochi's practice of bringing appeals from denials of
requests which he has deliberately framed in order that they will be denied is entirely
frivolous.
In light of the expansive record and the foregoing
findings and
conclusions, it is the Commission's opinion that Mr. Mozzochi has acted
frivolously, without reasonable grounds and solely for the purpose of
harassment. Indeed, it is the Commission's opinion that Mr. Mozzochi's entire
course of conduct,
as demonstrated by the record before the Commission, is a brutish attempt to
intimidate government officials. In this regard the Commission is attaching to
this opinion, and incorporating as if fully set forth herein, a copy of a
letter Mr. Mozzochi addressed to the Board of Selectmen of Merrimack, New
Hampshire, dated April 22, 1993, and a copy of which Mr. Mozzochi mailed to the
Commission. It is also the Commission's opinion that Mr. Mozzochi's attempt to
portray himself as a victim of a governmental conspiracy to deprive him of his
free speech and political rights is nothing more than a cynical, thinly-veiled
ploy to disguise his frivolous, unreasonable and harassing conduct. For there
is no credible evidence that he has been denied any free speech or political
rights.
Earlier in this opinion, the Commission stated that the imposition of sanctions
under Conn. Gen. Stat. §1-21i(b) and the predicate findings with respect to two cases
within a twenty-four
month period under Conn. Gen. Stat. §52-568(b) need not be addressed herein
as the result of certain events. For similar reasons, the Commission's guidance
concerning the law it intends to apply in subsequent contested cases involving the same or
similar facts has been dictated by external events.
At the Commission's request, based on the suggestion of
the judge in his memorandum
of decision remanding this matter, the 1993 General Assembly has passed HB 6993, "An
Act Concerning Appeals to the Freedom of Information Commission, Civil Penalties, Frivolous
Appeals, and Abuse of the Appeal Process." This bill, effective July 1, 1993, repeals Conn.
Gen. Stat. §52-568(b). It also substantially and materially amends Conn. Gen.
Stat. §1-21(i)(b).
Most significantly, Section 1 of the bill provides in relevant part:
Revised Advisory Opinion #71 Page 7
If the executive director
of the [FOI] commission has reason to believe an appeal . . . [to the Commission] (A) presents a claim
beyond the commission's jurisdiction; (B)
would perpetrate an injustice; or (C) would constitute an abuse of the commission's
administrative process, the executive director shall not schedule the appeal
for hearing without first seeking and obtaining leave of the commission. The commission shall
provide due notice to the parties and review affidavits and written argument that the
parties may
submit and grant or deny such leave summarily at its next regular meeting. The
commission shall grant such leave unless it finds that the appeal: (i) does not present a claim
within the commission's jurisdiction; (ii) would perpetrate an injustice; or (iii) would constitute
an abuse of the commission's administrative process.
Section 1 of the bill also provides that the Commission
must consider the nature of
any injustice or abuse of administrative process in making any of the above-quoted findings
or determinations. In this regard, the Commission is obliged to consider, among
other things, the nature, content or subject matter of the request, appeal, any prior or
contemporaneous requests or appeals, and any other communication to the agency
or official thereof, made by the person making the request or taking the
appeal. Section 2 of the bill sets forth a new process by which a public agency
can seek relief in court against a person the Commission denied leave to have his
or her appeal
heard because the Commission determined and found that the appeal or underlying
request would perpetrate an injustice or would constitute an abuse of the Commission's
administrative process.
The Commission advises
the parties that on and after July 1, 1993, it intends to apply the provisions of HB
6993, in accordance
with its terms, and in accordance with all applicable legal standards, to
contested cases filed after that date involving the parties, including Mr.
Mozzochi's agents or surrogates. In such appeals the Commission shall take administrative notice of
the record of these and other relevant proceedings before the Commission, instituted by
Mr. Mozzochi, in his name or by his agents or surrogates, against the
applicant, its officials and agencies. If the Commission finds that any such
future appeal was instituted as part of, or in furtherance of, Mr. Mozzochi's
course of conduct, as found and described herein, the Commission shall not
hesitate to employ all of its powers under §1-21i(b) or §52-568(b), as it deems
appropriate and just.
Revised Advisory Opinion #71 Page 8
By
Order of the Freedom of
Information
Commission
________________________
Kenneth
E. Grube, Chairman
of
the Freedom of Information
Commission
Date: June 23, 1993__
Ordered:_________________
Debra L. Rembowski
Acting Clerk of the Commission