NO. CV 08 4018861S

BRADSHAW SMITH

V.

FREEDOM OF INFORMATION
COMMISSION, ET AL.


NO. CV 08 4019303S

BRADSHAW SMITH

v.

FREEDOM OF INFORMATION
COMMISSION, ET AL.
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SUPERIOR COURT

JUDICIAL DISTRICT OF

NEW BRITAIN


SEPTEMBER 22, 2009


SUPERIOR COURT

JUDICIAL DISTRICT OF

NEW BRITAIN


SEPTEMBER 22, 2009

MEMORANDUM OF DECISION

The sole issue raised by the plaintiff, Bradshaw Smith, in these cases is whether an exemption to the freedom of information act (FOIA) to the statutory definition ( 1- 200 (2)) of "meeting" for "personnel search committee for executive level employment candidates" applies in this instance. The definitional section also provides in 1-200 (7): "Personnel search committee" means a body appointed 'by a public agency, whose sole purpose is to recommend to the appointing agency a candidate or candidates for an executive level employment position." These statutes do not define the phrase "executive level employment position." The defendant freedom of information commission (FOIC), in dismissing the plaintiffs complaints, has set forth a definition of the phrase that the plaintiff contests.

The plaintiff in Docket No. CV08-4018861 sought to obtain notices of meetings of the personnel search committee for the position of principal of Windsor High School. On being denied this information, he filed a complaint with the FOIC. On August 13, 2008, the FOIC issued a final decision dismissing the complaint, based on the following:

  1. In Finding 10, the FOIC indicated that the term "executive level" refers to an "employment position requiring administrative or supervisory authority in an organization."

  2. In Finding 11, the FOIC indicated that the principal had "supervisory authority for more than 1,000 students and more than 100 employees. It is found that the principal is responsible for all administrative decisions concerning the school."

  3. In Finding 12, the FOIC concluded that "the position of principal of the Windsor High School is executive level employment."

Therefore, the exemption for personnel search committees applied.

The plaintiff in Docket No. CV08-4019303 sought documents related to a personnel search committee considering replacement of the Windsor director of library services. On denial of this request, the plaintiff filed a complaint with the FOIC. On September 24, 2008, the FOIC issued a final decision dismissing the plaintiff's complaint for the same reasons as it dismissed his prior complaint.

  1. In Finding 16, the FOIC indicated that the Library Director's responsibilities included "preparing and managing a $1,500,000.00 budget; hiring and supervising approximately twenty employees; and developing and implementing policies for the libraries."

  2. In Finding 17, the FOIC concluded that the position of Library Director was an executive level employment position.

Again the FOIC, based on its stated definition and the record, concluded that the personnel search committee exemption applied.

The plaintiff has appealed from these final decisions of the FOIC.1 He contends that the FOIC erroneously defined "executive level employment." In the plaintiff's argument, he contends that the correct definition encompasses only those at the highest levels of supervision. He first relies on legislative history for P.A. 87-568 that gives the examples of the state commissioner of education, a town manager and the commissioner of environmental protection as "executive level employment." He does admit that neither the relevant statutes nor the cited legislative history exclude positions below the highest levels from "executive level employment."

He also argues with regard to his complaint regarding the Windsor principal that the definition in 10-151c applies. This definition would, according to the plaintiff, equate the principal with a "teacher," and therefore not exclude the search committee for a new principal from the FOIA.2

In deciding these cases, the court is bound by the rules derived from the Uniform Administrative Procedure Act (General Statutes 4-166 et seq.). "[R]eview of an agency's factual determination" involves whether the "administrative findings, inferences, conclusions, or decisions are . . . clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record . . . . This limited standard of review dictates that, [w]ith regard to questions of fact, it is neither the function of the trial court or of this court to retry the case or to substitute its judgment for that of the administrative agency. . . . An agency's factual determination must be sustained if it is reasonably supported by substantial evidence in the record taken as a whole." (Citations omitted.) Rocque v. Freedom of Information Commission, 255 Conn. 651, 658-69, 774 A.2d 957 (2001). See also Williams v. Freedom of Information Commission, 108 Conn. App. 471, 476, 948 A.2d 1058 (2008) ("As we frequently have stated, [a]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts.")

"Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Citations omitted.) Id. at 476. "Even as to questions of law, the court's ultimate duty is to decide only whether, in light of the evidence, the agency acted unreasonably, arbitrarily illegally or in abuse of its discretion. 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 reasonably and logically could follow from those facts." Wiese v. Freedom of Information Commission,. 82 Conn. App. 604, 608-09, 847 A.2d 1004 (2004).

The court also notes that Williams v. Freedom of Information Commission, supra, 108 Conn. App. 476, followed the case of Longley v. State Employee Retirement Commission, 284 Conn. 149, 163-64, 931 A.2d 890 (2007): "[T]he traditional deference accorded to an agency's interpretation of a statutory term is unwarranted when the construction of a statute ... has not previously been subjected to judicial scrutiny [or to] ... a governmental agency's time-tested interpretation."

The court notes that as set forth in the FOIC briefs in this matter,3 it has employed the same definition to "executive level employment position" in the context of a personnel search committee. Therefore, the court defers to the FOIC definition as time tested and reasonable. It concludes that under the FOIC definition, the record supports finding that the two positions (principal and library director) are "executive level employment positions." Therefore, the FOIA exemption of 1-200 (2) and (7) were properly relied upon by the FOIC in denying relief to the plaintiff.4

The appeals are dismissed.







Henry S. Cohn, Judge






1
Since the plaintiff's complaints have been dismissed, he is aggrieved for the purposes of 4-183 (a).


2
The plaintiff also argues that the personnel search committee exception does not apply because the superintendent appointed the personnel search committee, not the board of education. The record is silent, however, on who made the appointment; the plaintiff has failed to sustain his burden of proof on this claim.


3
The FOIA briefs at pages 9-10 in each case set forth prior FOIC final decisions where their interpretation of "executive level employment position" has been employed. While the phrase is not specifically defined, the examples given in the FOIC cases clearly involve employees other than at the highest levels.


4
The plaintiff's claim under 10-151c also lacks merit because the legislature has defined "teacher" in this section solely for the purposes of protecting teacher performance records from disclosure. The section thus applies to all certified employees except the superintendent.