Opinion
HHBCV155017072S
05-08-2017
Michael Aronow, M.D. v. State of Connecticut, Freedom of Information Commission
UNPUBLISHED OPINION
RULINGS RE MOTION TO DISMISS (#123) AND REQUEST TO AMEND COMPLAINT (#131)
Sheila A. Huddleston, Judge.
The plaintiff, Michael Aronow, M.D., brought this administrative appeal pursuant to General Statutes § 4-183 to challenge certain orders and recommendations made in the final decision of the defendant Freedom of Information Commission (commission) in Aronow v. Freedom of Information Officer, State of Connecticut, University of Connecticut Health Center et al., Docket #FIC-2015-127 (FIC 2015-127). The University of Connecticut Health Center (health center) and its freedom of information officer, Dr. Scott Wetstone, were the respondents in FIC 2015-127. The respondents are not parties to this appeal.
In his various pleadings, the plaintiff sometimes refers to the proceeding before the commission as #FIC 2015-217. The court deems this to be a typographical error because the record is clear that the commission's docket number was #FIC 2015-127.
The commission moved to dismiss the plaintiff's appeal, contending that he is not aggrieved by the commission's decision in his favor in FIC 2015-127. It also moved to strike certain claims for relief if any portion of the appeal survived the motion to dismiss. The plaintiff objected to the commission's motion and further filed a request to amend his administrative appeal, to which the commission objected. The court heard argument on the commission's motion to dismiss and the plaintiff's motion to amend on January 9, 2017.
For the reasons stated in this decision, the court enters the following orders:
The court grants the commission's motion to dismiss the plaintiff's claims that the commission erred by (1) failing to impose a civil penalty on the respondents, and (2) suggesting that the plaintiff refrain from filing additional requests for records while the respondents are working to comply with the commission's order in this case.
The court denies the commission's motion to dismiss the plaintiff's claims that the commission erred by (1) allowing the respondents at least nine months to comply with the commission's order, and (2) improperly restricting the scope of the plaintiff's request.
The court questions whether the plaintiff has exhausted his administrative remedies with respect to his claim that the commission erred in failing to establish a procedure for reviewing documents claimed to be exempt from disclosure. The court therefore orders the parties to address, in their briefs on the merits of the appeal, whether the court lacks jurisdiction to consider that claim under the exhaustion doctrine.
The court declines to review the inadequately briefed motion to strike the claim that the commission erred in dismissing the plaintiff's complaint in Docket #FIC 2014-156.
The court denies the plaintiff's request to amend the appeal because the proposed amended complaint would require the court to consider evidence that was not contained in the record before the commission and cannot properly be received by the court pursuant to General Statutes § 4-183(l).
Finally, in the exercise of its supervisory authority, the court orders the commission's counsel to serve a copy of this decision upon the respondents' counsel to ensure that the respondents are aware that the commission's order is not automatically stayed during the pendency of the appeal.
RELEVANT FACTS ALLEGED IN THE COMPLAINT AND RELIEF SOUGHT
The plaintiff is a medical doctor who was formerly affiliated with the health center. On August 19, 2013, he submitted a request under the Freedom of Information Act, General Statutes § 1-200 et seq. (FOIA or act), to Wetstone. Over several ensuing months, the plaintiff and Wetstone exchanged e-mails concerning the scope of the request. When the plaintiff had not received the responsive documents by March 17, 2014, he filed a complaint with the commission, which was docketed as Docket #FIC 2014-156 (FIC 2014-156). On February 4, 2015, the commission adopted a final decision dismissing FIC 2014-156 for lack of jurisdiction on the ground that the plaintiff's complaint was not timely filed under General Statutes § 1-206.
On the same day, February 4, 2015, the plaintiff resubmitted to Wetstone the freedom of information request that had been at issue in FIC 2014-156. On March 17, 2015, the plaintiff filed an appeal from the commission's decision in FIC 2014-156 with the Superior Court. That appeal was docketed as Aronow v. Freedom of Information Commission, judicial district of New Britain, Docket No. HHB-CV-15-5016347-S (Aronow I ). The commission subsequently moved to dismiss Aronow I on the ground of mootness because a commission hearing on FIC 2015-127, concerning an identical FOIA request, was pending. The court granted the commission's motion and dismissed the appeal. Aronow I, supra, Order #103.01 (June 18, 2015, Schuman, J.). The plaintiff did not appeal that dismissal to the Appellate Court.
FIC 2015-127 proceeded to a hearing before a hearing officer. On October 1, 2015, the hearing officer issued a proposed final decision. On October 8, 2015, the respondents provided the plaintiff with some of the documents at issue and with a preliminary privilege log claiming exemptions as to certain other documents.
On October 28, 2015, the commission adopted the proposed final decision as its final decision in FIC 2015-127. It found that the respondents had violated the act by failing to comply promptly with the plaintiff's request. It ordered as follows:
1. Forthwith, the respondents shall promptly comply with the complainant's request, narrowed as described in paragraphs 10 and 11 of the findings of fact, above. Specifically, the respondents shall make a good faith effort to provide the complainant with responsive records on a rolling basis, and shall work diligently to comply fully within nine months of the final decision in this matter. The Commission suggests that the complainant refrain from further requests for records until this request is satisfied.
2. Henceforth, the respondents shall strictly comply with § § 1-210(a) and 1-212(a), G.S.
The plaintiff thereafter filed this appeal. In paragraphs 45 through 54 of the appeal, the plaintiff alleges that the commission made various errors in its final decision. Although it is difficult to discern the exact parameters of the plaintiff's claims of error, the court concludes that they may fairly be characterized as follows:
(1) The commission improperly declined to impose any civil penalties on the respondents, despite the length of delay and the fact that the commission had previously found the respondents to have violated the promptness requirement of the act in relation to other requests by the plaintiff. Appeal, ¶ ¶ 49, 50, 52.
(2) The commission improperly suggested that the plaintiff refrain from making additional records requests until the respondents had completed their response to the request at issue in FIC 2015-127. Appeal, ¶ 47.
(3) The commission improperly allowed the respondents at least nine additional months to comply with the plaintiff's request. Appeal, ¶ ¶ 47, 50.
(4) The commission improperly found that the plaintiff had agreed to narrow the scope of his request as described in paragraphs 10 and 11 of the final decision. The plaintiff agreed that he narrowed the scope as described in paragraph 10, but denied that he had agreed to the limitations described in paragraph 11 of the final decision. Appeal, ¶ 45.
(5) The commission erred when it did not provide any mechanism for in camera review of documents for which the respondent claimed exemptions on October 8, 2015, after the proposed final decision had been released. Appeal, ¶ 48.
(6) The commission erred when it found that it no longer had jurisdiction in FIC 2014-156. Appeal, ¶ 53.
In paragraph 55 of his appeal, the plaintiff asks the court to sustain the appeal and afford the following forms of relief:
(1) Find that the commission erred in dismissing FIC 2014-156 and deem August 19, 2013, as the date of the request at issue in this appeal.
(2) Order the maximum civil penalties allowed by General Statutes § 1-206(b)(2).
(3) Order the respondents to provide the remaining responsive documents within fifty-five days.
(4) Order that any narrowing of the request be agreed to by the plaintiff.
(5) Remove any suggestion that the plaintiff refrain from using the act.
(6) Provide a prompt mechanism for verifying that any documents claimed to be exempt from disclosure actually are exempt under the act.
(7) Award the plaintiff his costs.
(8) Protect future complainants before the commission from having their complaints inappropriately dismissed on the basis of incorrect jurisdiction arguments.
The plaintiff's request to amend his appeal, filed on November 29, 2016, seeks to add allegations related to an allegedly improper stay of the commission's decision. It also seeks to add allegations about the commission's failure to provide a mechanism for an in camera review of documents identified in the preliminary privilege log provided to the plaintiff on October 8, 2015, and of any responsive documents for which the respondents may claim exemptions in the future.
DISCUSSION
I
The commission moved to dismiss the plaintiff's appeal for lack of aggrievement. In its supporting memorandum of law, the commission specifically discussed three of the plaintiff's claims and stated its reasons for concluding that the plaintiff is not aggrieved as to those claims. As to any other claims, the commission merely argued that the facts alleged by the plaintiff are insufficient to establish aggrievement.
" [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss tests . . . whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Dorry v. Garden, 313 Conn. 516, 522, 98 A.3d 55 (2014).
" [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). " [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2014). In determining whether a court has subject matter jurisdiction, however, " every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Id.
Aggrievement is a specific statutory requirement for appeals from final decisions of the commission under General Statutes § § 1-206(d) and 4-183(a). Section 1-206(d) provides in relevant part that " [a]ny party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183." Section 4-183(a), in turn, provides in relevant part that " [a]ny person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section."
Aggrievement includes both classical and statutory aggrievement. " Classical aggrievement is the ordinary judicial analysis of whether the facts alleged include conduct that has injured or likely will injure a specific, personal, legal interest of the party." Burton v. Freedom of Information Commission, 161 Conn.App. 654, 659, 129 A.3d 721 (2015), cert. denied, 321 Conn. 901, 136 A.3d 642 (2016). Statutory aggrievement, unlike classical aggrievement, " exists by legislative fiat--where the legislature has enacted a statute that confers standing on anyone who falls within a certain group." (Internal quotation marks omitted.) Id., 665-66.
A
In support of its argument that the plaintiff is not aggrieved by the commission's failure to impose a civil penalty, the commission relied upon Burton v. Freedom of Information Commission, supra., 161 Conn.App. 654. Although the plaintiff argued that Burton is factually distinguishable from this case, the court concludes that Burton precludes a finding that the plaintiff is aggrieved by the commission's failure to order a civil penalty against the respondents.
In Burton, as here, a complainant before the commission appealed the commission's decision declining to impose a civil penalty against a state respondent. Burton v. Freedom of Information Commission, supra, 161 Conn. at 657. The trial court dismissed the complainant's appeal on that issue for lack of standing. Id., 658. The Appellate Court affirmed the trial court's judgment. Id., 656. Based on an analysis of the language and apparent intent of General Statutes § 1-206(b)(2), the Appellate Court concluded that the legislature had differentiated between remedies that the commission could provide as relief " to rectify the denial of any right" conferred by the act and tools that it could employ to promote compliance with the act. Id., 662-65. The Appellate Court observed that " the injunctive relief authorized by the 'may . . . order' clause is a traditional remedy, whereas a civil penalty payable to the state is not." Id., 665. It concluded that " [w]ithin this overall framework of FOIA relief versus FOIA discretionary tools, the civil penalty that the plaintiff seeks here falls into the second category--discretionary tools. [The plaintiff] has no right to it as a remedy. The commission's decision not to impose it thus violates no legal interest of the plaintiff." Id. The court concluded that the plaintiff in Burton was neither classically nor statutorily aggrieved. Id., 665-67.
The Appellate Court's conclusion that the plaintiff in Burton was neither classically nor statutorily aggrieved was based upon its interpretation of § 1-206(b). It concluded that § 1-206(b) did not confer a legal right on a complainant in a FOIA matter to seek a civil penalty and that the complainant could therefore not be aggrieved by a decision declining to impose such a penalty. Id., 665. The same statute and the same analysis apply to the plaintiff's appeal in this case. Accordingly, in light of Burton, the plaintiff in this case is neither classically nor statutorily aggrieved by the commission's decision declining to impose a civil penalty on the respondents. The portion of the plaintiff's appeal that seeks the imposition of a civil penalty is accordingly dismissed.
B
The commission also moved to dismiss the plaintiff's appeal of the commission's recommendation that the plaintiff refrain from filing additional FOIA requests while the respondents were working to comply with the request at issue in this case. The plaintiff opposed the motion. Neither the commission nor the plaintiff cited any relevant authority on this point. The court's own research has not found any authority holding that a nonbinding suggestion by an agency can infringe upon a specific, personal, legal interest of the party to whom the suggestion is directed. To the contrary, the only authorities it has found on this question hold that there is no appeal from a nonbinding advisory opinion. See East Side Civic Association v. Planning & Zoning Commission, 161 Conn. 558, 560, 290 A.2d 348 (1971), citing Sheridan v. Planning Board, 159 Conn. 1, 9, 266 A.2d 396 (1969).
In the present case, the commission did not order the plaintiff to refrain from filing further FOIA requests; it merely suggested that he do so. Because this suggestion was purely advisory and in no way limited the plaintiff's legal right to file additional FOIA requests, he is not aggrieved by it. The portion of his appeal relating to the commission's suggestion is dismissed.
C
The commission also argued that the plaintiff is not aggrieved by that portion of its order that directs the respondents to make a good faith effort to provide documents responsive to the plaintiff's request within nine months of the decision. Relying again on Burton, supra, the commission argued that General Statutes § 1-206(b) does not confer upon the plaintiff a right to any particular form of relief and that he is therefore not aggrieved. The court disagrees.
In Burton, the court distinguished between " remedies" the commission could order as injunctive relief and " tools" it could use to facilitate future compliance with the act. In this case, the commission's order, which directs the respondents to attempt to comply with the plaintiff's request within nine months, is clearly intended to be a remedy for the denial of the plaintiff's right, under General Statutes § 1-212(a), to receive, " promptly upon request, a plain, facsimile, electronic or certified copy of any public record." This is a specific, personal, legal interest that the plaintiff is entitled to enforce. See General Statutes § 1-206(b)(1) (" Any person denied . . . any . . . right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission"). Where, as here, the commission finds a violation of a right under § 1-212, it has broad discretion under § 1-206 to fashion appropriate remedies. That discretion, however, is not unreviewable. General Statutes § 4-183(j) directs the court to sustain an appeal if it finds that " substantial rights of the person appealing have been prejudiced because the administrative . . . decisions are . . . characterized by abuse of discretion or clearly unwarranted exercise of discretion."
In this case, the plaintiff alleges that his request of February 4, 2015, was identical to a request he had made on August 19, 2013, and that the commission's order of October 28, 2015, allowing at least nine additional months for compliance was an abuse of discretion because it violated his right to receive the documents " promptly." Although the plaintiff will be held to the strict standard imposed by § 4-183 to establish, based on the entirety of the evidence in the record, that the commission's decision constituted an abuse of its discretion, the court concludes that the plaintiff has alleged sufficient facts to establish aggrievement. The court has jurisdiction to consider this claim.
D
The commission also generally argued that the plaintiff had failed to allege facts that would support a finding that he was aggrieved by any of the other claims in his appeal. The court ordinarily would not consider such an inadequately briefed assertion. At oral argument, however, the commission's counsel said that she had a difficult time discerning exactly what the plaintiff was claiming. The court agrees that the plaintiff's discursive and loosely organized complaint makes it difficult to determine exactly what claims the plaintiff is making. It recognizes, moreover, that aggrievement is a prerequisite to this court's exercise of jurisdiction over the remaining claims in the plaintiff's appeal. It also considers that a party who prevails below is generally not aggrieved. See Blue Cross/Blue Shield of Connecticut, Inc. v. Gurski, 47 Conn.App. 478, 481, 705 A.2d 566 (1998). On the other hand, a prevailing party " can be aggrieved if the relief awarded to that party falls short of the relief sought." Id. Accordingly, the court has reviewed what it believes to be the plaintiff's remaining claims to determine whether the plaintiff has alleged sufficient facts to show aggrievement.
The fourth claim in the plaintiff's appeal is that the commission erred in finding that the plaintiff had agreed to narrow the scope of his request as described in paragraph 11 of the final decision. In this claim, the plaintiff disputes a factual finding of the commission, alleging that he did not consent to some of the limitations described by the commission. General Statutes § 4-183(j) directs the court to consider whether " substantial rights of the person appealing have been prejudiced because the administrative findings . . . are . . . clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record." The court recognizes that § 4-183(j) forbids the court to " substitute its judgment for that of the agency as to the weight of the evidence on questions of fact." Although the plaintiff bears a heavy burden to establish that such a finding is clearly erroneous, the court has jurisdiction to decide whether substantial evidence in the record supports the finding that the plaintiff agreed to narrow his request as described in paragraph 11. The court concludes that the plaintiff has alleged sufficient facts to show aggrievement as to this claim. Accordingly, the motion to dismiss this claim is denied.
The fifth claim in the plaintiff's appeal is that the commission did not provide any mechanism for an in camera review of documents that the respondents claimed are exempt from disclosure. He claimed that on October 8, 2015, the respondents disclosed a privilege log of documents they claimed to be exempt from disclosure. The proposed final decision had been issued by the hearing officer on October 1, 2015, and the commission voted on the proposed final decision on October 28, 2015.
This claim relates to the plaintiff's right, under General Statutes § 1-212(a), to receive a copy of all non-exempt public records he requested. The court concludes that he has alleged sufficient facts to show aggrievement. The court questions, however, whether the plaintiff has exhausted his administrative remedies with respect to this claim. Based on the pleadings, it is not clear to the court that the plaintiff properly raised this issue before the commission voted on the final decision. The evidentiary record was necessarily closed before the hearing officer issued the proposed final decision on October 1, 2015, and the plaintiff does not allege that he moved to open the record to introduce the preliminary privilege log before the commission adopted the proposed final decision as its final decision.
" It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter . . . [B]ecause the exhaustion doctrine implicates subject matter jurisdiction, we must decide as a threshold matter whether that doctrine requires dismissal of the plaintiff['s] claim." (Citations omitted; internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn. 558, 563, 821 A.2d 725 (2003). Questions of subject matter jurisdiction cannot be waived by the parties and may be raised by the court sua sponte. See Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 617-18, 577 A.2d 1017 (1990) (affirming trial court's dismissal of appeal, sua sponte, under General Statutes § 4-183 for failure to exhaust administrative remedies).
The issue of exhaustion was not addressed in the parties' briefs. Accordingly, the court directs the parties to address the question of exhaustion in their briefs on the merits of the plaintiff's appeal. The court will first decide whether the plaintiff exhausted his administrative remedies as to his claim for an in camera review of allegedly exempt documents. It will address the merits of the claim only if it concludes that the exhaustion requirement has been satisfied.
The sixth claim in the plaintiff's appeal is that the commission erred in FIC 2014-156 when it ruled that the plaintiff's complaint to the commission was untimely. The commission addressed this claim by moving to strike two of the plaintiff's requests for relief: first, his request that the court determine that the commission erred in its February 4, 2015 decision in FIC 2014-156 when it concluded it lacked jurisdiction; and second, his request that the court " protect future complainants" before the commission from having their complaints dismissed due to " incorrect Jurisdiction arguments." The commission argued that the plaintiff is essentially seeking to relitigate an issue that was raised in this court in his appeal in Aronow I . Because the court dismissed Aronow I and the plaintiff did not appeal that dismissal to the Appellate Court, the commission claims that there is no relief this court can afford with respect to the final decision that was at issue in Aronow I .
The plaintiff argued, in opposition, that the commission is estopped from attempting to bar this claim because its counsel represented to the court, in Aronow I, that the commission would take the evidence from FIC 2014-156 into account in making its decision in FIC 2015-127, and that it would not view the latter complaint in isolation. The plaintiff argued that he did not appeal the dismissal of Aronow I because he relied on the commission's representations. The commission did not respond to the plaintiff's estoppel arguments.
The commission did not cite any legal authority for its argument that this claim is barred. It is not clear whether its arguments are founded upon statutes, rules of practice, or case law regarding finality of judgments. The court concludes that the issue as presented is inadequately briefed. It therefore declines to address it at this stage in the appeal. See State v. Buhl, 321 Conn. 688, 722-29, 138 A.3d 868 (2016). The commission is not precluded from raising this issue in its brief on the merits of the appeal.
Finally, the commission moved to strike the plaintiff's request for costs as premature because he has not yet prevailed on appeal. General Statutes § 4-183(l ) and General Statutes § 4-184a permit the award of costs to a party that prevails against the state in certain specific circumstances. The plaintiff's request for costs is no more premature than any other request for relief; all requests for relief are contingent on a plaintiff's ability to prevail on the merits of his claim. If--and only if--the plaintiff prevails on appeal and satisfies the requirements of § 4-184a, the court may, in its discretion, award him reasonable fees and expenses. The court concludes that the request for costs simply serves to put the commission on notice of the plaintiff's intention to seek costs if he prevails. The motion to strike it is therefore denied.
General Statutes § 4-183(l ) provides in relevant part: " No costs shall be taxed against the state, except as provided in section 4-184a."
II
Also pending before the court is the plaintiff's request to amend his complaint. He initially filed this as an " addendum" to his complaint on November 23, 2016. See Docket Entry #128. On November 28, 2016, the commission objected to the addendum as an improper attempt to amend the complaint and as containing evidence outside the record on appeal. On the same day, the plaintiff filed a request for leave to amend, asking the court to consider the previously filed addendum as a proposed amendment to his complaint. The commission subsequently reiterated its objection.
In his proposed amendment, the plaintiff alleged that the commission improperly granted a stay of its order when he filed this appeal and that it failed to answer his questions about a procedure for obtaining an in camera review of documents for which the respondents claim an exemption. As the basis for these allegations, he sought to add to the record certain e-mail communications he had with commission staff after this appeal was filed. In response to the commission's objection that the proposed amendment relies on evidence outside the record, the plaintiff argued that the amendment should be permitted under General Statutes § 4-183(l). For the reasons discussed below, the court concludes that the amendment should not be permitted because it does not meet the requirements that § 4-183(l) imposes to allow the court to take proof outside the record. In addition, with respect to the first requested amendment, there is no relief that the court can afford, rendering the issue moot.
A
In paragraphs 56 through 64 of the proposed amendment to his complaint, the plaintiff alleged that the commission's counsel informed him by e-mail that an " automatic stay" of the commission's order was in effect during the pendency of the appeal. He further alleged that there is no automatic stay under General Statutes § 4-183(f) or under any commission regulations or policies. He also alleged that he never received an application for stay from the respondents and has not received documents on a rolling basis as ordered by the commission. He alleged that he is aggrieved by the commission's bias, its violation of statutory provisions, its actions in excess of its authority, and its arbitrary, capricious, and clearly unwarranted exercise of discretion. The plaintiff attached a copy of the e-mail at issue as Exhibit A to his proposed amendment. The e-mail was framed as a settlement proposal. In it, the commission's counsel represented that an " automatic stay" of the commission's decision was in effect, but that the respondents were willing to provide the requested documents if the plaintiff would agree to withdraw his appeal.
The e-mail, attached as Exhibit A to Docket Entry #128, states as follows:
General Statutes § 4-183(f) provides in relevant part: " The filing of an appeal shall not, of itself, stay enforcement of an agency decision." At the motion hearing, the commission's counsel admitted that there is no automatic stay in administrative appeals. She represented that her e-mail was merely intended to present the respondents' position that they would not continue to process the plaintiff's request while this appeal is pending because they are overwhelmed with other requests he has made.
Whatever the commission's counsel may have intended, the legal question before the court is whether the allegations in the proposed amendment satisfy the requirements of General Statutes § 4-183(l) for the introduction of evidence in court to prove facts that are not contained in the administrative record. That question must be addressed by considering three related provisions in the Uniform Administrative Procedures Act, of which § 4-183 is a part. § 4-183(a) allows a party " aggrieved by a final decision" to appeal to the Superior Court. General Statutes § 4-183(l) strictly limits the type of evidence that may be received by the court in an administrative appeal. It provides in relevant part: " The appeal shall be conducted by the court without a jury and shall be confined to the record. If alleged irregularities in procedure before the agency are not shown in the record or if facts necessary to establish aggrievement are not shown in the record, proof limited thereto may be taken in the court." General Statutes § 4-177(d) provides that: " The record in a contested case shall include: (1) Written notices related to the case; (2) all petitions, pleadings, motions and intermediate rulings; (3) evidence received or considered; (4) questions and offers of proof, objections and ruling thereon; (5) the official transcript, if any, of proceedings relating to the case, or, if not transcribed, any recording or stenographic record of the proceedings; (6) proposed final decisions and exceptions thereto; and (7) the final decision." It does not include settlement proposals conveyed in informal post-decisional correspondence with the agency's counsel. Construing § 4-183(l) in light of the provisions of § 4-177(d) and § 4-183(a), the court concludes that § 4-183(l) does not authorize the court to take proof as to correspondence from an agency staff member after an agency has rendered its final decision if such correspondence does not involve any action by the agency--in this case the commission--itself. The allegations in paragraphs 56 through 64 of the proposed amendment do not allege " irregularities in procedure before the agency" as required by General Statutes § 4-183(l). Nor do the allegations show bias on the part of the commission when it issued its final decision. The e-mail proffered by the plaintiff does not describe any action taken by the commission to stay its final decision and orders. Nor does it refer to any motion or proceeding before the commission, either before or after the commission issued its final decision. It simply contains an erroneous representation that the commission's order is subject to an " automatic stay."
The court does not mean to suggest that post-decisional activity is never part of an administrative record. A motion for reconsideration or a motion for a stay, for instance, would clearly be part of an administrative record under General Statutes § § 4-177(d)(2), 4-181a, and 4-183(f).
In addition, the relief that the plaintiff seeks is the revocation of the " automatic stay." General Statutes § 4-183(f) makes it clear that the commission's decision is not subject to an automatic stay while an appeal is pending. The record does not reflect a motion by the respondents either to the commission or to the court for a stay of the decision pending appeal.
The commission's counsel has conceded in open court that no stay is in effect. The court cannot vacate a stay that does not exist. There is no relief that the court can afford with respect to this issue, and it is therefore moot.
Although the court concludes that the proposed amendment should not be allowed, in the exercise of its supervisory authority over attorneys, the court directs the commission's counsel to serve a copy of this decision upon the respondents' counsel to ensure that the respondents are aware that the commission's order is not stayed pending the disposition of this appeal. The commission's counsel shall file a notice certifying that such service was made on or before May 15, 2017.
B
In paragraphs 65 through 71 of the plaintiff's proposed amendment, the plaintiff seeks to add to the record an e-mail exchange he had with the commission's ombudsman between April and July 2016, concerning the plaintiff's efforts to determine " what the process is with respect to questioning the privilege claim of documents provided after a preliminary or final decision has been made." See Docket Entry No. 128. These paragraphs complain about the " lack of clarity with respect to the mechanism" for obtaining in camera review of the documents identified in the preliminary privilege log the plaintiff received on October 8, 2015, and other privilege logs the plaintiff may receive in the future. The plaintiff attaches as an exhibit a copy of an e-mail in which the ombudsman responded to the plaintiff's inquiry as follows: " I think what you're asking is how to challenge an exemption that has been claimed by an agency. That would mean filing a complaint. If you are questioning the FOI Commission's decision on an exemption, then you would file an appeal in court."
Except in strictly limited circumstances, an appeal under § 4-183 is confined to the record on which the agency made the decision from which the appeal is taken. See General Statutes § 4-183(a), (l), and (j). The e-mails at issue in the proposed amendment were exchanged several months after the plaintiff filed this appeal from the commission's final decision. They thus do not make up a part of the record on which the agency made its final decision. They do not involve any allegations of irregularities in procedure before the agency. Nor do they tend to establish that the plaintiff was aggrieved by the commission's final decision, which was issued many months before these communications took place. The court concludes that they are not proper items of proof that may be taken under § 4-183(l).
The plaintiff argued that these paragraphs amplify the claim, asserted in paragraph 48 of his appeal, that the commission did not allow any mechanism for in camera review of the documents that the health center claimed were exempt in the preliminary privilege log they provided to the plaintiff on October 8, 2015, after the proposed decision was issued but before the final decision was adopted. That claim, however, must stand or fall on the record before the commission on October 28, 2015, when it voted to adopt the proposed decision. If the court concludes that the claim in paragraph 48 is properly before it, its review of that claim will be confined to the record available to the commission when it made its decision.
CONCLUSION
The commission's motion to dismiss is granted, for lack of aggrievement, as to the claims that the commission improperly declined to impose a civil penalty and improperly suggested that the plaintiff refrain from making additional records requests while the health center was attempting to respond to the request at issue here.
The commission's motion to dismiss is denied as to the claims that the commission erred in allowing the health center at least nine additional months to respond to the plaintiff's request and that the commission improperly narrowed the scope of the plaintiff's request.
The parties are directed to address, in their briefs on the merits, whether the plaintiff exhausted his administrative remedies with respect to the claim that the commission failed to provide a mechanism for in camera review of documents for which an exemption was claimed after the record of the hearing was closed but before the commission issued its final decision.
The court declines to address, as inadequately briefed, the commission's motion to strike the plaintiff's claim that the appeal in FIC 2014-156 was improperly dismissed. The court denies the commission's motion to strike the plaintiff's request for costs.
The plaintiff's request for leave to amend his appeal is denied because the allegations in the proposed amendment are based on evidence that cannot properly be admitted under General Statutes § 4-183(l).
The commission's counsel is ordered to serve a copy of this decision on the respondents, and to file a notice with the court certifying such service, no later than May 15, 2017.
General Statutes § 4-184a(b) provides in relevant part: " [T]he court may, at its discretion, award to the prevailing party, other than the agency, reasonable fees and expenses in addition to other costs if such prevailing party files a request for an award of reasonable fees and expenses within thirty days of the issuance of the court's decision and the court determines that the action of the agency was taken without any substantial justification."
As you know, the court ordered the FOIC to file an answer and record in the above-captioned matter by August 1, 2016. This will require the FOIC to order and pay for the transcripts of the July 1, 2015 hearing on the complaint. Before I order the transcripts, which are quite costly, I want to ask you to consider a settlement of the pending appeal. First, I want to make sure that you understand that when you filed this appeal, the order of the Commission in the Final Decision was stayed, which means that the Health Center is under no obligation to provide you with any responsive records until the appeal is resolved. However, I spoke with Jeff Blumenthal [counsel for the health center] this morning and, although the Health Center is not named as a defendant in your appeal, Attorney Blumenthal has agreed to provide you with records responsive to the request at issue in the Final Decision, despite the stay, if you will agree to withdraw your appeal. According to Attorney Blumenthal, the Health Center has been processing the FOI requests you have sent it since you filed this appeal, but has not worked on the request that is the subject of the appeal because of the automatic stay.Please let me know how you wish to proceed.