Greenwich v. Freedom of Information Commission

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TOWN OF GREENWICH ET AL. v. FREEDOM OF
INFORMATION COMMISSION ET AL.
(AC 46003)
(AC 46064)
Bright, C. J., and Suarez and Clark, Js.

Syllabus

The defendants, the Freedom of Information Commission (commission) and
B, appealed to this court from the judgment of the trial court sustaining
the administrative appeal filed by the town plaintiffs from the final
decision of the commission. The commission found that the plaintiffs
violated the Freedom of Information Act (§ 1-200 et seq.) (act) by denying
B’s request for records of any changes made to an investigative file for
a reported sexual assault and an associated application for an arrest
warrant because the plaintiffs failed to meet their burden of proving
that the requested records were exempt from disclosure as preliminary
drafts or records of standards, procedures, processes, software and
codes pursuant to statute (§ 1-210 (b) (1) and (20)). The court found that
the commission’s decision was clearly erroneous because the requested
records were exempt from disclosure pursuant to § 1-210 (b) (1) as
preliminary drafts. Held:
1. The trial court improperly substituted its judgment for that of the commis-
sion by concluding that the requested records were preliminary drafts
that were exempt from disclosure under § 1-210 (b) (1): because it was
undisputed that the plaintiffs failed to conduct a search to determine
whether the records requested by B existed and, to the extent they
existed, to review such records, the plaintiffs could not satisfy their
burden of establishing that those records were exempt from disclosure
as the parties claiming the exemption, and they could not have conducted
the statutorily mandated balancing test, which required that they deter-
mine whether the public interest in withholding such documents clearly
outweighed the public interest in disclosure, as that interest necessarily
depended on the nature of the information contained in the records;
moreover, the commission’s order directing the plaintiffs to retrieve the
requested records and to disclose them to B constituted an abuse of
its discretion, and, accordingly, the appropriate remedy in this case was
to have the plaintiffs conduct the search for the requested records and
to review any responsive records to determine whether any material is
exempt from disclosure under the act; furthermore, the commission’s
order requiring the plaintiffs to bear the cost of locating and producing
the records, when B had agreed, pursuant to statute (§ 1-212 (b)), to
pay those costs was unwarranted.
2. This court was not persuaded by the plaintiffs’ proffered alternative ground
for affirmance, that the requested records were exempt from disclosure
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Greenwich v. Freedom of Information Commission
as records of standards, procedures, processes, software and codes
under § 1-210 (b) (20): the plaintiffs failed to present any evidence before
the commission to substantiate their alleged safety concern involving
the specific software or codes that would be revealed by disclosure of
the requested records, merely asserting a vague safety concern based
on revealing information about the way that the database operated, such
that this court could not conclude that the plaintiffs satisfied their burden
of proving that the requested records were exempt from disclosure under
§ 1-210 (b) (20); moreover, in accordance with the act, the plaintiffs
were free to develop their own method of retrieving and producing the
requested records, and, thus, could avoid their concerns about potential
disclosures regarding their software or codes.
Argued February 5—officially released June 11, 2024

Procedural History

Administrative appeal from the decision of the named
defendant, brought to the Superior Court in the judicial
district of Stamford-Norwalk and transferred to the judi-
cial district of New Britain where the matter was tried to
the court, Cordani, J.; judgment sustaining the appeal,
from which the defendants appealed to this court.
Reversed; judgment directed.
Meredith Braxton, self-represented, with whom was
Mark Sommaruga, for the appellant in Docket No.
46003 (defendant Meredith Braxton).
Valicia Harmon, commission counsel, with whom,
on the brief, were Paula S. Pearlman, associate general
counsel, Colleen M. Murphy, general counsel, 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).
Opinion

BRIGHT, C. J. The defendants, the Freedom of Infor-
mation Commission (commission) and Attorney Mere-
dith Braxton, appeal from the judgment of the trial
court sustaining the administrative appeal filed by the
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Greenwich v. Freedom of Information Commission

plaintiffs, the Chief of Police of the Greenwich Police
Department, the Greenwich Police Department (depart-
ment), 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 Brax-
ton’s request for records of any changes made to an
investigative file and an associated application for an
arrest warrant because the plaintiffs failed to meet their
burden of proving that the requested records are
exempt from disclosure pursuant to General 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 com-
mission 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 commis-
sion’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]ocu-
ments 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 applica-
tion 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
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[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 techni-
cian, if necessary. . . .
‘‘[B]y letter dated June 16, 2020, the [plaintiffs]
informed [Braxton] that they did not ‘have any informa-
tion reflecting any changes that could have been made.’
In addition, the [plaintiffs] informed [Braxton] that
‘NexGen [Public Safety Solutions, the software vendor
responsible for developing and maintaining the depart-
ment’s databases (NexGen)] has informed the [depart-
ment] 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 informa-
tion 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 addi-
tion, [§] 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.
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***
‘‘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 data-
base in the form of database commands. . . .
***
‘‘With respect to the NexGen request, [the town] reit-
erated 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 dis-
closure under . . . § 1-210 (b) (1). My request was not
for any preliminary draft, rather for the database infor-
mation that reflects changes made to those files in the
NexGen system.
‘‘Moreover, even if my request had been for a prelimi-
nary 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 disclo-
sure.’’ (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
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that such records are, in fact, maintained in the [depart-
ment’s] database, and at the November 4, 2021 con-
tested case hearing, offered the testimony and affidavit
of Lee Wezenski, Chief Development Officer for Nex-
Gen . . . 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 appli-
cations, among other records, are created, revised and
maintained in such database. . . . [R]eports and other
documents may be edited or revised in the database
up 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, refer-
enced . . . 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 data-
base 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,
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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 data-
base commands in order to determine whether . . .
there is a record or records in the database that would
be responsive to [Braxton’s] request . . . .
‘‘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 posthearing
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 deter-
mined that the public interest in withholding such docu-
ments clearly outweighs the public interest in disclo-
sure.’ . . . [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 exempt from disclosure pursu-
ant to § 1-210 (b) (1) . . . .’’
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The hearing officer concluded that § 1-210 (b) (20)
did not apply ‘‘because the requested records are not
‘standards, procedures, processes, software or codes’
but rather, are records that may be produced upon
execution of certain database commands . . . .’’
Accordingly, the hearing officer found that the plaintiffs
violated the act and ordered that, ‘‘[w]ithin fourteen
days of the date of the notice of final decision, the
[plaintiffs] shall provide a copy of the records . . . to
[Braxton], free of charge.’’ The commission adopted
the hearing officer’s report in a final decision, and the
plaintiffs filed an administrative appeal in the Superior
Court pursuant to General Statutes § 4-183.
In their brief in support of their administrative appeal,
the plaintiffs argued that ‘‘requiring the plaintiffs to run
data commands on the [department’s] computer system
in order to elicit ‘text inserted, changed or deleted’ from
a certain file, violates [§] 1-210 (b) (1) and (20). In
addition, the commission . . . arbitrarily ignored evi-
dence presented at [the] hearing[s] that (1) the records
being sought were, in fact, preliminary drafts, (2) that
the plaintiffs made a good faith determination that with-
holding the records outweighed the public interest in
disclosure, (3) that . . . Braxton’s request to run the
computer [database] commands or codes . . . would
create a record of software and codes which are not
otherwise available to the public and would compro-
mise the security of the plaintiffs’ information technol-
ogy system, and (4) that the commission incorrectly
considered novel information presented at the hearing
and discounted the contradictory information available
at the time of . . . Braxton’s request.’’ The defendants
filed separate briefs in support of the commission’s
final decision. In its brief, the commission argued that,
because ‘‘the plaintiffs cannot definitively claim to
know the nature of any potentially responsive records’’
without first reviewing those records, their failure to
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run the database commands in order to review any
potentially responsive records precluded their claims
that the requested records are preliminary drafts and
that the plaintiffs had performed the balancing test
required under § 1-210 (b) (1). The commission also
argued that it ‘‘properly found that the requested
records are not ‘standards, procedures, processes, soft-
ware or codes’ [within the meaning of § 1-210 (b) (20)]
. . . .’’ In her brief, Braxton made substantially similar
arguments to those made by the commission, but she
also contended that ‘‘[s]ubstantial evidence supports
the conclusion that the records are not preliminary
drafts or notes.’’ Braxton, however, acknowledged that
‘‘[t]he hearing officer did not explicitly rule on whether
. . . the records sought were ‘preliminary drafts or
notes’ [within the meaning of § 1-210 (b) (1)].’’
The trial court issued a memorandum of decision
sustaining the plaintiffs’ administrative appeal. The
court agreed in part with the plaintiffs, concluding that
the commission’s decision was clearly erroneous because
the requested records are exempt from disclosure pur-
suant to § 1-210 (b) (1), but it rejected their claim that
the requested records are exempt pursuant to § 1-210
(b) (20). As to the application of § 1-210 (b) (1), the
court reasoned that ‘‘a review of the records produced
by executing the database commands was not neces-
sary to determine whether any responsive documents
produced were preliminary drafts because the request
itself specifically and solely sought preliminary drafts
by [its] very terms.’’ The court noted that ‘‘[w]hether
the changes, insertions and deletions are provided in
red-line form or merely in notation or list form, the
possession of the changes, insertions and deletions
along with the final document is the possession of pre-
liminary drafts of the documents.’’ (Internal quotation
marks omitted.) ‘‘Accordingly, either the records pro-
duced would be nonresponsive to the request or they
would be responsive preliminary drafts.
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‘‘To the extent that executing the database commands
produced responsive preliminary drafts, it was also not
necessary to review these documents to discern certain
basic attributes of the documents. . . . [T]he request
sought preliminary drafts of police reports, warrants,
and warrant applications relating to a specific alleged
sexual assault. . . . [B]asic assessments concerning
whether the public interest in withholding the docu-
ments outweighs the public interest in disclosure can
be made without reviewing the specific documents.
. . . In view of the importance of these documents, it
is not surprising that procedures for [their] creation,
review, authorization and finalization . . . are in place
to ensure that the official final documents are accurate,
well considered, and consistent with our law. . . .
[U]ndermining [those] procedures . . . by releasing
preliminary drafts of these documents to the public
poses a real risk of undermining police operations,
investigations, prosecutions, and the faith and confi-
dence in our legal system. Preliminary drafts of these
documents are nonfunctional and have not been consid-
ered and reviewed as is required by the normal review
and authorization process. Accordingly, they may con-
tain mistakes, poor judgment, and investigatory and
prosecutorial thought processes that have not been
finalized, any of which may unnecessarily negatively
impact the rights of defendants, victims, and the state
. . . . [Exposing] [s]uch preliminary mistakes, poor
judgment, and . . . investigatory and prosecutorial
thoughts, all of which would have been properly cor-
rected and refined through the applicable procedures,
run the risk of unfairly and unnecessarily undermining
confidence in the police and the justice system.
‘‘Officer [Gene] Chan and Deputy Chief [of Police]
[Robert] Berry [of the department] generally testified
as to the foregoing concerns, and Deputy Chief Berry
testified that the . . . department determined that
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releasing such preliminary drafts was not in the public’s
best interest. Officer Chan testified that the police
department had a process for reviewing reports and
warrants before they were authorized and finalized,
that producing previous versions of police reports and
warrants endangered the integrity of the reports and
warrants, and that it was important that each document
be ‘locked’ in final form after the writing, authorization
and review process was complete.1 . . . Officer Chan
also testified concerning the importance of only having
one . . . official signed off version of each report or
warrant.2 . . . Deputy Chief Berry testified concerning
the process of finalizing reports and warrants, the
importance of the review process, and the importance
1
Officer Chan testified that ‘‘[t]he term is actually not locking, it’s signing
off on a report which your direct supervisor does, and a [commanding
officer will] review it. In terms of locking a report, that means if the report
is sensitive, you lock the report so no one else can access or look at the
report. So it’s really signing off [on] the report and the commander reviewing
the report. . . . So, the first step is it’s signed off [on] and it goes to a
higher supervisor, meaning a captain or above. They will [command] review.
Once it’s command reviewed, it will [block] the tab to change [the document]
in any way, shape or form. . . . I believe—well, there’s another step in the
process so—if [I] could backtrack. So, the officer will complete the report,
whether it’s a motor vehicle accident or [some other] report. He will . . .
sign off on it. The direct supervisor will then sign off on it, [but] it’s [a]
PDF, meaning they electronically sign it. So then the direct supervisor signs
off on it, then it gets pushed forward to the commanding officer. . . . [After
the commanding officer reviews it], [t]hat incident, the call for servicing,
called the CFS, it becomes locked. That report becomes locked. Not locked,
it—there’s different terms for it. It becomes [that] it cannot be changed,
that report itself. . . . The official report is the command reviewed report
on file.’’ During Braxton’s cross-examination of Officer Chan, however, he
acknowledged that a supervisor could ‘‘unsign’’ a report in NexGen for
someone to make changes to the report.
2
When asked ‘‘what would be the danger in [changes to reports] becoming
public,’’ Officer Chan testified that ‘‘the integrity of the report would be in
question. Once it’s signed off, the whole purpose of it is . . . similar to
chain of custody of evidence, once it’s signed off and given to court, that
is the final version. And we can’t have different versions floating around in
public or different versions even in court. So that’s the whole purpose of
commander review and signing off on a report.’’
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of only maintaining the final official documents.3 . . .
Deputy Chief Berry also testified that he was concerned
that running nonstandard, previously unknown data-
base commands might endanger the integrity or security
of the database and its records. . . . Finally, Deputy
Chief Berry testified that attempting to run the nonstan-
dard, previously unknown database commands to pro-
duce unauthorized previous versions of police reports
and warrants was not ‘in the best interest of the pub-
lic.’4 . . .
3
During direct examination, Deputy Chief Berry testified that ‘‘[w]hat we
maintain are the PDF, the permanent data files that are created once the
officer completes their report. An officer prepares the report, they sign off
on it, a supervisor then reviews it, signs off on it, and there’s a command
review, and that is the record that is maintained. . . . When this initially
came up, we queried NexGen about the prospect of doing this. We were
told that it’s not possible, we are not allowed to do it, and there would be
legal ramifications. But just in the interest of trying to find out what is
possible, you know, we checked.’’
4
Deputy Chief Berry testified generally about the public interest in
accessing prior versions of department records during the following
exchange with the plaintiffs’ counsel:
‘‘Q. You’ve heard some discussion about the public interest in accessing
these prior versions. Did you consider that in weighing the request?
‘‘A. I wouldn’t say in the terms of the exact discussion of public interest
but we had a discussion—I think the analogous or—you know, it’s compara-
tive to releasing a typewriter ribbon from a typewriter as officers prepared
reports thirty or forty years ago, you know, there’s different versions, an
officer might have a spelling mistake or going to change it back. Calling
those deletions I think is a very—it’s not a good way to display what this
really is talking about. As even the NexGen representative said, these are
not documents we’re talking about. They just—they’re keystrokes. It’s data.
And again, I think that comparison to a typewriter ribbon is probably apro-
pos.
‘‘Q. And what is the concern about that becoming a public document?
‘‘A. Well, I have several concerns and actually more as I sat here today
listening to it. We do have and we did [an] investigation into this matter,
we do believe that there has been a breach of our data, which . . . goes
to why we’re very interested and concerned about this.
‘‘Q. Do you know what would [happen] if for some reason you were
able to enter the keystrokes which were given to you. Do you know what
would happen?
‘‘A. Absolutely not. I heard testimony today about what it would do, but
we do [not] have the expertise. We don’t have the knowledge, we’ve never
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‘‘Accordingly, it is clear that any responsive docu-
ments produced by executing the database commands
would be preliminary drafts of police reports, warrants,
and warrant applications associated with a particular
alleged sexual assault investigation. It is also clear that
the two police witnesses testified concerning real con-
cerns about releasing preliminary drafts of the forego-
ing documents. Lastly, it is clear that the deputy chief
testified that he had determined that releasing such
unauthorized preliminary drafts was not in the best
interest of the public or, said another way, that the
public’s interest in withholding these preliminary drafts
outweighed the public interest in disclosure. . . .
‘‘[Section] 1-210 (b) (1) is absolutely clear that it is
the province of the public agency, not the [commission],
to make this determination. . . . See Van Norstrand
v. Freedom of Information Commission, 211 Conn.
339, 345, 559 A.2d 200 (1989). Deputy Chief Berry was
also clear in testifying that the . . . department had
made this determination: ‘And I guess that our state-
ment on that is that we don’t think it would be in the best
interest of the public.’ . . . Determining that releasing
preliminary drafts is not in the best interest of the public
is the same as determining that the public’s interest
in withholding them outweighs the public’s interest in
disclosure. Both Deputy Chief Berry and Officer Chan
testified concerning the reasons for their determination,
which were, as noted above, not surprising and reason-
able. The agency’s determination of the public interest
in this regard is reviewed on an abuse of discretion
standard, which standard is certainly not met here.
. . .
‘‘Overlaid on all of the foregoing, one must give con-
sideration to the requirement that the . . . department
done this before. This is not something that we do. And again, the information
that we’ve had from NexGen [is that] once the file is PDF, that’s the record.
That’s the official record we have.’’
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run nonstandard, noncommercial, previously unknown
database commands on its database. It must be noted
that these commands were received from an individual,
albeit the Chief Development Officer of NexGen, as a
result of a subpoena. It is apparent that these commands
are nonstandard, in that they are not provided to Nex-
Gen’s customers in the ordinary course of business. It
is also apparent that the . . . department had not pre-
viously received these commands in connection with
its database and that, before [Braxton’s] request was
received, the . . . department was unaware of the exis-
tence of the commands and of the very fact that the
database retained preliminary drafts of documents.
Accordingly, it was not unreasonable for Deputy Chief
Berry to have legitimate concerns about running these
commands. He clearly testified that the . . . depart-
ment was concerned that running the commands, some-
thing it had never done before, might have unknown
impacts on the security and integrity of the database
and the information contained therein. . . . These
commands came only with the assurance of a single
individual as to their appropriateness, function and
safety in relation to the system. Accordingly, it is not
surprising and not unreasonable that the police depart-
ment was hesitant to run such commands. The court
does not believe that a public agency is required to put
its computer system at risk by running nonstandard,
noncommercial, previously unknown and never before
run commands which have been provided by an individ-
ual in order to satisfy the agency’s . . . search obliga-
tion.’’ (Citations omitted; emphasis omitted; footnotes
added; footnotes omitted.)
As to § 1-210 (b) (20), the court reasoned that ‘‘[t]he
requested records are not records of standards, proce-
dures, processes, software and codes. . . . [Braxton
did not seek] disclosure of the database commands.
. . . [T]he database commands were supplied pursuant
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[to] a subpoena in a proceeding that was separate from
this administrative proceeding. The mere use of those
commands by the . . . department would not poten-
tially implicate the exemption in § 1-210 (b) (20) unless
the records which were produced were records of stan-
dards, procedures, processes, software and codes. Such
is clearly not the case here.’’ Accordingly, the court
sustained the plaintiffs’ administrative appeal, and
these appeals followed.5
As a preliminary matter, we note ‘‘the limited scope of
judicial review afforded by the Uniform Administrative
Procedure Act; General Statutes § 4-166 et seq.; to the
determinations made by an administrative agency. [W]e
must decide, in view of all of the evidence, whether
the agency, in issuing its order, acted unreasonably,
arbitrarily or illegally, or abused its discretion. . . .
Even as to questions of law, [t]he court’s ultimate duty
is only to decide whether, in light of the evidence, the
[agency] has 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 appli-
cation of the law to the facts found and could reasonably
and logically follow from such facts. . . . Neither this
court nor the trial court may retry the case or substitute
its own judgment for that of the [administrative
agency].’’ (Citation omitted; internal quotation marks
omitted.) Aronow v. Freedom of Information Commis-
sion, 189 Conn. App. 842, 858, 209 A.3d 695, cert. denied,
332 Conn. 910, 210 A.3d 566 (2019).
I
On appeal, the defendants claim that the court
improperly substituted its judgment for that of the com-
mission in concluding that the requested records are
5
Braxton filed her appeal in this court on November 14, 2022, which
was assigned docket number AC 46003, and, on December 5, 2022, the
commission filed its appeal, which was assigned docket number AC 46064.
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preliminary drafts that are exempt from disclosure
under § 1-210 (b) (1). Specifically, the defendants claim
that the court improperly concluded that it was not
necessary for the plaintiffs to review the requested
records to determine, first, that those records are pre-
liminary drafts and, second, that the public interest in
withholding the records outweighed the public interest
in disclosure pursuant to § 1-210 (b) (1). We will address
each subclaim in turn.
The relevant legal principles regarding the prelimi-
nary drafts or notes exemption under the act are well
settled. Section 1-210 (b) (1) provides: ‘‘Nothing in the
Freedom of Information Act shall be construed to
require disclosure 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 . . . .’’
Accordingly, ‘‘a party claiming that records are
exempt from disclosure under § 1-210 (b) (1) must
prove, first, that the records are preliminary drafts or
notes and, second, that the public interest in withhold-
ing the documents clearly outweighs the public interest
in disclosure. . . .
‘‘With respect to § 1-210 (b) (1), Wilson v. Freedom
of Information Commission, 181 Conn. 324, 332–33,
435 A.2d 353 (1980), defined preliminary drafts in a
manner that our courts subsequently have uniformly
applied. [T]he term preliminary drafts or notes relates to
advisory opinions, recommendations and deliberations
comprising part of the process by which government
decisions and policies are formulated. . . . Such notes
are predecisional. They do not in and of themselves
affect agency policy, structure or function. They do not
require particular conduct or forbearance on the part
After both appeals were ready for argument, Braxton filed a motion to
consolidate the two appeals, which this court denied.
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of the public. Instead, preliminary drafts or notes reflect
that aspect of the agency’s function that precedes for-
mal and informed [decision-making]. . . .
‘‘Preliminary is defined as something that precedes
or is introductory or preparatory. As an adjective it
describes something that is preceding the main dis-
course or business. A draft is defined as a preliminary
outline of a plan, document or drawing . . . . By using
the nearly synonymous words preliminary and draft,
the legislation makes it very evident that preparatory
materials are not required to be disclosed. . . .
‘‘[T]he concept of preliminary [within the meaning
of § 1-210 (b) (1)], as opposed to final, should [not]
depend upon . . . whether the actual documents are
subject to further alteration. . . . [P]reliminary drafts
or notes reflect that aspect of the agency’s function
that precedes formal and informed [decision-making].
. . . It is records of this preliminary, deliberative and
predecisional process that we conclude the exemption
was meant to encompass.’’ (Citations omitted; internal
quotation marks omitted.) Lindquist v. Freedom of
Information Commission, 203 Conn. App. 512, 526–27,
248 A.3d 711 (2021).
The statute, however, does not provide a categorical
exemption for all preliminary drafts or notes, as the
public agency claiming the exemption must determine
‘‘that the public interest in withholding such documents
clearly outweighs the public interest in disclosure
. . . .’’ General Statutes § 1-210 (b) (1). ‘‘Although the
statute places the responsibility for making that deter-
mination on the public agency involved, the statute’s
language strongly suggests that the agency may not
abuse its discretion in making the decision to withhold
disclosure. The agency must, therefore, indicate the
reasons for its determination to withhold disclosure
and those reasons must not be frivolous or patently
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unfounded.’’ (Internal quotation marks omitted.) Van
Norstrand v. Freedom of Information Commission,
supra, 211 Conn. 345.
In applying the exemptions set forth in the act, we
are mindful ‘‘that the general rule under the [act] is
disclosure, and any exception to that rule will be nar-
rowly construed in light of the general policy of open-
ness expressed in the [act]. . . . [Thus] [t]he burden of
proving the applicability of an exception [to disclosure
under the act] rests upon the party claiming it.’’ (Internal
quotation marks omitted.) Lindquist v. Freedom of
Information Commission, supra, 203 Conn. App. 525–
26.
Because the defendants’ claim involves the applica-
tion of the well settled meaning of the preliminary drafts
exemption to the underlying facts, ‘‘[t]he appropriate
standard of judicial review . . . is whether the com-
mission’s factual determinations are reasonably sup-
ported by substantial evidence in the record taken as
a whole.’’ (Internal quotation marks omitted.) Director,
Dept. of Information Technology v. Freedom of Infor-
mation Commission, 274 Conn. 179, 187, 874 A.2d
785 (2005).
The defendants first claim that the court improperly
determined that it was not necessary to review the
requested records for the plaintiffs to conclude that
those records are preliminary drafts or notes within the
meaning of § 1-210 (b) (1). Braxton argues that ‘‘the
case reports and arrest warrant application in this case
are not part of a ‘deliberative and predecisional pro-
cess.’ The plaintiffs presented no testimony at all indi-
cating any discussion occurred or recommendations
[were] made concerning the material recorded or that
[the department] engaged in a ‘free and candid
exchange of ideas.’ ’’ The commission argues that,
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because ‘‘it is undisputed that the plaintiffs never deter-
mined whether the requested records exist, never
reviewed the requested records, and never provided
any testimony specific to the requested records or the
process for finalizing the actual reports related to such
records,’’ ‘‘there is no evidence establishing that
changes to such requested records were only made
prior to the finalized report(s).’’ Both defendants also
claim that the plaintiffs could not conduct the mandated
public interest balancing test without first reviewing
the records.
In response, the plaintiffs contend that, ‘‘[b]ecause
of the nature of the request—insertions and deletions—
it is not necessary to review the prior documents, if
any, to know that they constitute preliminary drafts.’’
They argue that ‘‘the final police report is the decisional
document. The insertions and deletions made to it in
the drafting process are predecisional, and the deci-
sions made after the police report is finalized into the
operative version, are postdecisional. Officer Chan’s
testimony outlined the process of command reviewing
the documents before the police report is locked, at
which time the report is final . . . .’’ In its reply brief,
the commission maintains that the generalized testi-
mony as to the process typically followed by the depart-
ment was insufficient to establish ‘‘that such processes
and procedures were actually followed here.’’ We agree
with the commission and conclude that, without first
conducting a search to determine whether the records
requested by Braxton exist and, to the extent they exist,
reviewing such records, the plaintiffs cannot satisfy
their burden of establishing that those records are
exempt from disclosure pursuant to § 1-210 (b) (1).
Our Supreme Court has recognized that, ‘‘[w]here the
nature of the documents, and, hence, the applicability
of an exemption, is in dispute it is not only within the
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commission’s power to examine the documents them-
selves, it is contemplated by the act that the commission
do so. . . . [T]he commission [has] a central role in
resolving disputes administratively under the act. To
fulfill this role effectively, the commission’s determina-
tions must be informed. It should not accept an agency’s
generalized and unsupported allegations relating to doc-
uments claimed to be exempt from disclosure. . . .
Unless the character of the documents in question is
conceded by the parties, an in camera inspection of
the particular documents by the commission may be
essential to the proper resolution of a dispute under the
act. Where such an inspection would be burdensome
on the commission . . . or ineffective because of the
absence of the adversarial process . . . other methods
for ascertaining the character of the documents may
be employed by the parties and the commission. The
agency representative may testify concerning the con-
tent and use of the documents, or supply affidavits to
the commission relating to their content and use. Any
such testimony or affidavits must not be couched in
conclusory language or generalized allegations, how-
ever, but should be sufficiently detailed, without com-
promising the asserted right to confidentiality, to pres-
ent the commission with an informed factual basis for
its decision in review under the act. . . . No matter
what method is utilized before the commission, how-
ever, one thing is clear: It is the agency that bears the
burden of proving the applicability of an exemption
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Wilson v. Freedom of Information Commis-
sion, supra, 181 Conn. 339–41.
In Wilson, our Supreme Court explained that it was
not necessary for the commission to examine the
requested records ‘‘because the record disclose[d] that
[the head of the agency] testified before the commission
concerning their contents in sufficient detail and neither
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the commission nor [the requester] question[ed] the
advisory and predecisional nature of those documents.’’
Id., 341. In the present case, however, the plaintiffs
never entered the database commands to search for
responsive records and, therefore, could not offer any
detailed testimony about the contents of any responsive
records. Thus, although we recognize that the terms of
the request itself suggest that the requested records are
preliminary drafts or notes, as Braxton sought changes,
insertions and deletions to the file and arrest warrant
application, in concluding that the requested records
necessarily are preliminary drafts or notes, the trial
court relied on the plaintiffs’ ‘‘conclusory language
[and] generalized allegations’’ about the nature of
records that the plaintiffs neither accessed nor reviewed.
Id.

The court reasoned that ‘‘there are only two possibili-
ties. The documents in question may never have been
changed at all, in which case there would be no ‘changes
made to (i.e., text inserted, changed or deleted from
the file)’ to be produced as responsive to [Braxton’s]
request. In the alternative, changes were made to the
documents and these changes comprised preliminary
drafts that are protected from disclosure pursuant to
§ 1-210 (b) (1).’’ There is, however, a third possibility,
because, although Officer Chan testified that ‘‘[t]he offi-
cial report is the command reviewed report on file,’’ he
also testified that a supervisor could ‘‘unsign’’ a report
in NexGen for someone to make changes to the report.
Because the plaintiffs did not run the database com-
mands to determine whether any responsive records
exist, much less review the contents of any such
records, they do no not know if, when, or by whom
any changes to any such records were made and, thus,
whether the requested records are a part of a ‘‘prelimi-
nary, deliberative and predecisional process . . . .’’
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(Internal quotation marks omitted.) Lindquist v. Free-
dom of Information Commission, supra, 203 Conn.
App. 527. It follows, therefore, that there could be
responsive records that are not part of the predecisional
process but, rather, are part of a ‘‘postdecisional’’ pro-
cess. Thus, the plaintiffs’ presentation of testimony
about the general process for finalizing reports was
insufficient to establish that the proper process was
followed as to the requested records. See New Haven
v. Freedom of Information Commission, 4 Conn. App.
216, 220–21, 493 A.2d 283 (1985) (‘‘The plaintiffs failed
to submit the requested records before the [commis-
sion] for review and it is their burden to prove the
applicability of the exemption. . . . Mere speculative
and conclusory statements as to the impact of disclo-
sure do not satisfy the plaintiff’s burden of establishing
an adequate record to show why the records are
exempt.’’ (Citations omitted.)).
As the parties claiming the exemption, it was the
plaintiffs’ burden to ‘‘provide more than general or con-
clusory statements in support of [their] contention.’’
Director, Dept. of Information Technology v. Freedom
of Information Commission, supra, 274 Conn. 194. In
the absence of ‘‘an informed factual basis for [the plain-
tiffs’] decision’’; Wilson v. Freedom of Information
Commission, supra, 181 Conn. 341; we conclude that
the commission properly refused to ‘‘accept [the plain-
tiffs’] generalized and unsupported allegations relating
to documents claimed to be exempt from disclosure.’’
Id., 340.
Moreover, assuming arguendo that the requested
records exist and are preliminary drafts, the plaintiff’s
failure to review the records also is fatal to their asser-
tion that they conducted the required balancing test
under § 1-210 (b) (1). Both defendants rely on our
Supreme Court’s decision in Shew v. Freedom of Infor-
mation Commission, 245 Conn. 149, 151, 714 A.2d 664
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(1998), in which the commission ordered the town man-
ager of the town of Rocky Hill (Rocky Hill) ‘‘to provide
the defendant, Edward A. Peruta, with access to certain
interview reports created by [an] attorney . . . who
had been hired by [Rocky Hill] to [investigate] its police
chief, Philip Schnabel.’’ (Footnote omitted.)
In Shew, the trial court sustained the town manager’s
appeal from the commission’s order requiring disclo-
sure of the documents, finding ‘‘that the commission’s
conclusion that the documents in question were not
preliminary drafts or notes within the meaning of [the
exemption] was improper. The trial court remanded the
case to the commission to make findings . . . as to
whether the town manager properly determined that
the public interest in withholding the documents out-
weighed the public interest in their disclosure.’’ (Inter-
nal quotation marks omitted.) Id., 155. This court
affirmed the judgment of the trial court, and our
Supreme Court granted the commission’s petition for
certification to appeal. Id., 151. In that certified appeal,
the commission claimed, in relevant part, that this court
improperly determined that the documents were pre-
liminary drafts within the meaning of the predecessor
to § 1-210 (b) (1). Id., 163. Our Supreme Court disagreed,
concluding that the records at issue were preliminary
drafts within the meaning of the statute. Id., 165. Not-
withstanding that conclusion, the court held that ‘‘the
case must be remanded for a determination by the town
as to whether the public interest in withholding such
documents clearly outweighs the public interest in dis-
closure . . . . It is undisputed that the town manager
never reviewed the documents; consequently, he could
not have conducted the balancing test mandated by the
statute.’’ (Citation omitted; emphasis added; footnote
omitted; internal quotation marks omitted.) Id., 167.
In the present case, just as in Shew, there is no dispute
that the department never reviewed any responsive
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records. As a result, the plaintiffs could not have con-
ducted the statutorily mandated balancing test, which
requires that they determine whether the public interest
in withholding such documents clearly outweighs the
public interest in disclosure. It is axiomatic that the
plaintiffs must know what is in the records in order
to determine the public interest in disclosure, as that
interest necessarily depends on the nature of the infor-
mation contained in the records. The plaintiffs’ argu-
ments to the contrary are unavailing.
First, the plaintiffs argue that the trial court properly
‘‘found, based on the evidence presented to the commis-
sion, that Officer Chan and Deputy Chief Berry reason-
ably determined that they did not need to run the [data-
base commands] in order to conclude that the public
interest in preserving the integrity of the police reports
and in adhering to established protocols for data quality
control outweighed the public interest in disclosure.’’
The trial court, however, cannot simply substitute its
judgment for that of the commission, which reasonably
refused to accept the plaintiffs’ ‘‘generalized and unsup-
ported allegations relating to documents claimed to be
exempt from disclosure.’’ Wilson v. Freedom of Infor-
mation Commission, supra, 181 Conn. 340. Moreover,
by accepting the plaintiffs’ invocation of general con-
cerns to support its determination that it was unneces-
sary to review the requested records, the court effec-
tively expanded the limited exception to disclosure set
forth in § 1-210 (b) (1) into a broad categorical exemp-
tion for all preliminary drafts or notes, regardless of
any public interest in the disclosure of a specific docu-
ment. Not only does such reasoning contradict our
Supreme Court’s holding in Shew, but it also under-
mines the overarching ‘‘legislative policy of the [act]
favoring the open conduct of government and free pub-
lic access to government records,’’ which policy
requires that we ‘‘construe the provisions of the [act]
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Greenwich v. Freedom of Information Commission

to favor disclosure and to read narrowly that act’s
exceptions to disclosure.’’ (Internal quotation marks
omitted.) Commissioner of Energy Services & Public
Protection v. Freedom of Information Commission,
330 Conn. 372, 383, 194 A.3d 759 (2018). Mindful of
that policy and consistent with our Supreme Court’s
decision in Shew v. Freedom of Information Commis-
sion, supra, 245 Conn. 167, we conclude that § 1-210
(b) (1) requires an agency to conduct the public interest
balancing test on a case-by-case basis after having
reviewed the requested records. Put simply, we are not
persuaded that the department’s generalized interest in
preserving the integrity of law enforcement records, as
opposed to some particularized interest unique to a
specific record, will in every instance clearly outweigh
the public interest in disclosure.
Second, the plaintiffs argue that the request at issue
in the present case is fundamentally different from the
request in Shew because the request in Shew did not
require that Rocky Hill ‘‘run a noncommercially avail-
able and untested computer program through [its] com-
puter system to produce the documents.’’ According to
the plaintiffs, ‘‘[t]he commission erroneously decided
that the plaintiffs would need to run the [database com-
mands in] order to make a determination regarding the
public interest’’ because ‘‘there is no court precedent
that obligates a public agency to run unlicensed soft-
ware provided by an individual to comply with a free-
dom of information request.’’ We are not persuaded.
Contrary to the plaintiffs’ assertion, our Supreme
Court has held that the act requires an agency to con-
duct the type of search requested by Braxton. Braxton
requested information stored on the department’s com-
puter database, provided the department with the data-
base commands that the department needed to retrieve
the requested records, and, in accordance with General
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Statutes § 1-212 (b),6 agreed to pay the costs associated
with the request. Accordingly, her request is governed
by General Statutes § 1-211 (a), which provides that
‘‘[a]ny public agency which maintains public records in
a computer storage system shall provide, to any person
making a request pursuant to the Freedom of Informa-
tion Act, a copy of any nonexempt data contained in
such records, properly identified, on paper, disk, tape
or any other electronic storage device or medium
requested by the person, including an electronic copy
sent to the electronic mail address of the person making
such request, if the agency can reasonably make any
such copy or have any such copy made. Except as
otherwise provided by state statute, the cost for provid-
ing a copy of such data shall be in accordance with the
provisions of section 1-212.’’
Our Supreme Court previously has construed § 1-211
(a) in Hartford Courant Co. v. Freedom of Information
Commission, 261 Conn. 86, 801 A.2d 759 (2002). In
that case, the court reasoned that ‘‘[t]he flexibility and
6
General Statutes § 1-212 (b) provides in relevant part: ‘‘The fee for any
copy provided in accordance with subsection (a) of section 1-211 shall not
exceed the cost thereof to the public agency. In determining such costs for
a copy . . . an agency may include only: (1) An amount equal to the hourly
salary attributed to all agency employees engaged in providing the requested
computer-stored public record, including their time performing the format-
ting or programming functions necessary to provide the copy as requested,
but not including search or retrieval costs except as provided in subdivision
(4) of this subsection; (2) An amount equal to the cost to the agency of
engaging an outside professional electronic copying service to provide such
copying services, if such service is necessary to provide the copying as
requested; (3) The actual cost of the storage devices or media provided to
the person making the request in complying with such request; and (4) The
computer time charges incurred by the agency in providing the requested
computer-stored public record where another agency or contractor provides
the agency with computer storage and retrieval services. . . . The Depart-
ment of Administrative Services shall provide guidelines to agencies regard-
ing the calculation of the fees charged for copies of computer-stored public
records to ensure that such fees are reasonable and consistent among agen-
cies.’’
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breadth of this statute is . . . illustrated by the lan-
guage providing that a copy of such data shall be pro-
vided ‘on paper, disk, tape or any other electronic stor-
age device or medium requested by the person . . . .’ ’’
Id., 93. ‘‘There is no indication in the language of § 1-211
that the scope of that statute is restricted to document
formats currently in existence. Indeed, such a conclu-
sion is belied by the fee provisions contained in § 1-
212 (b), which permits an agency to include in its fee
for a request pursuant to § 1-211 (a) ‘[a]n amount equal
to the hourly salary attributed to all agency employees
engaged in providing the requested computer-stored
public record, including their time performing the for-
matting or programming functions necessary to pro-
vide the copy as requested’ . . . or ‘[a]n amount equal
to the cost to the agency of engaging an outside profes-
sional electronic copying service to provide such copy-
ing services, if such service is necessary to provide
the copying as requested. . . .’ ’’ Id. ‘‘Section 1-212 (b)
contemplates that an agency may be required to per-
form formatting or programming functions, or that the
agency may contract with an outside entity to perform
such functions, in order to comply with requests pursu-
ant to the act.
***
‘‘It is thus clear that the legislature envisioned . . .
a situation in which an agency cannot comply with a
request for information because it does not have the
technological capability to separate exempt from non-
exempt data. The legislative history of §§ 1-211 (a) and
1-212 (b) unequivocally indicates that such a request
does not fall outside the scope of the act. Rather, pursu-
ant to the act, the disclosing agency must comply with
such a request either by developing a program or con-
tracting with an outside entity to develop a program,
provided that the requesting party is willing to bear
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the attendant costs.’’ (Citations omitted; emphasis in
original.) Id., 93–95.

Our Supreme Court found further support for its con-
clusion in its ‘‘interpretation of the act in Maher v.
Freedom of Information Commission, 192 Conn. 310,
472 A.2d 321 (1984). In Maher, the defendant newspa-
per, pursuant to the act, requested from the plaintiff
[D]epartment of [I]ncome [M]aintenance [(agency)] cer-
tain information regarding drugs prescribed by physi-
cians pursuant to the [M]edicaid program. . . . The
commission ordered the disclosure of the information
requested by the [newspaper], and the trial court
affirmed the decision of the commission. . . . In [our
Supreme] [C]ourt, the [agency] argued that the act did
not require disclosure of the information because,
although the [agency] was in possession of the informa-
tion requested, a new computer program would have
to be produced to enable the [agency] to comply with
the [newspaper’s] request. . . .
‘‘The court in Maher rejected that argument as being
inconsistent with the statutory predecessor of § 1-211
(a) then in effect, General Statutes [(Rev. to 1979)] § 1-
19a.7 . . . After noting that this argument was incon-
sistent with the broad language of that statute, the court
stated: ‘Where, as here, the information sought is pres-
ently stored in the agency’s data base, and the cost of
the new program is to be borne by the person seeking
the information, an order compelling production of
computer tapes is within the powers statutorily con-
ferred upon the [commission].’ ’’ (Citations omitted;
emphasis omitted; footnote in original.) Hartford
7
‘‘At the time of the request at issue in Maher, General Statutes (Rev. to
1979) § 1-19a provided: ‘Any public agency which maintains its records in
a computer storage system shall provide a printout of any data properly
identified.’ ’’ Hartford Courant Co. v. Freedom of Information Commission,
supra, 261 Conn. 95 n.7.
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Courant Co. v. Freedom of Information Commission,
supra, 261 Conn. 95–96.
The present case is analogous to both Hartford
Courant Co. and Maher. As in those cases, the plaintiffs
may be in possession of records that are responsive
to Braxton’s request. Although the plaintiffs are not
required to utilize the precise method provided by Brax-
ton, they must comply with her request ‘‘either by devel-
oping a program or contracting with an outside entity
to develop a program, provided that [Braxton] is willing
to bear the attendant costs.’’ Id., 95. Consequently, the
alleged safety concerns expressed by the department
provide no basis to distinguish the present case from
Shew, which requires that they review the requested
records in order to conduct the public interest balancing
test under § 1-210 (b) (1).
In short, our Supreme Court has squarely addressed
an agency’s obligation to review the records that it
claims are exempt from disclosure because the public
interest in withholding the records clearly outweighs
the public interest in disclosing them. Because it is
undisputed in the present case that the plaintiffs have
not searched for or reviewed any responsive records,
the commission properly determined that the plaintiffs
failed to prove that the requested records are exempt
from disclosure pursuant to § 1-210 (b) (1) on the basis
of that balancing test.
As to the remedy, however, we conclude that the
commission’s order directing the plaintiffs to retrieve
the requested records and to disclose them to Braxton
‘‘free of charge’’ constitutes an abuse of its discretion
in two respects. First, the plaintiffs have not yet
reviewed the requested records to determine whether
those records are exempt from disclosure under the act.
In the absence of any review of the requested records,
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which are part of a sexual assault investigation, requir-
ing the plaintiffs to disclose those records could result
in the disclosure of otherwise exempt information.8 We
also note that the commission specifically found that,
‘‘prior to receiving the database commands . . . the
[plaintiffs] had no knowledge of such commands, were
unaware that such commands could be used to produce
the [RTF file] and did not have a staff member trained
to execute such commands.’’ It was only as of the date
of the initial hearing before the commission, when the
plaintiffs ‘‘had information, in the form of Wezenski’s
affidavit . . . that a file showing additions and dele-
tions 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 . . . .’’ Given the nature of the
requested records, and in light of the plaintiff’s lack of
knowledge as to their existence, the commission’s order
requiring the plaintiffs to disclose unreviewed public
records is unreasonable. Instead, the appropriate rem-
edy in the present case is to have the plaintiffs conduct
the search for the requested records and review any
responsive records to determine whether any of the
material is exempt from disclosure under the act. See,
e.g., Pictometry International Corp. v. Freedom of
Information Commission, 307 Conn. 648, 666, 59 A.3d
172 (2013) (concluding that ‘‘commission abused its
discretion by ordering the [agency] to provide copies
of the photographic images stripped of the associated
metadata to [the complainant] without first providing
the [agencies] with an opportunity to determine
whether their disclosure would pose a safety risk [under
§ 1-210 (b) (19)]’’).
Second, requiring that the plaintiffs bear the cost
of locating and producing the requested records when
8
During oral argument before this court, counsel for the commission
acknowledged that this court’s concern about the disclosure of otherwise
exempt information was ‘‘well taken.’’
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Braxton, pursuant to § 1-212 (b), agreed to pay those
costs, also constitutes an abuse of the commission’s
discretion.9 Because the existence of the requested
records was confirmed only after Braxton filed her com-
plaint with the commission, an order that contradicts
the express terms of § 1-212 (b), thereby penalizing the
plaintiffs, is unwarranted.
II
The plaintiffs contend, as an alternative ground for
affirming the judgment of the trial court, that the com-
mission improperly determined that the requested
records are not exempt pursuant to § 1-210 (b) (20).
We disagree.
Section 1-210 (b) (20) provides that ‘‘[n]othing in the
Freedom of Information Act shall be construed to
require disclosure of . . . [r]ecords of standards, pro-
cedures, processes, software and codes, not otherwise
available to the public, the disclosure of which would
compromise the security or integrity of an information
technology system . . . .’’
The commission found that, ‘‘because the requested
records are not ‘standards, procedures, processes, soft-
ware or codes’ but rather, are records that may be
produced upon execution of certain database com-
mands, it is found that such exemption is not applicable
to the requested records.’’ Likewise, the trial court con-
cluded that § 1-210 (b) (20) did not apply because the
requested records are not standards, procedures, pro-
cesses, software and codes.
On appeal, the plaintiffs clarify that ‘‘[t]he argument
is not that the records themselves constitute software
9
During oral argument before this court, although Braxton argued that
requiring the plaintiffs to produce the records free of charge was within
the commission’s authority, she acknowledged that her client remains willing
to pay the costs associated with retrieving and producing the requested
records if ordered to do so.
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and codes. The plaintiffs’ concern is that production
of preliminary police reports requires possession of
software and codes by the public, or person(s) requesting
the documents. These software or codes would clearly
reveal information about the nature and qualities of
software and codes used by the [department].’’ According
to the plaintiffs, the trial court and the commission
failed to recognize that ‘‘[h]ow computers respond to
[database commands] will, necessarily, reveal informa-
tion about the codes and software on that computer.
. . . The execution of data commands and studying
what is produced, whether it be the preliminary drafts
sought or error messages, will reveal information about
software and codes which the plaintiffs seek to pro-
tect.’’ We are not persuaded.
The plaintiffs failed to present any evidence before
the commission to substantiate their alleged safety con-
cern involving the inadvertent disclosure of ‘‘informa-
tion about software and codes which [they] seek to
protect.’’ Indeed, neither of the plaintiffs’ witnesses
before the commission was qualified to testify about
the ramifications of running the database commands,
as Officer Chan testified that he ‘‘wouldn’t even know
what to do with’’ the database commands, and Deputy
Chief Berry acknowledged that he is ‘‘not a computer
expert’’ and that the department does ‘‘not have . . .
the ability to do [that] type of . . . programming.’’ In
contrast, Wezenski, who wrote the relevant computer
code, testified only that running the database com-
mands would produce the data sought. Notably absent
from Wezenski’s testimony is any trepidation about run-
ning the commands or any indication that the informa-
tion produced by doing so would allow Braxton, or
anyone else, access to any of the department’s software
or codes.
Our Supreme Court’s decision in Director, Dept. of
Information Technology v. Freedom of Information
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Commission, supra, 274 Conn. 195–96, is instructive.
In that case, the complainant ‘‘submitted a written
request to the town’s board of estimate and taxation,
asking for a copy of all [geographic information system
(GIS)] data concerning orthophotography, arc info cov-
erages, structured query language server databases, and
all documentation created to support and define cover-
ages for the arc info data set.’’ Id., 182. The director
of the town’s department of information technology
(director) denied the complainant’s request, claiming
that the data was exempt from disclosure pursuant to,
inter alia, § 1-210 (b) (20). Id., 182–83. The complainant
appealed to the commission, which found that the infor-
mation was not exempt because it was not ‘‘the type
of information that would pose a threat to the security
of the town’s information technology system within the
meaning of [the statute].’’ Id., 183. The trial court dis-
missed the director’s administrative appeal, concluding
that the director ‘‘had failed to provide any specific
evidence that would demonstrate that disclosure of the
requested data would compromise the security or integ-
rity of the town’s information technology system.’’
Id., 183–84.
The director appealed to this court, and our Supreme
Court transferred the appeal to itself. Id., 184. Before
our Supreme Court, the director claimed that ‘‘the trial
court improperly found that the plaintiff did not meet
his burden of proof that the records were exempt under
§ 1-210 (b) (20).’’ Id., 195. In rejecting that claim, our
Supreme Court noted that ‘‘the [director] did not pres-
ent any specific evidence to demonstrate how the dis-
closure of the requested GIS data would compromise
the overall security of the town’s information technol-
ogy system. The [director] testified that he was con-
cerned about the vulnerability of the town’s network
to a security breach should the network become avail-
able to the public. In support of this concern, the [direc-
tor] stated that computer firewalls are not foolproof,
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and that the firewalls of ‘[m]any high security agencies’
had been breached. The [director], however, did not
provide specific examples of such security breaches,
or evidence that any such breaches had been caused
by the disclosure of GIS data.’’ Id., 195–96. Given that
evidentiary lacunae, our Supreme Court agreed with
the trial court and concluded that ‘‘the evidence pre-
sented in [that] case was insufficient to establish that
the requested GIS data were exempt from public disclo-
sure under the act.’’ Id., 196.
Here too, the plaintiffs assert a vague safety concern
based on revealing information about the way that the
NexGen database operates, but they failed to present
any evidence as to specific software or codes that would
be revealed by disclosure of the requested records. Con-
sequently, we cannot conclude that the plaintiffs satis-
fied their burden of proving that the requested records
are exempt from disclosure under § 1-210 (b) (20).
The plaintiffs’ position also is untenable because, as
previously noted in part I of this opinion, §§ 1-211 (a)
and 1-212 (b) address this precise situation. That is,
when, as in the present case, ‘‘an agency cannot comply
with a request for information because it does not have
the technological capability,’’ the ‘‘agency must comply
with such a request either by developing a program or
contracting with an outside entity to develop a program,
provided that the requesting party is willing to bear the
attendant costs.’’ Hartford Courant Co. v. Freedom of
Information Commission, supra, 261 Conn. 94–95.
Accordingly, as provided in the act, the plaintiffs are
free to develop their own method of retrieving and
producing the requested records and, thus, can avoid
their concerns about potential disclosures regarding
their software or codes.
In sum, we conclude that the commission properly
found that the plaintiffs failed to meet their burden of
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proof with respect to the applicability of the exemptions
set forth in §§ 1-210 (b) (1) and 1-210 (b) (20). Nonethe-
less, we conclude that the commission abused its dis-
cretion in ordering the plaintiffs to retrieve the
requested records and provide them to Braxton ‘‘free
of charge’’ without affording the plaintiffs an opportu-
nity to review the records to determine whether any
of the information contained therein is exempt from
disclosure under the act. As a result, the matter must
be remanded for further proceedings before the com-
mission regarding Braxton’s request.
The judgment is reversed and the case is remanded
to the trial court with direction to remand the case to
the commission for further proceedings consistent with
this opinion.
In this opinion the other judges concurred.