Avon v. Freedom of Information Commission

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TOWN OF AVON ET AL. v. FREEDOM OF
INFORMATION COMMISSION ET AL.
(AC 44255)
Bright, C. J., and Prescott and Vertefeuille, Js.

Syllabus

The defendant G appealed from the judgment of the trial court sustaining
in part the administrative appeal filed by the municipal plaintiffs from
the final decision of the defendant Freedom of Information Commission.
The commission found that the plaintiffs violated the Freedom of Infor-
mation Act (§ 1-200 et seq.) by requiring G to sign an acknowledgement
form before releasing copies of public records he had requested, and
ordered that the plaintiffs shall not require the signing of such a form
as a condition precedent to the inspection or receipt of copies of public
records. The trial court affirmed the commission’s decision as to the
provision of copies, but reversed the commission’s order to the extent
that it applied to the inspection of original public records. On G’s appeal
to this court, held that this court lacked subject matter jurisdiction over
the appeal, as G was not aggrieved by the judgment of the trial court
as he failed to demonstrate a specific, personal, and legal interest in
the subject matter of the challenged decision; G claimed that the court
abused its discretion by holding that an agency may require requestors
to sign an acknowledgement form as a condition precedent to the inspec-
tion of original public records, but, based on the administrative record
and the representations of the parties, it was clear the only issue decided
by the commission involved the right to receive and inspect copies of
public records, and the only public records sought by G in this matter
were copies, such that the court’s statements regarding original public
records were merely dicta, and its judgment did not diminish any right
that the commission’s final decision afforded G.
Argued September 15, 2021—officially released January 25, 2022

Procedural History

Appeal from the decision of the named defendant
finding the plaintiffs in violation of the Freedom of
Information Act, brought to the Superior Court in the
judicial district of New Britain and tried to the court,
Cordani, J.; judgment reversing in part the decision,
from which the defendant João Godoy appealed to this
court. Appeal dismissed.
João Godoy, self-represented, the appellant (defen-
dant).
Matthew D. Reed, commission counsel, for the appel-
lee (named defendant).
Michael C. Harrington, for the appellees (plaintiffs).
Opinion

BRIGHT, C. J. The self-represented defendant, João
Godoy, appeals from the judgment of the trial court,
which he claims sustained in part the administrative
appeal filed by the plaintiffs, the town of Avon (town),
the Avon Police Department (department), and the
Avon Police Chief, from the final decision of the defen-
dant Freedom of Information Commission (commis-
sion). The commission found that the plaintiffs violated
the Freedom of Information Act (act), General Statutes
§ 1-200 et seq., by requiring Godoy to sign an acknowl-
edgment form before releasing copies of the public
records he had requested and ordered that the plaintiffs
shall not require the signing of such a form as a condi-
tion precedent to the inspection or receipt of copies of
public records. The court affirmed the commission’s
decision as to the provision of copies but reversed the
commission’s order ‘‘to the extent that’’ it applied to
the inspection of original public records. We conclude
that, because the only public records sought by Godoy
in the present case were copies, the court’s statements
regarding original public records are merely dicta, and,
consequently, Godoy is not aggrieved by the judgment.
Accordingly, we dismiss the appeal for lack of jurisdic-
tion.1
The following undisputed facts and procedural his-
tory are relevant to our resolution of this appeal. In
November, 2018, Godoy submitted three requests to
the plaintiffs under the act. On November 16, 2018, he
requested ‘‘copies of the police report from the investi-
gation’’ into ‘‘concerns about unregistered vehicles at
11 Columbus Circle.’’ On November 26, 2018, Godoy
requested to inspect ‘‘any and all documents regarding
employee [Lieutenant] Kelly [Walsh’s] application for
the position of police officer . . . .’’ Last, on November
29, 2018, Godoy requested to inspect ‘‘any and all docu-
ments regarding police matters . . . including but not
limited to police reports, or audio recording[s] of mat-
ters related to residents of 3 Columbus Circle . . . .’’
On November 20, 2018, the plaintiffs denied the
November 16, 2018 request on the ground that the case
was under investigation. On December 4, 2018, after
not receiving responses to his November 26 and 29
requests, Godoy filed an appeal to the commission,
alleging that the plaintiffs had violated the act by deny-
ing and failing to respond to his requests for records.
In a letter dated December 5, 2018, the plaintiffs
responded to Godoy’s November 16 and 29 requests.
The plaintiffs notified Godoy that the investigation con-
cerning 11 Columbus Circle was an open investigation
that would be closed in approximately sixty days and
told him to call Lieutenant Walsh after February 5, 2019,
to schedule a time to inspect those records. As to the
November 29, 2018 request, the plaintiffs informed him
that there were two case reports concerning 3 Colum-
bus Circle, one from 2015, which was available for
inspection, and one from 2018, which remained an open
investigation. As with the 11 Columbus Circle report,
the plaintiffs told Godoy that the 2018 investigation
would be closed in approximately sixty days and that
he should call Lieutenant Walsh after February 5, 2019,
to schedule a time to inspect the 2018 report.
On January 17, 2019, Godoy went to the department
to inspect Lieutenant Walsh’s personnel file, which he
had requested on November 26, 2018. While there,
Godoy signed an acknowledgment form at the depart-
ment’s request and inspected a redacted copy of the
file. Godoy noted on the acknowledgment form that he
reviewed only a few pages of the file due to the exten-
sive redactions. On March 4, 2019, Godoy returned to
the department to receive copies of the records con-
cerning 11 Columbus Circle, which he requested on
November 16, 2018. When Godoy arrived, Lieutenant
John Schmalberger asked him to sign an acknowledg-
ment form, but Godoy refused to do so. As a result,
Lieutenant Schmalberger refused to release the copies
to Godoy.
On March 6, 2019, the matter was heard by a hearing
officer. At the hearing, Godoy testified regarding the
March 4, 2019 incident at the department. He explained
that ‘‘when I got to the . . . [d]epartment, they
requested me to sign some kind of statement, and I
refused to sign that statement, and right after I refused
to sign the statement, the lieutenant who was taking
care of me for the inspection then said that the [depart-
ment] wasn’t ready to release those documents at the
time, and then I just [left] . . . . I think that . . . it is
clear to persons here . . . that you cannot put condi-
tions prior to the release of these public documents.’’
Lieutenant Schmalberger also testified regarding his
interaction with Godoy on March 4, explaining that
‘‘Godoy . . . asked if he could come view the docu-
ments . . . number 3—excuse me, number 11 Colum-
bus. . . . I did not know if he was just going to inspect,
or take a copy of, so I had prepared copies of the
[records] for his inspection, and for him to take, if he
wished to pay for them.’’ (Emphasis added.) After the
hearing, the plaintiffs submitted an affidavit from Lieu-
tenant Schmalberger dated June 10, 2019, stating that
all requested documents regarding 3 and 11 Columbus
Circle had been provided to Godoy on March 22, 2019
(11 Columbus Circle), and April 18, 2019 (3 Colum-
bus Circle).
The hearing officer issued a proposed final decision
on October 10, 2019. The hearing officer concluded, in
relevant part, that ‘‘there is no statutory provision
within the . . . [a]ct requiring a requester to sign an
acknowledgement form as a condition precedent to
inspecting or receiving copies of public records. It is
found that it was improper for the [plaintiffs] to require
[Godoy] to sign such form as a condition precedent to
inspecting or receiving copies of the requested records.
It is concluded therefore that the [plaintiffs] violated
[General Statutes] §§ 1-210 (a) and 1-212 (a) by failing
to provide the complainant with prompt access to all
requested records pertaining to 3 Columbus Circle and
11 Columbus Circle. Nevertheless, it is found that as
of April 18, 2019, all requested records regarding 3
Columbus Circle and 11 Columbus Circle . . . ha[ve]
been provided to [Godoy].’’2 (Emphasis added.)
On October 10, 2019, the commission held a meeting
to consider the proposed final decision pursuant to
General Statutes § 4-179.3 In their brief to the commis-
sion, the plaintiffs represented that, ‘‘[in] an effort to
maintain a record of what the [department] provides
to individuals who request copies of documents, the
department asks the individual to sign a receipt for the
documents provided. This practice ensures that there is
no dispute about what documents a person was given.’’
(Emphasis added.) At the meeting, the plaintiffs’ coun-
sel explained that the plaintiffs ‘‘had a practice of asking
individuals who received documents to sign a receipt
. . . so that there’s no further dispute of what is being
provided.’’ The plaintiffs asserted that the commission
should not deem this practice illegal or a violation of
the act simply because the act does not explicitly pro-
vide for such a practice.
One of the commissioners noted that the practice of
requiring requesters to sign an acknowledgment form
as a condition precedent to receiving documents ‘‘has
a chilling effect on getting documents’’ and suggested
that the commission add an order to the hearing offi-
cer’s report prohibiting such a practice. At the conclu-
sion of the meeting, the commission accepted the hear-
ing officer’s findings and agreed to amend the decision
to order that the plaintiffs ‘‘shall not require requesters
to sign a form as a condition precedent to the receipt
of public records.’’
The plaintiffs filed an administrative appeal in the
Superior Court pursuant to General Statutes § 4-183,4
challenging the commission’s final decision. In their
complaint, the plaintiffs alleged, inter alia, that the com-
mission erred in finding that they violated the act by
requiring Godoy to sign a receipt, and they requested
that the trial court modify the commission’s decision
by holding that the ‘‘plaintiffs did not violate [the] act
by requiring [Godoy] sign a receipt for the documents
being provided to him.’’ The plaintiffs claimed that
‘‘Godoy had previously signed for documents he had
requested from the department, but refused to do so
when asked to do so with respect to the 11 Columbus
Circle documents. As such, the documents were not
provided to him at that time.’’
Godoy did not participate in the appeal in the trial
court, but the commission filed an answer and a brief
in opposition to the plaintiffs’ appeal. In its brief, the
commission argued that ‘‘[t]he plaintiffs’ policy requir-
ing a requestor to sign an acknowledgment as a condi-
tion to the receipt of public records is a clear example
of a rule that is prohibited under [the act]. [Godoy’s]
rights under the . . . act were diminished when the
plaintiffs refused to release public records solely
because Godoy did not provide his signature on an
acknowledgment form.’’ Notably, in their briefs to the
court, neither the plaintiffs nor the commission raised
an argument regarding access to original public records.
On August 6, 2020, after a hearing, the court issued
a memorandum of decision sustaining in part the plain-
tiffs’ appeal. The court noted that ‘‘Godoy requested
copies of the records concerning 11 Columbus Circle
but only to inspect the records concerning Lieutenant
Walsh and 3 Columbus Circle. . . . The plaintiffs here
required Godoy to sign a receipt both for the inspection
of records and for the receipt of copies thereof.’’ (Cita-
tion omitted.) The court held that ‘‘the commission’s
order as it applies to prohibiting the signing of a receipt
as a precondition to receiving copies is appropriate,
however to the extent that the commission’s order pro-
hibits the signing of a receipt as a precondition to the
inspection of original public records, the court finds
that the order was clear error.’’
On August 18, 2020, Godoy filed a motion for recon-
sideration, claiming that the court’s decision regarding
the inspection of original records conflicts with the act.
In the motion, Godoy noted that there was no concern
regarding the safeguarding of public records in the pres-
ent case, noting that ‘‘the chances that Godoy was walk-
ing away alive carrying stolen redacted COPIES of pub-
lic documents worth about twenty bucks without
paying, or even destroying, losing, or misplacing said
copies were simply: NONEXISTENT. However, when
Godoy refused to sign a ‘simple receipt,’ the plaintiffs
refused to allow Godoy to have access to redacted
COPIES of public documents . . . .’’ (Emphasis in orig-
inal.) The court denied the motion, and Godoy filed the
present appeal.
On appeal, Godoy claims that the court abused its
discretion by holding that an agency may require
requestors to sign an acknowledgment form as a condi-
tion precedent to the inspection of original public
records. In his principal brief, Godoy represented that
he went to the department on January 17, 2019, to
inspect copies of Lieutenant Walsh’s personnel file and
signed an acknowledgment form. He emphasized that
the department provided him ‘‘an opportunity to inspect
not the original, but redacted copies of said public
documents.’’ (Emphasis in original.) Godoy also stated
that, on March 4, 2019, he ‘‘went to the [department]
. . . not to inspect, but to receive copies of public
records regarding 11 Columbus Circle . . . .’’5 (Empha-
sis in original.)
Notably, at oral argument before this court, the par-
ties appeared to agree that the issue before the commis-
sion involved only the right to obtain copies of public
records. Indeed, counsel for the commission argued to
this court that the commission’s order related to copies
of public records only and that the issue regarding the
right to inspect original public records never was pre-
sented to or considered by the commission. When this
court asked Godoy if he wanted to respond to the argu-
ments of the plaintiffs and the commission, he stated
that he had nothing to add.
Given the representations of the parties at oral argu-
ment, we ordered the parties to file supplemental briefs
addressing whether this appeal should be dismissed for
lack of aggrievement in light of Godoy’s statement in
his principal brief that he was seeking only copies of
public records when he refused to sign an acknowledg-
ment form, and because the court affirmed the commis-
sion’s order prohibiting the plaintiffs from requiring
requestors to sign a receipt before releasing copies of
requested documents.
We begin with the relevant legal principles regarding
standing and aggrievement. In an administrative appeal,
‘‘[a]n aggrieved party may obtain a review of any final
judgment of the Superior Court . . . .’’ General Stat-
utes § 4-184; see also In re Allison G., 276 Conn. 146,
157, 883 A.2d 1226 (2005) (‘‘a requisite element of
appealability is that the party claiming error be
aggrieved by the decision of the trial court’’ (internal
quotation marks omitted)).
‘‘Aggrievement, in essence, is appellate standing.
. . . It is axiomatic that aggrievement is a basic require-
ment of standing, just as standing is a fundamental
requirement of jurisdiction. . . . There are two general
types of aggrievement, namely, classical and statutory;
either type will establish standing, and each has its own
unique features. . . . The test for determining [classi-
cal] aggrievement encompasses a well settled twofold
determination: first, the party claiming aggrievement
must demonstrate a specific personal and legal interest
in the subject matter of the decision, as distinguished
from a general interest shared by the community as a
whole; second, the party claiming aggrievement must
establish that this specific personal and legal interest
has been specially and injuriously affected by the deci-
sion.’’ (Citations omitted; internal quotation marks
omitted.) In re Ava W., 336 Conn. 545, 554–55, 248 A.3d
675 (2020).
‘‘Aggrievement is established if there is a possibility,
as distinguished from a certainty, that some legally pro-
tected interest . . . has been adversely affected.’’
(Internal quotation marks omitted.) Wilcox v. Webster
Ins., Inc., 294 Conn. 206, 215, 982 A.2d 1053 (2009).
In his supplemental brief, Godoy claims that his ‘‘spe-
cific, personal and legal interest in the subject matter
of the [court’s] decision is related to his own interest
in obtaining unconditional access to ‘public docu-
ments,’ as demanding Godoy . . . sign a receipt as a
condition precedent to the release of ‘public documents’
diminished and curtailed Godoy’s rights under the
[act].’’ (Emphasis in original.) He further argues that
he is aggrieved because the court ‘‘formulated a rule
that encompassed [fewer] rights than what the . . .
[commission’s] final decision granted, specially and
injuriously affecting Godoy’s interest in obtaining
unconditional access to ‘public documents.’ ’’ (Empha-
sis in original.) The plaintiffs also claim that Godoy
is aggrieved, arguing that, because ‘‘the trial court’s
decision will impact future requests to inspect docu-
ments, [Godoy] was aggrieved for purposes of his
appeal.’’
The commission, however, argues that, ‘‘[w]hile one
could argue that the language of the trial court could
possibly diminish or curtail rights granted under the
act in the future, such speculation is not enough to
constitute aggrievement. . . . Since the commission’s
order did not specifically address the signing of a receipt
as a precondition to the inspection of original records,
the court’s order does not have a bearing on [Godoy’s]
rights in this regard. Should such a situation . . . occur
in the future, the requesting party will be free to appeal
that action to the commission. The commission will
then have the opportunity to hear testimony and accept
evidence on the record with regard to the inspection
of original public records.’’ (Citation omitted; footnote
omitted; internal quotation marks omitted.) We agree
with the commission.
Based on the administrative record and the represen-
tations of the parties, it is clear that the only issue
decided by the commission involved the right to receive
and inspect copies of public records. As previously
noted, Godoy represents that he was required to sign
an acknowledgment form on two different occasions.
First, on January 17, 2019, when he sought ‘‘to inspect
not the original, but redacted copies’’ of Lieutenant
Walsh’s personnel file, and then again, on March 4, 2019,
when he sought ‘‘not to inspect, but to receive copies
of public records regarding 11 Columbus Circle . . . .’’
(Emphasis in original.) In its final decision, the commis-
sion found ‘‘that it was improper for the [plaintiffs] to
require [Godoy] to sign [an acknowledgment] form as
a condition precedent to inspecting or receiving copies
of the requested records.’’ (Emphasis added.) Although
the commission’s prospective order prohibiting the
plaintiffs from requiring ‘‘requesters to sign a form as
a condition precedent to the receipt of public records’’
does not include the word ‘‘copies,’’ the commission’s
finding that prompted the order explicitly referred to
‘‘copies of the requested records.’’ (Emphasis added.)
Moreover, at oral argument before this court, counsel
for the commission emphasized that the commission’s
‘‘order had nothing to do with the inspection of original
records. . . . It was never an issue before the commis-
sion.’’
Because Godoy sought only copies of public records
in the present case, the commission did not address
the issue regarding inspection of original public records
in its final decision, and, therefore, the court’s discus-
sion and conclusion regarding that issue is merely dicta.
See Laurel Beach Assn. v. Zoning Board of Appeals,
66 Conn. App. 640, 648, 785 A.2d 1169 (2001) (‘‘If an
issue has been determined, but the judgment is not
dependent upon the determination of the issue, the
parties may relitigate the issue in a subsequent action.
. . . Thus, statements by a court regarding a nonessen-
tial issue are treated as merely dicta.’’ (Internal quota-
tion marks omitted.)); see also Dortenzio v. Freedom
of Information Commission, 42 Conn. App. 402, 409,
679 A.2d 978 (1996) (noting that review of commission’s
decision is limited to issues raised and findings in
administrative record).
Godoy’s right to inspect original public records was
not at issue in the administrative appeal because he
sought only copies of public records, which was the
only issue addressed by the commission in its final
decision. Thus, because the court affirmed the commis-
sion’s order regarding the inspection or receipt of cop-
ies of public records, the court’s judgment did not
diminish any right that the commission’s final decision
afforded Godoy. See, e.g., In re Allison G., supra, 276
Conn. 158 (‘‘As a general rule, a party that prevails in
the trial court is not aggrieved. . . . Moreover, [a] party
cannot be aggrieved by a decision that grants the very
relief sought. . . . Such a party cannot establish that
a specific personal and legal interest has been specially
and injuriously affected by the decision. . . . [A] pre-
vailing party . . . can be aggrieved [however] if the
relief awarded to that party falls short of the relief
sought.’’ (Citations omitted; internal quotation marks
omitted.)). In fact, the language used by the court in
its memorandum of decision reflects that the court was
uncertain if it needed to reach any issue regarding the
inspection of original documents. After reviewing the
different policy concerns between producing original
documents and producing copies, the court concluded
that the commission’s order prohibiting the signing of
a receipt to receive copies was ‘‘appropriate.’’ The court
further concluded, however, that ‘‘the commission’s
order to the extent it prohibits requiring the signing of
a receipt as a precondition to the inspection of original
public records was clear error . . . .’’ (Emphasis
added.) Because we conclude that the commission’s
order did not extend to original public records, the
court’s conditional holding as to such documents is
dictum. In other words, Godoy’s interest in uncondi-
tional access to the public records he sought was unaf-
fected by the court’s decision because the court
affirmed the commission’s decision regarding the only
documents at issue before the commission—copies of
public records. Consequently, we conclude that Godoy
has failed to demonstrate a specific, personal, and legal
interest in the subject matter of the challenged deci-
sion.
Finally, the plaintiffs and Godoy suggest that Godoy
is aggrieved by the judgment because, at some point in
the future, he may be required to sign an acknowledg-
ment form as a condition precedent to inspecting origi-
nal public records. In light of our conclusion that the
court’s discussion and conclusion regarding the inspec-
tion of original public records is dicta, if the plaintiffs
require Godoy to sign an acknowledgment form at some
point in the future, the source of his aggrievement
would not be the court’s decision in this administrative
appeal. Instead, Godoy would be aggrieved by having
to sign such a form in connection with that possible
future request. At that point, if Godoy appealed, the
commission would have the opportunity to consider
the distinct issue regarding the inspection of original
public records, and, if he is aggrieved by the commis-
sion’s final decision, Godoy would have standing to
appeal to the Superior Court. In the present case, how-
ever, Godoy sought to inspect and receive only copies
of the public records at issue and, therefore, he is not
aggrieved by the court’s dicta regarding the inspection
of original public records. Accordingly, we lack subject
matter jurisdiction over the appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
In their appellees’ brief, the plaintiffs claim that the court’s decision
should be reversed with respect to their alleged right to require that the
requesting party sign a receipt as a condition precedent to the inspection
or receipt of copies of public records. We decline to address this claim
because the plaintiffs failed to file an appeal or a cross appeal challenging the
court’s judgment affirming the decision of the commission that a signature
cannot be required for the inspection or receipt of copies of public records.
See Practice Book § 61-8 (appellees aggrieved by judgment from which
appellant has appealed may file cross appeal within ten days after filing of
appeal); see also Gagne v. Vaccaro, 311 Conn. 649, 661, 90 A.3d 196 (2014)
(declining to address defendant’s claims attacking judgment because defen-
dant failed to file cross appeal pursuant to Practice Book § 61-8).
2
General Statutes § 1-210 provides in relevant part: ‘‘(a) Except as other-
wise provided by any federal law or state statute, all records maintained
or kept on file by any public agency, whether or not such records are
required by any law or by any rule or regulation, shall be public records
and every person shall have the right to (1) inspect such records promptly
during regular office or business hours, (2) copy such records in accordance
with subsection (g) of section 1-212, or (3) receive a copy of such records
in accordance with section 1-212. Any agency rule or regulation, or part
thereof, that conflicts with the provisions of this subsection or diminishes or
curtails in any way the rights granted by this subsection shall be void. . . .’’
General Statutes § 1-212 provides in relevant part: ‘‘(a) Any person
applying in writing shall receive, promptly upon request, a plain, facsimile,
electronic or certified copy of any public record. The type of copy provided
shall be within the discretion of the public agency, except (1) the agency
shall provide a certified copy whenever requested, and (2) if the applicant
does not have access to a computer or facsimile machine, the public agency
shall not send the applicant an electronic or facsimile copy. . . .’’
3
General Statutes § 4-179 provides in relevant part: ‘‘(a) When, in an
agency proceeding, a majority of the members of the agency who are to
render the final decision have not heard the matter or read the record, the
decision, if adverse to a party, shall not be rendered until a proposed final
decision is served upon the parties, and an opportunity is afforded to each
party adversely affected to file exceptions and present briefs and oral argu-
ment to the members of the agency who are to render the final decision.
. . .’’
4
General Statutes § 4-183 (a) provides in relevant part: ‘‘A 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. . . .’’
5
Godoy’s briefs do not discuss either inspecting or receiving the records
related to 3 Columbus Circle, but the hearing officer found that those records
had been provided to Godoy.