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DOCKET NO. HHB-CV23-6079418-S : SUPERIOR COURT
:
CHIEF, POLICE DEPARTMENT, CITY OF : JUDICIAL DISTRICT
BRIDGEPORT; POLICE DEPARTMENT, : OF NEW BRITAIN
CITY OF BRIDGEPORT; AND CITY OF : AT NEW BRITAIN
BRIDGEPORT :
:
v. :
:
FREEDOM OF INFORMATION :
COMMISSION : JANUARY 11, 2024
PLAINTIFFS’ REPLY BRIEF
The Chief of Police of the Bridgeport Police Department, the Bridgeport Police
Department, and the City of Bridgeport (“the Plaintiffs”) respectfully submit the following
brief in response to the briefs filed by the Freedom of Information Commission (“the
FOIC”) and the Intervenor Johanna Fay (“the Intervenor”) in the above-captioned
matter. The Plaintiffs contend the FOIC’s Brief and the Intervenor’s Brief (Entry Nos.
119.00 and 118.00, “FOIC’s Brief” and “Intervenor’s Brief,” respectively) misinterpret the
applicable law, and misapply such law to the administrative record in Docket #FIC 2022-
0182, Johanna Fay v. Chief, Police Department, City of Bridgeport et al.
With respect to the FOIC’s Notice (Entry No. 121.00), concerning the denial of
the petition for certification to appeal the Appellate Court’s decision in Chief, Police
Department, City of Bridgeport et al v. Freedom of Information Commission (222
Conn.App. 17, 2023, “City of Bridgeport”) – which made various findings of fact which
overlap with the issues in this matter – while the Plaintiffs do not concede all of the
findings in City of Bridgeport, the Plaintiffs submit that the facts in the present case are
distinguishable such that there are still myriad procedural, legal, and factual errors
which warrant overturning the FOIC’s Final Decision. The Plaintiffs also emphasize that
1
“the procedure [of certification] is not the equivalent of an appeal…It follows that a
denial of certification does not necessarily indicate our approval either of the result
reached by the Appellate Division or of the opinion rendered by it.” State v. Cullum, 149
Conn. 728, 730 (1961). See also Potvin v. Lincoln Serv. and Equipment Co., 298 Conn.
620, 653 (2010) (“We have made it clear that a denial of a petition for certification to
appeal does not signify that this court approves of or affirms the decision or judgment of
the Appellate Court.”).
I. THE INTERVENOR’S NOTICE OF APPEAL FAILED TO ESTABLISH
THAT THE PLAINTIFFS VIOLATED THE FOI ACT.
The Intervenor argues that General Statutes §1-206(a) enables a requester to
appeal to the FOIC when they have not received a “response” in the form of production
of records within four business days of the request, citing Sedensky v. Freedom of
Information Commission in support of this contention. Intervenor’s Brief, 9-10 1. As such,
the Intervenor claims that her Notice of Appeal, in which alleged that she “did not
receive a response within four (4) business days, which is deemed a denial”,
legitimately pled a violation of the Freedom of Information Act (“the FOI Act”).
Administrative Record, Entry No.114.00, 3 (“Record.”). However, the Sedensky case
stands for the opposition proposition: the non-response contemplated by §1-206 is
failure to provide any response or acknowledgement of the request, not failure to
produce records in that timeframe. As a result, the Notice of Appeal does not plead a
violation of the FOI Act upon which it could have been sustained.
1 The Intervenor references a request for records filed prior to the March 23, 2022 request at issue.
Intervenor’s Brief at 2. Such request is not only outside the scope of the Final Decision issued by the
FOIC, but, as the Intervenor notes in her Notice of Appeal, “the deadline to appeal the earlier request had
passed.” Record, 3. Accordingly, such discussion is outside the scope of the present case.
2
Sedensky provides that the failure to respond in §1-206(a) – constituting a
constructive violation upon which an appeal to the FOIC may be predicated – is “no
immediate response, oral or written, from the public agency..” Sedensky v.
Freedom of Info. Comm’n, 2013 WL 6698055, 4 (2013) (emphasis added); see also
Plaintiffs’ Brief in Support of Administrative Appeal (Entry No. 116.00, “Plaintiffs’ Brief”),
10-1. Consequently, the Intervenor’s reliance on Sedensky is misplaced. Since the
parties agree that the Plaintiffs immediately acknowledged receipt of the request in
writing on the same day it was submitted, the Plaintiffs could not have constructively
denied the Intervenor’s request at the time of her appeal to the FOIC. See Record, 406.
Accordingly, the only violation alleged in the Intervenor’s Notice of Appeal is without
merit, and the FOIC’s failure to dismiss the appeal on this basis was in error.
Further, the FOIC has consistently found that the four day period set forth in §1-
206 does not mean that requesters are entitled to receive records within four days from
the date their request is received:
“It is well settled that the law does not require ‘immediate’ access to records upon
demand, but rather, permits a person the right to receive a copy of or inspect
public records ‘promptly.’…
Moreover, and as a corollary to the foregoing, it is well settled that the law does
not require a public agency to provide a copy, or to allow inspection of, public
records ‘within four business days’ of the request as alleged by the complainant.
‘Rather, §1-206, G.S…. simply provides a requester to file an appeal in the event
an agency fails to respond to the request. After four business days have elapsed,
if no response is received from an agency, then such non-response is deemed a
denial for purposes of triggering the requester’s right to file an appeal without
having to wait indefinitely for a response that may never be forthcoming.’” Noah
Snyder v. Donna Patchen, Assessor, City of Torrington et al, #FIC 2018-0117,
¶22-3 (2018) (internal citations and paragraph numbers omitted; emphasis
added).
3
See also Plaintiffs’ Brief at 12. If production of records within four business days
is not a right conferred by the FOI Act, non-production of records within that timeframe
cannot be a violation of the FOI Act upon which an appeal can be sustained. The record
in this case unambiguously establishes that the FOIC should have dismissed the
Intervenor’s Notice of Appeal for this reason.
II. THE FOIC ERRED IN CONSIDERING THE MERITS OF THE
INTERVENOR’S NOTICE OF APPEAL.
The FOIC contends that the Court’s findings in City of Bridgeport “foreclose” the
Plaintiffs argument that the Notice of Appeal should have been dismissed due to its
failure to plead a violation of the FOI Act. FOIC’s Brief at 9. On the contrary, City of
Bridgeport serves to highlight that the FOIC should have dismissed the Intervenor’s
appeal in this case.
City of Bridgeport held that “a denial of a request, either in fact or pursuant to §1-
206(a), is an essential fact that goes to the merits of a complaint before the
commission,” rather than to jurisdiction. City of Bridgeport v. Freedom of Info. Comm’n,
222 Conn.App. 41 (emphasis added). It follows that the hearing(s) would serve as a
procedural safeguard to iron out whether a complaint is meritless, premature, or
untimely, and therefore subject to dismissal. However, in the present case, the FOIC did
not evaluate these issues at the hearing, nor dismiss the Intervenor’s complaint. The
resulting Final Decision is in error because the FOIC failed to appreciate the
deficiencies of the Notice of Appeal and dismiss the matter.
The issue as to if and when a “denial” occurred dovetails with the Plaintiffs
argument that the four day period begins to run as of the last communication between
4
the parties, and as a result, the Intervenor’s Notice of Appeal was untimely. Plaintiffs’
Brief at 14. The FOIC and Intervenor counter that the four day period to calculate a
denial begins instead four days after such communication, rendering the Notice of
Appeal timely. FOIC’s Brief at 11; Intervenor’s Brief at 11. This interpretation of the
statutory timeframe is inconsistent with the FOIC’s finding in Anthony Santaniello v.
Commissioner, State of Connecticut, Department of Correction et al, Docket #FIC 2021-
0166. Further, §1-206(b) entitles requesters to appeal if they are denied a “right
conferred by the Freedom of Information Act;” if the FOIC consistently holds that the
FOI Act does not require a public agency to produce records within four business days
of a request, then there is no denial of a right afforded by the FOI Act upon which to
base an appeal, as the Intervenor contends here.
The facts and circumstances in this case demonstrate that it was unreasonable
for the FOIC to find that the Plaintiffs violated the FOI Act. Considering the uncontested
facts concerning the records sought – that they pertain to criminal records between
1976 and 1987, including a murder investigation (Record, 406) – coupled with the
FOIC’s holdings that merely taking the time to process a request does not automatically
constitute a violation of the FOI Act 2, the FOIC’s finding that the Plaintiffs violated the
FOI Act at the time of the Notice of Appeal rather than dismissing it outright constitutes
procedural error.
2 See Mark Widomski v. Superintendent, Shelton Pub. Schools et al, #FIC 2010-576, ¶13, 17 (2010)
(“[T]he finance director reasonably believed that the records sought by the complainant would need to be
redacted…[T]he finance director reasonably believed that some time and personnel would need to be
devoted to compliance with the complainant’s request, and that it could not be done immediately…It is
concluded that the respondents did not violate the FOI Act by not permitting the complainant to inspect
the records he requested…”).
5
III. THE FOIC ERRED IN CONSIDERING ALLEGATIONS NOT FAIRLY
RAISED IN THE INTERVENOR’S NOTICE OF APPEAL.
The FOIC argues that the holding in City of Bridgeport that the requester had “no
obligation to amend his complaint to allege that the plaintiffs violated the [A]ct by
redacting portions of the responsive records,” has “foreclosed” the Plaintiffs’ argument in
this case that the FOIC’s consideration of the claims of exemption was improper. FOIC’s
Brief at 16-7. However, the Plaintiffs submit not only that the Notice of Appeal filed by
the Intervenor is distinguishable, but that the mandate for administrative hearings to
comport with principles of fundamental fairness necessitated that the FOIC preclude
consideration of allegations outside the Notice of Appeal in this particular case.
In City of Bridgeport, the Notice of Appeal filed by the requester was remarkably
broad, alleging that “the plaintiffs had not complied with his ‘freedom of information
request…’ and requested ‘that a civil penalty be applied due to noncompliance [with] the
above-dated request.” City of Bridgeport at 24. By contrast, the Intervenor in this case
pled a specific, discrete violation of the FOI Act: that she “did not receive a response
within four (4) business days, which is deemed a denial under Conn. Gen. Stat. §1-
206(a).” Record, 3. 3 While the Court in City of Bridgeport interpreted that complainant’s
Notice of Appeal to be broad enough “such that a claim [that the City improperly
redacted the records was] encompassed within the allegation that the plaintiffs failed to
comply with his request for all responsive records,” in the present case, the Intervenor’s
3 While, like in City of Bridgeport, the FOIC held a continued hearing, such an opportunity is not
guaranteed in all cases by virtue of the FOIC’s controlling regulations, which require that the FOIC must
“decide each such case within sixty (60) days after the conclusion of the hearing therein, but in no event
later than one (1) year after the filing of the complaint.” See Regulations of Connecticut State Agencies
§1-21j-29(a).
6
complaint pleads such a specific violation that it cannot reasonably be interpreted to
encompass unrelated claims of violations after the fact. City of Bridgeport at 66-7.
While the FOIC read the Notice of Appeal to contest redactions by implication
(see Record at 408), the Court has held “essential allegations may not be supplied by
conjecture or remote implication...” Oxford House at Yale v. Gilligan, 125 Conn.App.
464, 470 (2010). “[A] plaintiff may not allege one cause of action and recover upon
another.” Gleason v. Durden, 211 Conn.App. 416, 430 (2022). While administrative
matters are “informal and are conducted without regard to the strict rules of
evidence…they cannot be so conducted as to violate the fundamental rules of natural
justice…[D]ue process of law requires that the parties involved have an opportunity to
know the facts on which the commission is asked to act…In short, the conduct of
the hearing must be fundamentally fair.” Megin v. Zoning Board of Appeals of Town of
Milford, 106 Conn.App. 602, 608 (2008) (internal citations, quotations and punctuation
omitted; emphasis added). Requiring a party to inform the other of claims against it will
allow them to “prepare intelligently for the hearing.” Grimes v. Conservation Comm’n of
Town of Litchfield, 243 Conn. 266, 274 (1997) (internal citations and quotations
omitted). As Commissioner Streeter stated at the regular meeting, the marked departure
of the claims at the hearing from those pled in the Notice of Appeal can be fairly
described as “a case of moving the goal post,” which does not comport with the
principles of fundamental fairness. Record, 389. The scope of the dispute in this case
should therefore have been limited to the issues raised in the Notice of Appeal.
Even if the FOIC properly considered exemptions in this case, the inconsistent
application of this procedure renders the scope of hearings unpredictable. See Plaintiffs’
7
Brief at 19. Decision making which is “characterized by unpredictable or impulsive
behavior” is fundamentally arbitrary and capricious. Condominium Ass’n, Inc. v. Jones,
2010 WL 654768, 15 (2010). The facts of this case – including the age and nature of the
records requested, the complexity of the review for exempt information, and the
eventual production of records – clearly demonstrated to the FOIC that the allegations
pled in the Notice of Appeal were unfounded, and that the ultimate production of records
by the Plaintiffs obviated the need for further consideration of the matter. The FOIC’s
procedural consideration to the contrary evidences an arbitrary and capricious abuse of
discretion.
IV. THE PLAINTIFFS MET THEIR EVIDENTIARY BURDEN AS TO
CLAIMED EXEMPTIONS TO DISCLOSURE.
The Plaintiffs contend that the evidence in the record, coupled with the character
of the responsive records themselves, proves beyond a preponderance of the evidence
the applicability of the exemptions to disclosure as claimed. Consequently, the FOIC’s
findings to the contrary were against the substantial evidence in the administrative
record. 4
Both the FOIC and Intervenor rely on City of Bridgeport in support of their claims
that the Plaintiffs did not meet their evidentiary burden as to the exemptions at issue.
FOIC’s Brief at 20; Intervenor’s Brief at 12. While the Plaintiffs do not concede that the
evidence in City of Bridgeport was insufficient to prove the applicability of the
exemptions in that case, the nature of the evidence in the present case is notably
distinguishable: the records in this case are decades old, and the claims of exemption
4The Plaintiffs are not contesting the FOIC’s finding that certain material was exempt from disclosure
pursuant to §1-210(b)(3)(B), as claimed. See Record, 414-5.
8
are informed not merely by “conclusory statements” as the FOIC and Intervenor claim,
but by meticulous review, outside research, and comparison of materials produced by
the Intervenor herself. By way of example, the Plaintiffs’ claims that witnesses were not
otherwise known to the public, pursuant to §1-210(b)(3)(A), were informed not just
through review and consideration of the contents of the investigatory records
themselves, but also of publicly available materials concerning the underlying criminal
matter, and a list of known witnesses provided by the Intervenor. See Record at 101.
Additionally, the language of §1-210(b)(3)(A) requires proving that, if unknown
witness information was disclosed, the witness’s “safety would be endangered or [ ]
would be subject to threat or intimidation…” (emphasis added). The statutory language
does not require proving the risk of harm is an absolute certainty; rather, it contemplates
that the exemption can be satisfied through showing that there is a likelihood/possibility
that harm would occur. 5 Despite the Intervenor’s attempts to distance the risk of harm to
witnesses because her client’s case was in “post-trial,” proceedings, her brief
acknowledges the request was made in furtherance of a habeas corpus petition, which
implicates many of the same risks to intimidation of witnesses as in pending criminal
trials. See Record at 115; Intervenor’s Brief at 14. Further, the testimony in the record –
including references to the contents of the records, that an individual on scene was also
shot, and that previous acts of violence against witnesses have occurred in the City of
Bridgeport – provides an articulable basis demonstrating the exemption is applicable as
claimed. See Record, 101-4.
5 “Subject To…1: affected by or possibly affected by (something) 2: likely to do, have, or suffer from.”
(emphasis added). “Subject to.” Merriam-Webster.com Dictionary, Merriam-Webster,
https://www.merriam-webster.com/dictionary/subject%20to. Accessed 10 Jan. 2024.
9
The FOIC and Intervenor’s implication that a claimed exemption be proved with
absolute certainty, from an author/contributor of the record, is not only inconsistent with
the language of the FOI Act, but would result in municipalities being functionally unable
to successfully claim exemptions, particularly in the case of older/archived records. The
FOIC’s contention that an individual who reviews the contents of the record and
conducts outside research cannot credibly determine whether the record falls within the
scope of the exemption is impractical, and unsupported by the FOI Act.
V. CONCLUSION
For the foregoing reasons, the record evidences procedural, legal, and factual
errors which justify reversal of the Final Decision in Docket #FIC 2022-0182, Johanna
Fay v. Chief, Police Department, City of Bridgeport et al. Therefore, the Plaintiffs request
that this Court sustain their appeal, and reverse the Final Decision and all orders
contained therein, pursuant to General Statutes §4-183(k).
CHIEF, POLICE DEPARTMENT, CITY OF
BRIDGEPORT; POLICE DEPARTMENT, CITY
OF BRIDGEPORT; AND CITY OF
BRIDGEPORT
BY: __________/s/___________________
Dina A. Scalo
OFFICE OF THE CITY ATTORNEY
999 Broad Street, 2nd Floor
Bridgeport, CT 06604
Tel. 203-576-7647
Fax. 203-576-8252
dina.scalo@bridgeportct.gov
10
CERTIFICATION
I hereby certify that a copy of the foregoing has been, or will immediately be,
transmitted to all parties of record this 11th day of January, 2024:
Freedom of Information Commission
Kevin W. Munn
Freedom of Information Commission
165 Capitol Ave., Suite 1100
Hartford, CT 06106
Kevin.munn@ct.gov
Intervenors Johanna Fay, New England Innocence Project
Philip Small
Brown Rudnick LLP
185 Asylum Street
Hartford, CT 06103
psmall@brownrudnick.com
Johanna Fay (pro hac vice)
Brown Rudnick LLP
One Financial Center
Boston, MA 02111
jfay@brownrudnick.com
__________/s/___________________
Dina A. Scalo
11
Preview
DOCKET NO. HHB-CV23-6079418-S : SUPERIOR COURT : CHIEF, POLICE DEPARTMENT, CITY OF : JUDICIAL DISTRICT BRIDGEPORT; POLICE DEPARTMENT, : OF NEW BRITAIN CITY OF BRIDGEPORT; AND CITY OF : AT NEW BRITAIN BRIDGEPORT : : v. : : FREEDOM OF INFORMATION : COMMISSION : JANUARY 11, 2024 PLAINTIFFS’ REPLY BRIEF The Chief of Police of the Bridgeport Police Department, the Bridgeport Police Department, and the City of Bridgeport (“the Plaintiffs”) respectfully submit the following brief in response to the briefs filed by the Freedom of Information Commission (“the FOIC”) and the Intervenor Johanna Fay (“the Intervenor”) in the above-captioned matter. The Plaintiffs contend the FOIC’s Brief and the Intervenor’s Brief (Entry Nos. 119.00 and 118.00, “FOIC’s Brief” and “Intervenor’s Brief,” respectively) misinterpret the applicable law, and misapply such law to the administrative record in Docket #FIC 2022- 0182, Johanna Fay v. Chief, Police Department, City of Bridgeport et al. With respect to the FOIC’s Notice (Entry No. 121.00), concerning the denial of the petition for certification to appeal the Appellate Court’s decision in Chief, Police Department, City of Bridgeport et al v. Freedom of Information Commission (222 Conn.App. 17, 2023, “City of Bridgeport”) – which made various findings of fact which overlap with the issues in this matter – while the Plaintiffs do not concede all of the findings in City of Bridgeport, the Plaintiffs submit that the facts in the present case are distinguishable such that there are still myriad procedural, legal, and factual errors which warrant overturning the FOIC’s Final Decision. The Plaintiffs also emphasize that 1 “the procedure [of certification] is not the equivalent of an appeal…It follows that a denial of certification does not necessarily indicate our approval either of the result reached by the Appellate Division or of the opinion rendered by it.” State v. Cullum, 149 Conn. 728, 730 (1961). See also Potvin v. Lincoln Serv. and Equipment Co., 298 Conn. 620, 653 (2010) (“We have made it clear that a denial of a petition for certification to appeal does not signify that this court approves of or affirms the decision or judgment of the Appellate Court.”). I. THE INTERVENOR’S NOTICE OF APPEAL FAILED TO ESTABLISH THAT THE PLAINTIFFS VIOLATED THE FOI ACT. The Intervenor argues that General Statutes §1-206(a) enables a requester to appeal to the FOIC when they have not received a “response” in the form of production of records within four business days of the request, citing Sedensky v. Freedom of Information Commission in support of this contention. Intervenor’s Brief, 9-10 1. As such, the Intervenor claims that her Notice of Appeal, in which alleged that she “did not receive a response within four (4) business days, which is deemed a denial”, legitimately pled a violation of the Freedom of Information Act (“the FOI Act”). Administrative Record, Entry No.114.00, 3 (“Record.”). However, the Sedensky case stands for the opposition proposition: the non-response contemplated by §1-206 is failure to provide any response or acknowledgement of the request, not failure to produce records in that timeframe. As a result, the Notice of Appeal does not plead a violation of the FOI Act upon which it could have been sustained. 1 The Intervenor references a request for records filed prior to the March 23, 2022 request at issue. Intervenor’s Brief at 2. Such request is not only outside the scope of the Final Decision issued by the FOIC, but, as the Intervenor notes in her Notice of Appeal, “the deadline to appeal the earlier request had passed.” Record, 3. Accordingly, such discussion is outside the scope of the present case. 2 Sedensky provides that the failure to respond in §1-206(a) – constituting a constructive violation upon which an appeal to the FOIC may be predicated – is “no immediate response, oral or written, from the public agency..” Sedensky v. Freedom of Info. Comm’n, 2013 WL 6698055, 4 (2013) (emphasis added); see also Plaintiffs’ Brief in Support of Administrative Appeal (Entry No. 116.00, “Plaintiffs’ Brief”), 10-1. Consequently, the Intervenor’s reliance on Sedensky is misplaced. Since the parties agree that the Plaintiffs immediately acknowledged receipt of the request in writing on the same day it was submitted, the Plaintiffs could not have constructively denied the Intervenor’s request at the time of her appeal to the FOIC. See Record, 406. Accordingly, the only violation alleged in the Intervenor’s Notice of Appeal is without merit, and the FOIC’s failure to dismiss the appeal on this basis was in error. Further, the FOIC has consistently found that the four day period set forth in §1- 206 does not mean that requesters are entitled to receive records within four days from the date their request is received: “It is well settled that the law does not require ‘immediate’ access to records upon demand, but rather, permits a person the right to receive a copy of or inspect public records ‘promptly.’… Moreover, and as a corollary to the foregoing, it is well settled that the law does not require a public agency to provide a copy, or to allow inspection of, public records ‘within four business days’ of the request as alleged by the complainant. ‘Rather, §1-206, G.S…. simply provides a requester to file an appeal in the event an agency fails to respond to the request. After four business days have elapsed, if no response is received from an agency, then such non-response is deemed a denial for purposes of triggering the requester’s right to file an appeal without having to wait indefinitely for a response that may never be forthcoming.’” Noah Snyder v. Donna Patchen, Assessor, City of Torrington et al, #FIC 2018-0117, ¶22-3 (2018) (internal citations and paragraph numbers omitted; emphasis added). 3 See also Plaintiffs’ Brief at 12. If production of records within four business days is not a right conferred by the FOI Act, non-production of records within that timeframe cannot be a violation of the FOI Act upon which an appeal can be sustained. The record in this case unambiguously establishes that the FOIC should have dismissed the Intervenor’s Notice of Appeal for this reason. II. THE FOIC ERRED IN CONSIDERING THE MERITS OF THE INTERVENOR’S NOTICE OF APPEAL. The FOIC contends that the Court’s findings in City of Bridgeport “foreclose” the Plaintiffs argument that the Notice of Appeal should have been dismissed due to its failure to plead a violation of the FOI Act. FOIC’s Brief at 9. On the contrary, City of Bridgeport serves to highlight that the FOIC should have dismissed the Intervenor’s appeal in this case. City of Bridgeport held that “a denial of a request, either in fact or pursuant to §1- 206(a), is an essential fact that goes to the merits of a complaint before the commission,” rather than to jurisdiction. City of Bridgeport v. Freedom of Info. Comm’n, 222 Conn.App. 41 (emphasis added). It follows that the hearing(s) would serve as a procedural safeguard to iron out whether a complaint is meritless, premature, or untimely, and therefore subject to dismissal. However, in the present case, the FOIC did not evaluate these issues at the hearing, nor dismiss the Intervenor’s complaint. The resulting Final Decision is in error because the FOIC failed to appreciate the deficiencies of the Notice of Appeal and dismiss the matter. The issue as to if and when a “denial” occurred dovetails with the Plaintiffs argument that the four day period begins to run as of the last communication between 4 the parties, and as a result, the Intervenor’s Notice of Appeal was untimely. Plaintiffs’ Brief at 14. The FOIC and Intervenor counter that the four day period to calculate a denial begins instead four days after such communication, rendering the Notice of Appeal timely. FOIC’s Brief at 11; Intervenor’s Brief at 11. This interpretation of the statutory timeframe is inconsistent with the FOIC’s finding in Anthony Santaniello v. Commissioner, State of Connecticut, Department of Correction et al, Docket #FIC 2021- 0166. Further, §1-206(b) entitles requesters to appeal if they are denied a “right conferred by the Freedom of Information Act;” if the FOIC consistently holds that the FOI Act does not require a public agency to produce records within four business days of a request, then there is no denial of a right afforded by the FOI Act upon which to base an appeal, as the Intervenor contends here. The facts and circumstances in this case demonstrate that it was unreasonable for the FOIC to find that the Plaintiffs violated the FOI Act. Considering the uncontested facts concerning the records sought – that they pertain to criminal records between 1976 and 1987, including a murder investigation (Record, 406) – coupled with the FOIC’s holdings that merely taking the time to process a request does not automatically constitute a violation of the FOI Act 2, the FOIC’s finding that the Plaintiffs violated the FOI Act at the time of the Notice of Appeal rather than dismissing it outright constitutes procedural error. 2 See Mark Widomski v. Superintendent, Shelton Pub. Schools et al, #FIC 2010-576, ¶13, 17 (2010) (“[T]he finance director reasonably believed that the records sought by the complainant would need to be redacted…[T]he finance director reasonably believed that some time and personnel would need to be devoted to compliance with the complainant’s request, and that it could not be done immediately…It is concluded that the respondents did not violate the FOI Act by not permitting the complainant to inspect the records he requested…”). 5 III. THE FOIC ERRED IN CONSIDERING ALLEGATIONS NOT FAIRLY RAISED IN THE INTERVENOR’S NOTICE OF APPEAL. The FOIC argues that the holding in City of Bridgeport that the requester had “no obligation to amend his complaint to allege that the plaintiffs violated the [A]ct by redacting portions of the responsive records,” has “foreclosed” the Plaintiffs’ argument in this case that the FOIC’s consideration of the claims of exemption was improper. FOIC’s Brief at 16-7. However, the Plaintiffs submit not only that the Notice of Appeal filed by the Intervenor is distinguishable, but that the mandate for administrative hearings to comport with principles of fundamental fairness necessitated that the FOIC preclude consideration of allegations outside the Notice of Appeal in this particular case. In City of Bridgeport, the Notice of Appeal filed by the requester was remarkably broad, alleging that “the plaintiffs had not complied with his ‘freedom of information request…’ and requested ‘that a civil penalty be applied due to noncompliance [with] the above-dated request.” City of Bridgeport at 24. By contrast, the Intervenor in this case pled a specific, discrete violation of the FOI Act: that she “did not receive a response within four (4) business days, which is deemed a denial under Conn. Gen. Stat. §1- 206(a).” Record, 3. 3 While the Court in City of Bridgeport interpreted that complainant’s Notice of Appeal to be broad enough “such that a claim [that the City improperly redacted the records was] encompassed within the allegation that the plaintiffs failed to comply with his request for all responsive records,” in the present case, the Intervenor’s 3 While, like in City of Bridgeport, the FOIC held a continued hearing, such an opportunity is not guaranteed in all cases by virtue of the FOIC’s controlling regulations, which require that the FOIC must “decide each such case within sixty (60) days after the conclusion of the hearing therein, but in no event later than one (1) year after the filing of the complaint.” See Regulations of Connecticut State Agencies §1-21j-29(a). 6 complaint pleads such a specific violation that it cannot reasonably be interpreted to encompass unrelated claims of violations after the fact. City of Bridgeport at 66-7. While the FOIC read the Notice of Appeal to contest redactions by implication (see Record at 408), the Court has held “essential allegations may not be supplied by conjecture or remote implication...” Oxford House at Yale v. Gilligan, 125 Conn.App. 464, 470 (2010). “[A] plaintiff may not allege one cause of action and recover upon another.” Gleason v. Durden, 211 Conn.App. 416, 430 (2022). While administrative matters are “informal and are conducted without regard to the strict rules of evidence…they cannot be so conducted as to violate the fundamental rules of natural justice…[D]ue process of law requires that the parties involved have an opportunity to know the facts on which the commission is asked to act…In short, the conduct of the hearing must be fundamentally fair.” Megin v. Zoning Board of Appeals of Town of Milford, 106 Conn.App. 602, 608 (2008) (internal citations, quotations and punctuation omitted; emphasis added). Requiring a party to inform the other of claims against it will allow them to “prepare intelligently for the hearing.” Grimes v. Conservation Comm’n of Town of Litchfield, 243 Conn. 266, 274 (1997) (internal citations and quotations omitted). As Commissioner Streeter stated at the regular meeting, the marked departure of the claims at the hearing from those pled in the Notice of Appeal can be fairly described as “a case of moving the goal post,” which does not comport with the principles of fundamental fairness. Record, 389. The scope of the dispute in this case should therefore have been limited to the issues raised in the Notice of Appeal. Even if the FOIC properly considered exemptions in this case, the inconsistent application of this procedure renders the scope of hearings unpredictable. See Plaintiffs’ 7 Brief at 19. Decision making which is “characterized by unpredictable or impulsive behavior” is fundamentally arbitrary and capricious. Condominium Ass’n, Inc. v. Jones, 2010 WL 654768, 15 (2010). The facts of this case – including the age and nature of the records requested, the complexity of the review for exempt information, and the eventual production of records – clearly demonstrated to the FOIC that the allegations pled in the Notice of Appeal were unfounded, and that the ultimate production of records by the Plaintiffs obviated the need for further consideration of the matter. The FOIC’s procedural consideration to the contrary evidences an arbitrary and capricious abuse of discretion. IV. THE PLAINTIFFS MET THEIR EVIDENTIARY BURDEN AS TO CLAIMED EXEMPTIONS TO DISCLOSURE. The Plaintiffs contend that the evidence in the record, coupled with the character of the responsive records themselves, proves beyond a preponderance of the evidence the applicability of the exemptions to disclosure as claimed. Consequently, the FOIC’s findings to the contrary were against the substantial evidence in the administrative record. 4 Both the FOIC and Intervenor rely on City of Bridgeport in support of their claims that the Plaintiffs did not meet their evidentiary burden as to the exemptions at issue. FOIC’s Brief at 20; Intervenor’s Brief at 12. While the Plaintiffs do not concede that the evidence in City of Bridgeport was insufficient to prove the applicability of the exemptions in that case, the nature of the evidence in the present case is notably distinguishable: the records in this case are decades old, and the claims of exemption 4The Plaintiffs are not contesting the FOIC’s finding that certain material was exempt from disclosure pursuant to §1-210(b)(3)(B), as claimed. See Record, 414-5. 8 are informed not merely by “conclusory statements” as the FOIC and Intervenor claim, but by meticulous review, outside research, and comparison of materials produced by the Intervenor herself. By way of example, the Plaintiffs’ claims that witnesses were not otherwise known to the public, pursuant to §1-210(b)(3)(A), were informed not just through review and consideration of the contents of the investigatory records themselves, but also of publicly available materials concerning the underlying criminal matter, and a list of known witnesses provided by the Intervenor. See Record at 101. Additionally, the language of §1-210(b)(3)(A) requires proving that, if unknown witness information was disclosed, the witness’s “safety would be endangered or [ ] would be subject to threat or intimidation…” (emphasis added). The statutory language does not require proving the risk of harm is an absolute certainty; rather, it contemplates that the exemption can be satisfied through showing that there is a likelihood/possibility that harm would occur. 5 Despite the Intervenor’s attempts to distance the risk of harm to witnesses because her client’s case was in “post-trial,” proceedings, her brief acknowledges the request was made in furtherance of a habeas corpus petition, which implicates many of the same risks to intimidation of witnesses as in pending criminal trials. See Record at 115; Intervenor’s Brief at 14. Further, the testimony in the record – including references to the contents of the records, that an individual on scene was also shot, and that previous acts of violence against witnesses have occurred in the City of Bridgeport – provides an articulable basis demonstrating the exemption is applicable as claimed. See Record, 101-4. 5 “Subject To…1: affected by or possibly affected by (something) 2: likely to do, have, or suffer from.” (emphasis added). “Subject to.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/subject%20to. Accessed 10 Jan. 2024. 9 The FOIC and Intervenor’s implication that a claimed exemption be proved with absolute certainty, from an author/contributor of the record, is not only inconsistent with the language of the FOI Act, but would result in municipalities being functionally unable to successfully claim exemptions, particularly in the case of older/archived records. The FOIC’s contention that an individual who reviews the contents of the record and conducts outside research cannot credibly determine whether the record falls within the scope of the exemption is impractical, and unsupported by the FOI Act. V. CONCLUSION For the foregoing reasons, the record evidences procedural, legal, and factual errors which justify reversal of the Final Decision in Docket #FIC 2022-0182, Johanna Fay v. Chief, Police Department, City of Bridgeport et al. Therefore, the Plaintiffs request that this Court sustain their appeal, and reverse the Final Decision and all orders contained therein, pursuant to General Statutes §4-183(k). CHIEF, POLICE DEPARTMENT, CITY OF BRIDGEPORT; POLICE DEPARTMENT, CITY OF BRIDGEPORT; AND CITY OF BRIDGEPORT BY: __________/s/___________________ Dina A. Scalo OFFICE OF THE CITY ATTORNEY 999 Broad Street, 2nd Floor Bridgeport, CT 06604 Tel. 203-576-7647 Fax. 203-576-8252 dina.scalo@bridgeportct.gov 10 CERTIFICATION I hereby certify that a copy of the foregoing has been, or will immediately be, transmitted to all parties of record this 11th day of January, 2024: Freedom of Information Commission Kevin W. Munn Freedom of Information Commission 165 Capitol Ave., Suite 1100 Hartford, CT 06106 Kevin.munn@ct.gov Intervenors Johanna Fay, New England Innocence Project Philip Small Brown Rudnick LLP 185 Asylum Street Hartford, CT 06103 psmall@brownrudnick.com Johanna Fay (pro hac vice) Brown Rudnick LLP One Financial Center Boston, MA 02111 jfay@brownrudnick.com __________/s/___________________ Dina A. Scalo 11