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HHB-CV23-6079420-S : SUPERIOR COURT
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:
CHIEF, POLICE DEPARTMENT, : J.D. OF NEW BRITAIN
CITY OF BRIDGEPORT, ET AL. : AT NEW BRITAIN
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V. :
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FREEDOM OF INFORMATION :
COMMISSION : December 22, 2023
BRIEF OF DEFENDANT FREEDOM OF INFORMATION COMMISSION
I. NATURE OF THE PROCEEDINGS
This is an administrative appeal pursuant to General Statutes §§ 1-206(d) and 4-
183(c). The plaintiffs, Chief, Police Department, City of Bridgeport; Police Department,
City of Bridgeport (“Police Department”); and City of Bridgeport, appeal from the April
18, 2023 final decision of the Freedom of Information (“FOI”) Commission
(“Commission”) in Docket #FIC 2022-0183, Johanna Fay v. Chief, Police Department,
City of Bridgeport; Police Department, City of Bridgeport; and City of Bridgeport.
Pursuant to an order of this Court, this case was consolidated with HHB-CV23-
6079418. Dkt. #102.10.
These consolidated cases concern requests by intervenor Attorney Johanna Fay
for copies of public records relating to an investigation into a homicide that occurred
over 30 years ago. In the final decisions at issue, the Commission ordered the plaintiffs
to provide Attorney Fay with unredacted copies of most of the requested records. On
appeal, the plaintiffs raise two types of claims: three procedural claims alleging that the
Commission lacked authority to decide the cases on their merits, and two factual claims
alleging that certain findings made by the Commission were not supported by the
administrative record.
Most of the plaintiffs’ claims are foreclosed by the Appellate Court’s recent
decision in City of Bridgeport v. FOI Commission, 222 Conn. App. 17 (2023). The
plaintiffs, however, ignore the substance of the Appellate Court’s opinion entirely and
make no attempt to grapple with the import of that decision in its application to these
cases. In fact, the plaintiffs’ discussion of City of Bridgeport is limited to the unsupported
assertion that these cases are distinguishable from that one. The plaintiffs further
assert, without any citation to authority, that their petition for certification asking the
Supreme Court to review certain aspects of City of Bridgeport somehow “suspend[s] the
binding nature” of the Appellate Court’s opinion. The plaintiffs’ brief does not
acknowledge that the Appellate Court has thoroughly analyzed—and soundly rejected—
most of the arguments that the plaintiffs make in this case.
The Appellate Court’s opinion in City of Bridgeport remains binding
notwithstanding the plaintiffs’ pending petition for certification to the Supreme Court.
See State v. Andino, 173 Conn. App. 851, 874 n.12 (2017) (even when Supreme Court
grants certification, “prior to a final determination of the cause by our Supreme Court, a
decision of this court is binding precedent on this court”). For those claims that are not
directly controlled by City of Bridgeport, the plaintiffs either ignore the plain language of
the controlling statutes or ignore the substantial evidence in the record that supports the
Commission’s decision. For these reasons, this Court should dismiss the plaintiffs’
appeal and affirm the Commission’s decision.
2
II. STATEMENT OF FACTS AND PROCEDURAL HISTORY
On March 23, 2022, Attorney Fay submitted a request through the plaintiffs’
online portal for copies of “the complete investigative file and all records associated
with” a 1988 homicide investigation that resulted in the conviction of Anthony Hopkins.
Record (“R”) 211-12; see State v. Hopkins, 222 Conn. 117 (1992). Attorney Fay and
Intervenor the New England Innocence Project (“Innocence Project”) represent Mr.
Hopkins in connection with a post-conviction investigation related to that conviction. R.
100, 390. While Attorney Fay received an automated acknowledgment of her request on
the same day she submitted it, the plaintiffs did not expressly deny or comply with the
request within four business days. R. 45. On April 25, 2022, Attorney Fay appealed to
the Commission pursuant to General Statutes § 1-206, alleging that the plaintiffs
“violated the [FOI] Act by failing to provide copies of [the requested] records.” R. 3-4. By
order dated September 30, 2022, the matter underlying this appeal was consolidated for
hearing purposes with the matter underlying docket CV23-6079420.1 R. 39.
An initial hearing was convened by the Commission on October 12, 2022. Five
days before the hearing, on October 7, 2022, the plaintiffs provided Attorney Fay (for
the first time) with redacted copies of records responsive to her request. R. 45-46. On
the same date, the plaintiffs notified Attorney Fay (again for the first time) that they had
partially denied her request by refusing to disclose certain responsive records, or
portions thereof, pursuant to various statutory exemptions. R. 216. On October 11,
2022, the plaintiffs provided Attorney Fay with redacted copies of additional responsive
records. R. 46, 215.
1
In the records request at issue in docket CV23-6079418, Attorney Fay requested “any and all records
related to Anthony Hopkins.” Even though the language of the request in this case differs from the
request at issue in docket CV23-6079418, the records at issue in both cases are identical. R. 390 ¶14.
3
At the initial hearing, the plaintiffs did not present any evidence to justify their
decision to partially deny the request. Even though the plaintiffs did not notify Attorney
Fay until five days before the hearing that they were withholding responsive records
based on various statutory exemptions, the plaintiffs claimed that the Commission
lacked authority to address the propriety of those exemptions because Attorney Fay did
not identify in her complaint which exemptions she was challenging. R. 59-61, 64-65.
The plaintiffs initially contended that, for the Commission to address the claimed
exemptions, Attorney Fay was obligated to file an amended complaint. R. 64-65. When
pressed by the hearing officer, however, the plaintiffs retreated from that position.
Instead, the plaintiffs stated that it would have been sufficient if Attorney Fay had simply
sent an email the night before the hearing to notify the plaintiffs and the Commission
that she was challenging the exemptions. R. 67-68. Alternatively, the plaintiffs
requested that the hearing be continued so that the plaintiffs could present evidence
regarding the claimed exemptions. R. 68. The hearing officer granted a continuance to
allow the plaintiffs the opportunity to present testimony regarding the claimed
exemptions, and further ordered the plaintiffs to submit the unredacted records for in
camera review. R. 70-71.
The continued hearing was held on March 2, 2023, at which time the plaintiffs’
counsel, who reviewed the responsive records and decided which records to withhold,
testified regarding the basis of the plaintiffs’ decision to partially deny the request in
reliance on various statutory exemptions. R. 97. The plaintiffs’ counsel first testified
regarding the basis for the plaintiffs’ decision to withhold records based on the
exemption set forth in General Statutes § 1-210(b)(3)(A), which allows law enforcement
agencies to withhold “the identity of witnesses not otherwise known whose safety would
4
be endangered or who would be subject to threat or intimidation if their identity was
made known.” The plaintiffs readily acknowledged that, given the age of the
investigation, the Police Department had “very little institutional knowledge” about the
case and “[did] not have routine access to trial materials or criminal record materials.” R.
100. In addition, the plaintiffs’ counsel testified that, even though she was the one to
decide whether to redact the names of witnesses, she has a “very limited understanding
of the criminal procedure process” and “[doesn’t] know what records are maintained in
the criminal file” because she “[doesn’t] have access to that.” R. 109. The plaintiffs’
counsel also acknowledged that, while she knew that there may be some difference
between what is publicly disclosed during a criminal trial and what is only disclosed to
defense counsel during discovery, she “[didn’t] know what is disclosed in either forum,
apart from what is made available on the Internet and the materials that opposing
counsel have provided to me in this and other cases.” R. 109-10.
Thus, to determine whether witnesses were “otherwise known” within the
meaning of § 1-210(b)(3)(A), the plaintiffs’ counsel relied primarily on information
provided by Attorney Fay about which witnesses testified at trial, as well as court
decisions and other publicly available documents she found while searching Google and
Westlaw. R. 99-100, 108. Attorney Fay told the plaintiffs that she did not have access to
all of the criminal trial materials and did not know every witness who was identified
during trial. R. 87, 110. Even so, the plaintiffs’ counsel testified that, if Attorney Fay did
not provide the name of a certain witness, the plaintiffs considered that “compelling
proof that those individuals are not known … to the general public.” R. 100. When it was
inconclusive whether a witness had been publicly identified, the plaintiffs withheld the
identity of that witness. R. 100-01.
5
With respect to whether the allegedly unknown witnesses would be at risk if their
identities were disclosed, the plaintiffs testified that their default position is to redact the
names of all unknown witnesses because “there is essentially always an inherent risk
[of] harm or intimidation of witnesses if the perpetrator or members of the public learn of
their identity.” R. 101. The plaintiffs acknowledged that they were unaware of any
evidence that any specific witness would be subject to threat or intimidation. R. 115-16.
In fact, the plaintiffs’ counsel testified that she did not know if any of the witnesses in
question were even alive because she “[didn’t] think [it was] relevant for [her] inquiry.” R.
113. The only specific evidence the plaintiffs identified to support their belief that the
allegedly unknown witnesses might be at risk of harm or intimidation was the fact that,
11 years after the incident in Mr. Hopkins’ case and 24 years before Attorney Fay made
the request at issue, a witness in an entirely unrelated case was killed to prevent him
from testifying. R. 102, 110; see State v. Peeler, 271 Conn. 338, 351-53 (2004).
Nevertheless, unless the plaintiffs were able to conclusively determine that a witness
had been publicly identified, they withheld the witness’s identity. R. 100-01, 114-16.
The plaintiffs also redacted certain information based on the exemption set forth
in General Statutes § 1-210(b)(1), which allows agencies to withhold “[p]reliminary
drafts or notes provided the public agency has determined that the public interest in
withholding such documents clearly outweighs the public interest in disclosure.” The
plaintiffs’ counsel testified that the plaintiffs withheld handwritten notes that “appear[ed]
to be” information gathered during the investigation that “may or may not have resulted
in a formal report ….” R. 104-05; 119-20. Despite acknowledging earlier in her
testimony that she was “not a member of the police department” and had only a “very
limited understanding of the criminal procedure process,” R. 109, 116, the plaintiffs’
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counsel testified that she personally made the determination that “the benefit of
withholding that sort of pre-decisional … material outweighs the benefit to the public”
that would result from disclosing such material. R. 105. The plaintiffs’ counsel based
that determination on her belief that the handwritten notes might contain information
about the investigation that is “confusing or contradictory” or “that hasn’t been vetted.”
R. 118-19. The plaintiffs did not present any evidence that anyone from the Police
Department was consulted about that determination.2
On April 3, 2023, the Commission transmitted a proposed final decision to the
parties. The proposed final decision rejected the plaintiffs’ procedural claims, and further
concluded that the plaintiffs did not prove the propriety of the exemptions at issue. R.
288-99. The decision proposed that the Commission order the plaintiffs to disclose
unredacted copies of the requested records, except for those that were found to be
properly withheld or that were uncontested.3 At the Commission’s regular meeting of
April 12, 2023, the Commission voted unanimously to adopt the proposed final decision
as written. R. 383-85. The Commission transmitted the final decision on April 18, 2023.
R. 387-97.
III. STANDARD OF REVIEW
This Court’s review “is governed by the Uniform Administrative Procedure Act
[General Statutes § 4-166 et seq.] ... and the scope of that review is very restricted.”
2
The plaintiffs claimed other exemptions in the proceedings before the Commission. In their brief,
however, the plaintiffs only address the Commission’s findings with respect to the exemptions for
unknown witnesses and preliminary drafts and notes, set forth in General Statutes §§ (b)(3)(A) and 1-
210(b)(1), respectively. Because the plaintiffs waived any claims regarding any other exemptions, this
brief omits any discussion of that testimony. See also part IV.D.3, infra.
3
The proposed final decision concluded that the plaintiffs properly withheld records that would have
disclosed the identity of minor witnesses. R. 298 ¶50. Attorney Fay did not challenge certain other
exemptions claimed by the plaintiffs.
7
Lash v. FOI Commission, 300 Conn. 511, 517 (2011). General Statutes § 4-183(j)
provides:
The court shall not substitute its judgment for that of the
agency as to the weight of the evidence on questions of fact.
The court shall affirm the decision of the agency unless the
court finds that substantial rights of the person appealing
have been prejudiced because the administrative findings,
inferences, conclusions, or decisions are: (1) [i]n violation of
constitutional or statutory provisions; (2) in excess of the
statutory authority of the agency; (3) made upon unlawful
procedure; (4) affected by other error of law; (5) clearly
erroneous in view of the reliable, probative, and substantial
evidence on the whole record; or (6) arbitrary or capricious
or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
Judicial review of an administrative agency’s final decision is “highly deferential.”
Bezzini v. Department of Social Services, 49 Conn. App. 432, 436 (1998). “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 application of the law to the facts
found and could reasonably and logically follow from such facts.” City of Bridgeport,
supra, 222 Conn. App. at 34-35.
With respect to the Commission’s factual findings, courts are “required to defer to
the subordinate facts found by the [C]ommission, if there is substantial evidence to
support those findings…. Substantial evidence exists if the administrative record affords
a substantial basis of fact from which the fact in issue can be reasonably inferred.”
Braasch v. FOI Commission, 218 Conn. App. 488, 498 (2023). “The substantial
evidence rule imposes an important limitation on the power of the courts to overturn a
decision of an administrative agency ... and ... provide[s] a more restrictive standard of
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review than standards embodying review of weight of the evidence or clearly erroneous
action.” Eagen v. Commission on Human Rights & Opportunities, 135 Conn. App. 563,
572 (2012). “The plaintiff shoulders the burden of proof when challenging a decision of
an administrative agency,” and “[a] showing by the plaintiff that another decision maker
might have reached a different conclusion does not satisfy this burden.” Keiser v.
Conservation Commission of Town of Redding, 41 Conn. App. 39, 41 (1996).
Finally, issues of statutory interpretation are governed by General Statutes § 1-
2z, which provides:
The meaning of a statute shall, in the first instance, be
ascertained from the text of the statute itself and its
relationship to other statutes. If, after examining such text and
considering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the meaning of
the statute shall not be considered.
IV. ARGUMENT
A. The plaintiffs’ claim that the Commission should have dismissed the case
because the request was never denied is foreclosed by the Appellate
Court’s decision in City of Bridgeport.
The plaintiffs first claim that the Commission should have dismissed the case
because the plaintiffs had not denied Attorney Fay’s request at the time of the
complaint. Plaintiffs’ Brief (“PB”) 10-15. The plaintiffs, however, fail to acknowledge that
they made the very same argument in City of Bridgeport, and that the Appellate Court
flatly rejected that argument. Accordingly, the plaintiffs’ identical claim in this case also
must be rejected.4
4
The plaintiffs continue to insist that the Commission is deprived of jurisdiction when a complaint does
not allege that a request was denied. But the plaintiffs fail to acknowledge that the Appellate Court in City
of Bridgeport expressly 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 [C]ommission. Whether that fact has
been established does not implicate the commission’s jurisdiction, as it would be a bizarre result
that the failure to prove an essential fact at trial deprives the [tribunal] of subject matter jurisdiction.”
9
General Statutes § 1-206(b)(1) provides that “[a]ny person denied the right to
inspect or copy records under section 1-210 or … denied any other right conferred by
the [FOI] Act may appeal therefrom to the [FOI] Commission, by filing a notice of appeal
with said [C]ommission.” Thus, a requester’s right to file an appeal with the Commission
arises when the public agency denies the request. As a limitation on that right, however,
§ 1-206(b)(1) further requires that any “appeal shall be filed not later than thirty days
after such denial.” The Supreme Court has held that the time limitations in § 1-206(b)
are mandatory and cannot be disregarded. See Zoning Board of Appeals of North
Haven v. FOI Commission, 198 Conn. 498, 505 (1986); Town of West Hartford v. FOI
Commission, 218 Conn. 256, 261 (1991).
That restriction—a mandatory, non-waivable, and relatively short 30-day window
in which to appeal—creates a problem if an agency doesn’t expressly grant or deny a
request. If a requester loses her right to appeal after 30 days, and the agency doesn’t
inform the requester during that time whether her request is granted or denied, how
would the requester know when to appeal?
General Statutes § 1-206(a) solves that problem by requiring “[a]ny denial” of a
request to be “in writing, within four business days of such request”, and that “[f]ailure to
comply with a request … within the applicable number of days shall be deemed to be a
denial” (hereafter “deemed denial provision”). In Town of West Hartford, supra, 218
Conn. at 261-62, the Court recognized that the deemed denial provision is designed to
establish a requester’s right to appeal when an agency fails either to comply with, or
issue a written denial of, a request within four business days:
(Emphasis added; citation & quotation marks omitted.) City of Bridgeport, supra, 222 Conn. App. at 41. In
any event, regardless of whether the plaintiffs’ claim implicates the Commission’s jurisdiction or the merits
of the case, it is foreclosed by City of Bridgeport.
10
[Section 1-206(a)] ensures an expedient right of appeal for
those who do not desire to await a written denial. Although
written denial of a request for disclosure of public records is
required; General Statutes § [1-206(a)]; there is no statutory
recourse against a public agency for failure to comply with
this requirement. Without the statutory denial provision,
therefore, if a public agency failed to respond to a request,
the person seeking disclosure would have no further
recourse because the right of appeal to the [Commission] in
§ [1-206(b)] is the right to appeal a denial.
Here, Attorney Fay alleged that she submitted her request on March 23, 2022,
and that she “did not receive a response within four (4) business days, which is deemed
a denial under [General Statutes] § 1-206(a).” R. 3. She further alleged that the
requested documents “must be disclosed under the [FOI Act] because they are public
records,” and that the plaintiffs “violated the [FOI] Act by failing to provide copies of [the
requested records].” R. 4. In addition, the plaintiffs conceded multiple times throughout
the proceedings that they did not comply with the request within four business days.
E.g., R. 95, 240-41. Accordingly, Attorney Fay alleged and proved that the request had
been “denied,” within the meaning of § 1-206(a), at the time of the complaint.
Even though § 1-206(a) unambiguously provides that “failure to comply with a
request” within four business days is “deemed to be a denial” for purposes of allowing
the requester to appeal, the plaintiffs argue that the statute really means that agencies
need only acknowledge a request within four business days to avoid triggering the
deemed denial provision. The plaintiffs contend that because they acknowledged the
request on the same day it was received, the request was not deemed to be denied
under § 1-206(a), and Attorney Fay did not have the right to appeal.
Curiously, the plaintiffs never even mention the statutory language of § 1-206(a),
much less explain why “failure to comply” should be interpreted to mean “failure to
acknowledge.” More importantly, the plaintiffs also fail to recognize that the Appellate
11
Court in City of Bridgeport rejected the very same argument that the plaintiffs advance
here. In that case, the requester filed a complaint with the Commission alleging that
these same plaintiffs violated the FOI Act by failing to comply with his request. The
plaintiffs claimed that because they sent a letter acknowledging the request on the
same day they received it, the deemed denial provision of § 1-206(a) did not apply, and
the Commission should have dismissed the case without a hearing. City of Bridgeport,
supra, 222 Conn. App. at 64-65. The Court rejected that argument:
[T]here is no question that a complaint alleging a violation of
the act is within the [C]ommission’s jurisdiction, and [the
requester’s] complaint alleged that the plaintiffs had failed to
comply with his August 6, 2019 request. Section 1-206(a)
provides that “[f]ailure to comply with a request to so inspect
or copy such public record within the applicable number of
business days shall be deemed to be a denial.” … Because,
for purposes of filing a complaint with the
[C]ommission, the act requires compliance with a
request for public records—not simply “assurances”
that the agency will comply at some point in the future—
the plaintiffs conceded in their answer that they had not
complied with [the requester]’s request, not only at the time
that he filed his complaint, but also more than one month
thereafter when the plaintiffs filed their answer.
(Emphasis altered from original; footnote removed). Id. at 63.5
5
In City of Bridgeport, the plaintiffs claimed that the Commission should have dismissed the appeal
without a hearing pursuant to either General Statutes § 1-206(b)(2), which allows the Executive Director
of the Commission to refuse to schedule a hearing if the complaint is beyond the Commission’s
jurisdiction, or General Statutes § 1-206(b)(4), which allows the Commission to dismiss an appeal without
a hearing if the complaint does not allege a violation of the FOI Act. Here, the plaintiffs do not expressly
rely on either provision, but instead simply argue that the Commission lacked jurisdiction over the
complaint.
Nevertheless, the plaintiffs’ legal argument in City of Bridgeport was exactly the same as their
argument here: that the deemed denial provision does not apply as long as the public agency simply
acknowledges the request. The plaintiffs continue to pursue this claim even though they did not ask the
Supreme Court to review that portion of the Appellate Court’s opinion in City of Bridgeport. See City of
Bridgeport, et al. v. FOI Commission, Pet. SC 230215, available at
https://appellateinquiry.jud.ct.gov/DocumentDisplayer.aspx?AppId=2&DocId=V6hgyJlAUmGEXphvNygho
g%3d%3d. Thus, the Appellate Court’s holding on that point is final and binding, and there is no basis for
the plaintiffs to continue to pursue this claim.
12
The plaintiffs’ argument that this interpretation of § 1-206(a) is contrary to
Commission precedent likewise was rejected by the Appellate Court in City of
Bridgeport. The plaintiffs rely on cases in which the Commission concluded that the
failure to comply with a request within four days does not necessarily violate the
requirement in General Statutes § 1-210(a) that agencies comply with public records
requests “promptly.” As the Court explained in City of Bridgeport, whether an agency
complied promptly is an entirely separate question from whether a requester has the
right to appeal:
[T]he question of when an appeal can be filed is distinct from
the question of whether the agency violated the act....
Consequently, the act does not mandate that a public
agency’s failure to disclose requested records within four
business days after receiving a records request constitutes a
violation of the act…. Rather, the act requires “prompt”
access, which is not reduced to a number of days….
As the [C]ommission has explained, the issue of promptness
“is a particularly fact-based question” involving the
consideration of various factors, including “the volume of
records requested; the time and personnel required to
comply with a request; the time by which the person
requesting records needs them; the time constraints under
which the agency must complete its other work; the
importance of the records to the requester, if ascertainable;
and the importance to the public of completing the other
agency business without the loss of the personnel time
involved in complying with the request.” (Internal quotation
marks omitted.) Lucarelli v. Chief, Police Dept., Freedom of
Information Commission, Docket No. FIC 2008-631 (July 22,
2009).
City of Bridgeport, supra, 222 Conn. App. at 51.
In addition to being foreclosed by the plain language of the statute and binding
precedent, the plaintiffs’ interpretation of § 1-206(a) would defeat the purpose of the
deemed denial provision. “It is axiomatic that we construe a statute in a manner that will
not thwart its intended purpose or lead to absurd results.” (Citation & quotation marks
13
omitted.) Kelly v. City of New Haven, 275 Conn. 580, 616 (2005). If an automated
acknowledgment constituted “compliance” for purposes of § 1-206(a), public agencies
would be able to forever thwart a requester’s right to seek redress from the Commission
by sending a boilerplate acknowledgment in response to every request. That is exactly
the problem that § 1-206(a) was intended to prevent. The plaintiffs’ interpretation would
render the deemed denial provision entirely meaningless.
Thus, the plaintiffs’ claim that the complaint failed to allege a violation of the FOI
Act is foreclosed by the plain language of § 1-206(a), the Appellate Court’s decision in
City of Bridgeport, and fundamental principles of statutory interpretation. The plaintiffs’
claim must be rejected.
B. The Commission correctly concluded that the complaint was timely.
The plaintiffs next claim that, although General Statutes § 1-206(b)(1) requires a
notice of appeal to be filed “not later than thirty days after [the] denial” of a request, the
Commission should have calculated the 30-day appeal period from the date of the
request, rather than the date of the denial. The plaintiffs’ claim is without merit because
it is contrary to the plain language of the statute.
As noted previously, General Statutes § 1-206(b)(1) provides the right to appeal
from the denial of a records request, and requires that the “notice of appeal shall be
filed not later than thirty days after such denial ….” (Emphasis added.) To determine
the timeliness of an appeal, § 1-206(b)(1) provides that “[f]or purposes of this
subsection, such notice of appeal shall be deemed to be filed on the date it is received
by said [C]ommission or on the date it is postmarked, if received more than thirty days
after the date of the denial from which such appeal is taken.”
14
Attorney Fay submitted her request on March 23, 2022. R. 3. As explained
previously, § 1-206(a) provides that a request is deemed to be denied if the public
agency fails to comply with the request within four business days. The Commission
found that four business days from March 23, 2022 was March 29, 2022. R. 392, ¶ 25.
The Commission further found that the plaintiffs failed to comply with the request by
March 29, 2022 and, accordingly, that the request was deemed to be denied on that
date. Id. Because the complaint was filed on April 25, 2022, which is within 30 days of
the March 29, 2022 denial, the Commission concluded that the complaint was timely. R.
392, ¶ 27.
The plaintiffs claim that, notwithstanding the plain language of § 1-206(b)(1), the
Commission should have calculated the 30-day appeal period from the date of the
request, rather than the date of the denial. Contrary to the plaintiffs’ contention,
however, the Commission has not previously concluded that a requester has “30 days
from the last communication between the parties” to appeal. PB 15. In fact, “[t]he
Commission has consistently held over many years that a complaint must be filed
within thirty days of a denial deemed by statute.” (Emphasis added.) Aronow v.
Executive Vice President, State of Connecticut, University of Connecticut Health Center,
et al., Docket #2014-156, ¶9 (Feb. 4, 2015), available at
https://portal.ct.gov/FOI/Decisions/Final-Decisions-2015/FIC2104-156.
It is true that, when it appears that a complaint was filed more than 30 days after
an initial denial, the Commission generally will inquire whether there was any
subsequent correspondence between the parties. However, that does not mean that the
30-day appeal period is calculated from the date of the last correspondence. Rather, the
Supreme Court has held that if a requester does not appeal within 30 days of the denial
15
of her initial request, the requester may renew her request to restart the appeal period.
See Board of Education for City of New Haven v. FOI Commission, 208 Conn. 442, 451
(1988) (“The [FOI Act] does not bar successive requests, nor does it bar successive
denials, nor does it require an appeal within thirty days of the denial of any particular
request.”). Because a follow-up inquiry may constitute a “renewed” request for purposes
of calculating the appeal period, the Commission’s practice is to inquire about any
correspondence between the parties after the date of the initial request. But even then,
the 30-day appeal period runs from the date of the denial of the renewed request, not
the date of the last correspondence. See Aronow, supra, Docket #2014-156, ¶9
(complaint untimely where it was filed “more than sixty days past the denial of the
complainant’s request that is deemed to have occurred on December 20, 2013, four
business days following the complainant’s December 16, 2013 renewed request”
(Emphasis added.)); Hernandez III v. Director of Labor Relations, Labor Relations
Office, City of Bridgeport, Docket #FIC 2006-242, ¶11 (Jan. 24, 2007), available at
https://www.state.ct.us/foi/2007FD/20070124/FIC2006-242.htm (“the notice of appeal in
this matter was filed less than thirty days after the denial of the renewed request”
(Emphasis added.)).
The Commission’s interpretation of § 1-206(b)(1) tracks the plain and
unambiguous language of the statute, as required by General Statutes § 1-2z. The
plaintiffs’ attempt to rewrite the statute should be rejected.
C. The plaintiffs’ claim that the Commission lacked authority to address the
propriety of the claimed exemptions is foreclosed by City of Bridgeport.
The plaintiffs next claim that the Commission lacked authority to address the
propriety of the claimed exemptions because the complaint did not specify which
exemptions were at issue. However, the Appellate Court rejected this very argument in
16
City of Bridgeport. In that case, the Court held that when a complaint alleges that a
public agency failed to provide all requested records, such allegations necessarily
encompass the claim that the agency improperly withheld portions of such records in
reliance on statutory exemptions.6
As they do here, the plaintiffs in City of Bridgeport “claim[ed] that the
[C]ommission should have limited the scope of its inquiry to the facts and allegations
that existed at the time of the complaint,” and that “[a]ny contentions raised by [the
complainant] at the hearing, specifically with respect to the disputed redactions, should
not have been considered by the hearing officer due to being outside the scope of the
complaint, consistent with [C]ommission precedent.” City of Bridgeport, supra, 222
Conn. App. at 65. The Court rejected that claim outright:
The [FOI] [A]ct “makes disclosure of public records the
statutory norm. ... [I]t is well established that the general rule
under the [act] is disclosure, and any exception to that rule
will be narrowly construed in light of the general policy of
openness 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.) Lewin v. Freedom of Information
Commission, 91 Conn. App. 521, 526, 881 A.2d 519, cert.
denied, 276 Conn. 921, 888 A.2d 88 (2005).
In the present case, in which [the complainant] alleged that
the plaintiffs failed to comply with his request, the fact that
the plaintiffs believed that they complied by providing
redacted copies of the responsive records did not resolve
6
In framing their argument, the plaintiffs mischaracterize the Commission’s decision when they suggest
that the Commission concluded that “each and every complaint, once filed with the [Commission], may be
expanded in scope to include any and all alleged violations of the FOI Act which may become relevant
during the course of the proceedings ….” PB 19. The plaintiffs argued to the Commission that the
complaint did not put the plaintiffs on notice that their claimed exemptions would be at issue. The
Commission disagreed, concluding that, by alleging that the plaintiffs “violated the [FOI] Act by failing to
provide copies of [the requested] police records,” and that “no exemptions apply to the requested
records,” R. 3-4, the complaint put the plaintiffs on notice that Attorney Fay was challenging the plaintiffs’
failure to provide all responsive records, and that such allegations necessarily encompassed the claim
that the plaintiffs improperly redacted portions of those records. Nothing in the record suggests that the
Commission “expanded the scope” of the complaint to include claims that were not fairly pleaded. Rather,
the Commission concluded that the propriety of the exemptions was within the scope of the complaint.
17
[the] complaint that the plaintiffs had not complied with his
request. Indeed, the plaintiffs bore the burden of proving the
propriety of the exemptions they claimed to establish that
they had complied with [the complainant’s] request. Thus,
[the complainant] had no obligation to amend his
complaint to allege that the plaintiffs violated the [A]ct
by redacting portions of the responsive records, as
such a claim is encompassed within the allegation that
the plaintiffs failed to comply with his request for all
responsive records. Furthermore, because the plaintiffs
bore the burden of proof as to any claimed exemption, they
were not prejudiced by the [C]ommission’s consideration of
those exemptions as part of its consideration of [the]
complaint. This is particularly true in the present case, in
which the hearing officer continued the hearing to
another date to give the plaintiffs an opportunity to
present evidence in support of their claimed
exemptions. (Emphasis added.) Id. at 66-67.
The Appellate Court’s analysis controls the outcome here because the facts and
procedural history of this case mirror those in City of Bridgeport. Like the complainant in
City of Bridgeport, Attorney Fay alleged that the plaintiffs violated the FOI Act by failing
to disclose the requested records. R. 3-4. Also like in City of Bridgeport, after the
complaint was filed, the plaintiffs notified Attorney Fay that they were refusing to
disclose portions of responsive records in reliance on various statutory exemptions. R.
45-46, 216. Finally, again like in City of Bridgeport, the hearing officer continued the
hearing for several months to allow the plaintiffs the opportunity to present evidence in
support of their claimed exemptions. R. 70-71, 83. Thus, the plaintiffs had ample notice
that their claimed exemptions would be at issue, and that it was their burden to prove
the applicability of those exemptions.7
7
While the formal pleading requirements of civil practice do not govern the Commission’s proceedings, to
conceptualize the problem with the plaintiffs’ claim, it is helpful to think of a claim that a requested record
is exempt from disclosure as akin to an affirmative defense. “Generally speaking, facts must be pleaded
as a special defense when they are consistent with the allegations of the complaint but demonstrate,
nonetheless, that the plaintiff has no cause of action.” Almada v. Wausau Bus. Ins. Co., 274 Conn. 449,
456 (2005). The presumption under the FOI Act is that public agencies are required to disclose all public
records. Thus, to establish a prima facie case that an agency violated the FOI Act, a complainant is only
18
The Appellate Court in City of Bridgeport also addressed the plaintiffs’ argument,
which they repeat here, that the Commission acted arbitrarily because, in prior cases,
the Commission allegedly declined to consider issues outside the allegations in the
complaint. In City of Bridgeport, the Court rejected that argument because the cases
that the plaintiffs relied on “did not involve a respondent’s failure to comply fully with a
request based on claimed exemptions from disclosure under the [FOI] [A]ct.” City of
Bridgeport, supra, 222 Conn. App. at 65-66.
Here, the plaintiffs rely on one additional recent case, Lane v. Commissioner,
State of Connecticut, Department of Correction, et al., Docket #FIC 2022-0316, but that
case suffers from the same problem: it did not involve the situation here, in which the
public agency failed to fully comply with a request by withholding or redacting
responsive records. In Lane, the proposed final decision found that the respondents
provided the complainant with the only responsive record they maintained, but that they
were not prompt in doing so. Lane v. Commissioner, State of Connecticut, Department
of Correction, et al., Docket #FIC 2022-0316, Proposed Final Decision, ¶¶ 14-20 (June
23, 2023), available at https://portal.ct.gov/-/media/FOI/Agendas/2023/July12/2022-
0316.pdf. While the respondents in Lane argued that promptness was not raised in the
complaint, the Commission did not, as the plaintiffs claim, amend the decision on that
basis. Instead, the Commission amended the decision to find that the respondents had
complied promptly. See FOI Commission, Minutes, Regular Meeting of July 12, 2023,
required to show that she requested records and that the agency did not comply. Once the complainant
does that, the burden is on the agency to prove that its failure to comply with the request did not
constitute a violation of the FOI Act.
19
available at https://portal.ct.gov/-/media/FOI/Minutes/2023/Minutes_07122023_A.pdf.
Thus, Lane does not support the plaintiffs’ argument.8
As a practical matter, the plaintiffs’ position is nothing more than an attempt to
erect an unnecessary procedural roadblock that would frustrate the public’s right to
prompt access to public records. The absurdity of the plaintiffs’ position is best
demonstrated by their concession that a simple email from Attorney Fay the night
before the hearing would have been sufficient to allow the Commission to address the
propriety of the claimed exemptions. R. 67-68. In other words, in the plaintiffs’ view, an
email the night before a hearing would be sufficient to put them on notice that the
complainant is challenging the propriety of their claimed exemptions, but an on-the-
record clarification the next morning deprives the Commission of jurisdiction to address
such exemptions.
The plaintiffs’ elevation of form over substance has no basis in law or logic. The
plaintiffs’ claim is controlled by City of Bridgeport and must be denied.
D. The administrative record supports the Commission’s conclusion that the
records at issue were not exempt from disclosure pursuant to General
Statutes §§ 1-210(b)(1) and (b)(3)(A).
In their final set of claims, the plaintiffs challenge certain factual findings
underlying the Commission’s conclusion that the records at issue were not exempt from
disclosure pursuant to General Statutes §§ 1-210(b)(1) and (b)(3)(A). The specific
8
While the plaintiffs attempt to incorporate by reference additional arguments from their post-hearing
brief, those arguments cannot be considered because parties are not permitted to incorporate other
pleadings by reference as a way to expand on their arguments. See Elwell v. Kellogg, 220 Conn. App.
822, 833 n.18 (2023) (declining to review claim because “plaintiff’s attempt to incorporate a trial court
pleading by reference into her principal appellate brief is not procedurally proper”); Robb v. Connecticut
Board of Veterinary Medicine, 204 Conn. App. 595, 612, cert. denied, 338 Conn. 911, 259 A.3d 654
(2021) (“plaintiff’s attempt to incorporate by reference his amended verified complaint into his principal
appellate brief is not procedurally proper”). In any event, the plaintiffs’ claim is controlled by City of
Bridgeport and must be rejected.
20
arguments presented by the plaintiffs with respect to each claimed exemption are
addressed in more detail below. At the outset, however, the Commission notes that the
plaintiffs’ factual arguments evince a fundamental misunderstanding of the burden that
public agencies must meet to establish the applicability of an exemption, and the role of
the Commission in determining whether the agency met that burden.
The Supreme Court has long recognized that “the general rule, under the [A]ct,
… is disclosure,” and that “[e]xceptions to that rule will be narrowly construed in light of
the underlying purpose of the act.” (Citations omitted.) Wilson v. FOI Commission, 181
Conn. 324, 329 (1980). As the proponents of an exemption, the plaintiffs had the burden
to present “a sufficiently detailed record [that] reflect[s] the reasons why an exemption
applies to the materials requested.” City of New Haven v. FOI Commission, 205 Conn.
767, 776 (1988). On appeal, it is the plaintiffs’ burden to establish not just “that another
decision maker might have reached a different conclusion,” but “that substantial
evidence does not exist in the record to support the [Commission’s] decision.” Keiser,
supra, 41 Conn. App. at 41. Moreover, the Commission “is endowed with a broad
discretion in determining the credibility and in evaluating the testimony of witnesses,”
Kureczka v. FOI Commission, 1992 WL 361794, at *5 (Conn. Super. Dec. 1, 1992),
aff'd, 228 Conn. 271 (1994), and the Court “is required to defer to the subordinate facts
found by the [C]ommission, if there is substantial evidence to support those findings.”
Braasch v. FOI Commission, 218 Conn. App. 488, 498 (2023).
Rather than attempt to show that the Commission’s findings were not supported
by substantial evidence, the plaintiffs primarily argue that the testimony they presented
was sufficient to meet their burden. However, even if the plaintiffs presented sufficient
evidence such that a different factfinder could have found that they met their burden,
21
that is not enough to overturn the Commission’s decision. It was the Commission’s role
to assess the evidence and make factual findings based on that assessment, and
nothing in the FOI Act or the UAPA required the Commission to accept the plaintiffs’
judgment as to the applicability of an exemption. The plaintiffs’ belief that the
Commission should have credited the plaintiffs’ own view of the evidence is irrelevant.
1. The plaintiffs’ challenge to the Commission’s conclusion that the
records at issue are not exempt pursuant to General Statutes § 1-
210(b)(3)(A) is foreclosed by City of Bridgeport.
General Statutes § 1-210(b)(3)(A) provides that public agencies are not required
to disclose “[r]ecords of law enforcement agencies not otherwise available to the public
which records were compiled in connection with the detection or investigation of crime,
if the disclosure of such records would not be in the public interest because it would
result in the disclosure of … the identity of witnesses not otherwise known whose safety
would be endangered or who would be subject to threat or intimidation if their identity
was made known.” As relevant here, to establish the applicability of this exemption, the
plaintiffs were required to prove that (1) the identity of the witnesses in question were
not otherwise known to the public, and (2) such witnesses’ safety would be endangered
or they would be subject to threat or intimidation if their identities were disclosed. See
City of Bridgeport, supra, 222 Conn. App. at 69-70. “[G]eneralized claims of a possible
safety risk do not satisfy the [plaintiffs’] burden of proving the appli
Preview
HHB-CV23-6079420-S : SUPERIOR COURT : : CHIEF, POLICE DEPARTMENT, : J.D. OF NEW BRITAIN CITY OF BRIDGEPORT, ET AL. : AT NEW BRITAIN : V. : : FREEDOM OF INFORMATION : COMMISSION : December 22, 2023 BRIEF OF DEFENDANT FREEDOM OF INFORMATION COMMISSION I. NATURE OF THE PROCEEDINGS This is an administrative appeal pursuant to General Statutes §§ 1-206(d) and 4- 183(c). The plaintiffs, Chief, Police Department, City of Bridgeport; Police Department, City of Bridgeport (“Police Department”); and City of Bridgeport, appeal from the April 18, 2023 final decision of the Freedom of Information (“FOI”) Commission (“Commission”) in Docket #FIC 2022-0183, Johanna Fay v. Chief, Police Department, City of Bridgeport; Police Department, City of Bridgeport; and City of Bridgeport. Pursuant to an order of this Court, this case was consolidated with HHB-CV23- 6079418. Dkt. #102.10. These consolidated cases concern requests by intervenor Attorney Johanna Fay for copies of public records relating to an investigation into a homicide that occurred over 30 years ago. In the final decisions at issue, the Commission ordered the plaintiffs to provide Attorney Fay with unredacted copies of most of the requested records. On appeal, the plaintiffs raise two types of claims: three procedural claims alleging that the Commission lacked authority to decide the cases on their merits, and two factual claims alleging that certain findings made by the Commission were not supported by the administrative record. Most of the plaintiffs’ claims are foreclosed by the Appellate Court’s recent decision in City of Bridgeport v. FOI Commission, 222 Conn. App. 17 (2023). The plaintiffs, however, ignore the substance of the Appellate Court’s opinion entirely and make no attempt to grapple with the import of that decision in its application to these cases. In fact, the plaintiffs’ discussion of City of Bridgeport is limited to the unsupported assertion that these cases are distinguishable from that one. The plaintiffs further assert, without any citation to authority, that their petition for certification asking the Supreme Court to review certain aspects of City of Bridgeport somehow “suspend[s] the binding nature” of the Appellate Court’s opinion. The plaintiffs’ brief does not acknowledge that the Appellate Court has thoroughly analyzed—and soundly rejected— most of the arguments that the plaintiffs make in this case. The Appellate Court’s opinion in City of Bridgeport remains binding notwithstanding the plaintiffs’ pending petition for certification to the Supreme Court. See State v. Andino, 173 Conn. App. 851, 874 n.12 (2017) (even when Supreme Court grants certification, “prior to a final determination of the cause by our Supreme Court, a decision of this court is binding precedent on this court”). For those claims that are not directly controlled by City of Bridgeport, the plaintiffs either ignore the plain language of the controlling statutes or ignore the substantial evidence in the record that supports the Commission’s decision. For these reasons, this Court should dismiss the plaintiffs’ appeal and affirm the Commission’s decision. 2 II. STATEMENT OF FACTS AND PROCEDURAL HISTORY On March 23, 2022, Attorney Fay submitted a request through the plaintiffs’ online portal for copies of “the complete investigative file and all records associated with” a 1988 homicide investigation that resulted in the conviction of Anthony Hopkins. Record (“R”) 211-12; see State v. Hopkins, 222 Conn. 117 (1992). Attorney Fay and Intervenor the New England Innocence Project (“Innocence Project”) represent Mr. Hopkins in connection with a post-conviction investigation related to that conviction. R. 100, 390. While Attorney Fay received an automated acknowledgment of her request on the same day she submitted it, the plaintiffs did not expressly deny or comply with the request within four business days. R. 45. On April 25, 2022, Attorney Fay appealed to the Commission pursuant to General Statutes § 1-206, alleging that the plaintiffs “violated the [FOI] Act by failing to provide copies of [the requested] records.” R. 3-4. By order dated September 30, 2022, the matter underlying this appeal was consolidated for hearing purposes with the matter underlying docket CV23-6079420.1 R. 39. An initial hearing was convened by the Commission on October 12, 2022. Five days before the hearing, on October 7, 2022, the plaintiffs provided Attorney Fay (for the first time) with redacted copies of records responsive to her request. R. 45-46. On the same date, the plaintiffs notified Attorney Fay (again for the first time) that they had partially denied her request by refusing to disclose certain responsive records, or portions thereof, pursuant to various statutory exemptions. R. 216. On October 11, 2022, the plaintiffs provided Attorney Fay with redacted copies of additional responsive records. R. 46, 215. 1 In the records request at issue in docket CV23-6079418, Attorney Fay requested “any and all records related to Anthony Hopkins.” Even though the language of the request in this case differs from the request at issue in docket CV23-6079418, the records at issue in both cases are identical. R. 390 ¶14. 3 At the initial hearing, the plaintiffs did not present any evidence to justify their decision to partially deny the request. Even though the plaintiffs did not notify Attorney Fay until five days before the hearing that they were withholding responsive records based on various statutory exemptions, the plaintiffs claimed that the Commission lacked authority to address the propriety of those exemptions because Attorney Fay did not identify in her complaint which exemptions she was challenging. R. 59-61, 64-65. The plaintiffs initially contended that, for the Commission to address the claimed exemptions, Attorney Fay was obligated to file an amended complaint. R. 64-65. When pressed by the hearing officer, however, the plaintiffs retreated from that position. Instead, the plaintiffs stated that it would have been sufficient if Attorney Fay had simply sent an email the night before the hearing to notify the plaintiffs and the Commission that she was challenging the exemptions. R. 67-68. Alternatively, the plaintiffs requested that the hearing be continued so that the plaintiffs could present evidence regarding the claimed exemptions. R. 68. The hearing officer granted a continuance to allow the plaintiffs the opportunity to present testimony regarding the claimed exemptions, and further ordered the plaintiffs to submit the unredacted records for in camera review. R. 70-71. The continued hearing was held on March 2, 2023, at which time the plaintiffs’ counsel, who reviewed the responsive records and decided which records to withhold, testified regarding the basis of the plaintiffs’ decision to partially deny the request in reliance on various statutory exemptions. R. 97. The plaintiffs’ counsel first testified regarding the basis for the plaintiffs’ decision to withhold records based on the exemption set forth in General Statutes § 1-210(b)(3)(A), which allows law enforcement agencies to withhold “the identity of witnesses not otherwise known whose safety would 4 be endangered or who would be subject to threat or intimidation if their identity was made known.” The plaintiffs readily acknowledged that, given the age of the investigation, the Police Department had “very little institutional knowledge” about the case and “[did] not have routine access to trial materials or criminal record materials.” R. 100. In addition, the plaintiffs’ counsel testified that, even though she was the one to decide whether to redact the names of witnesses, she has a “very limited understanding of the criminal procedure process” and “[doesn’t] know what records are maintained in the criminal file” because she “[doesn’t] have access to that.” R. 109. The plaintiffs’ counsel also acknowledged that, while she knew that there may be some difference between what is publicly disclosed during a criminal trial and what is only disclosed to defense counsel during discovery, she “[didn’t] know what is disclosed in either forum, apart from what is made available on the Internet and the materials that opposing counsel have provided to me in this and other cases.” R. 109-10. Thus, to determine whether witnesses were “otherwise known” within the meaning of § 1-210(b)(3)(A), the plaintiffs’ counsel relied primarily on information provided by Attorney Fay about which witnesses testified at trial, as well as court decisions and other publicly available documents she found while searching Google and Westlaw. R. 99-100, 108. Attorney Fay told the plaintiffs that she did not have access to all of the criminal trial materials and did not know every witness who was identified during trial. R. 87, 110. Even so, the plaintiffs’ counsel testified that, if Attorney Fay did not provide the name of a certain witness, the plaintiffs considered that “compelling proof that those individuals are not known … to the general public.” R. 100. When it was inconclusive whether a witness had been publicly identified, the plaintiffs withheld the identity of that witness. R. 100-01. 5 With respect to whether the allegedly unknown witnesses would be at risk if their identities were disclosed, the plaintiffs testified that their default position is to redact the names of all unknown witnesses because “there is essentially always an inherent risk [of] harm or intimidation of witnesses if the perpetrator or members of the public learn of their identity.” R. 101. The plaintiffs acknowledged that they were unaware of any evidence that any specific witness would be subject to threat or intimidation. R. 115-16. In fact, the plaintiffs’ counsel testified that she did not know if any of the witnesses in question were even alive because she “[didn’t] think [it was] relevant for [her] inquiry.” R. 113. The only specific evidence the plaintiffs identified to support their belief that the allegedly unknown witnesses might be at risk of harm or intimidation was the fact that, 11 years after the incident in Mr. Hopkins’ case and 24 years before Attorney Fay made the request at issue, a witness in an entirely unrelated case was killed to prevent him from testifying. R. 102, 110; see State v. Peeler, 271 Conn. 338, 351-53 (2004). Nevertheless, unless the plaintiffs were able to conclusively determine that a witness had been publicly identified, they withheld the witness’s identity. R. 100-01, 114-16. The plaintiffs also redacted certain information based on the exemption set forth in General Statutes § 1-210(b)(1), which allows agencies to withhold “[p]reliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.” The plaintiffs’ counsel testified that the plaintiffs withheld handwritten notes that “appear[ed] to be” information gathered during the investigation that “may or may not have resulted in a formal report ….” R. 104-05; 119-20. Despite acknowledging earlier in her testimony that she was “not a member of the police department” and had only a “very limited understanding of the criminal procedure process,” R. 109, 116, the plaintiffs’ 6 counsel testified that she personally made the determination that “the benefit of withholding that sort of pre-decisional … material outweighs the benefit to the public” that would result from disclosing such material. R. 105. The plaintiffs’ counsel based that determination on her belief that the handwritten notes might contain information about the investigation that is “confusing or contradictory” or “that hasn’t been vetted.” R. 118-19. The plaintiffs did not present any evidence that anyone from the Police Department was consulted about that determination.2 On April 3, 2023, the Commission transmitted a proposed final decision to the parties. The proposed final decision rejected the plaintiffs’ procedural claims, and further concluded that the plaintiffs did not prove the propriety of the exemptions at issue. R. 288-99. The decision proposed that the Commission order the plaintiffs to disclose unredacted copies of the requested records, except for those that were found to be properly withheld or that were uncontested.3 At the Commission’s regular meeting of April 12, 2023, the Commission voted unanimously to adopt the proposed final decision as written. R. 383-85. The Commission transmitted the final decision on April 18, 2023. R. 387-97. III. STANDARD OF REVIEW This Court’s review “is governed by the Uniform Administrative Procedure Act [General Statutes § 4-166 et seq.] ... and the scope of that review is very restricted.” 2 The plaintiffs claimed other exemptions in the proceedings before the Commission. In their brief, however, the plaintiffs only address the Commission’s findings with respect to the exemptions for unknown witnesses and preliminary drafts and notes, set forth in General Statutes §§ (b)(3)(A) and 1- 210(b)(1), respectively. Because the plaintiffs waived any claims regarding any other exemptions, this brief omits any discussion of that testimony. See also part IV.D.3, infra. 3 The proposed final decision concluded that the plaintiffs properly withheld records that would have disclosed the identity of minor witnesses. R. 298 ¶50. Attorney Fay did not challenge certain other exemptions claimed by the plaintiffs. 7 Lash v. FOI Commission, 300 Conn. 511, 517 (2011). General Statutes § 4-183(j) provides: The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) [i]n violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. Judicial review of an administrative agency’s final decision is “highly deferential.” Bezzini v. Department of Social Services, 49 Conn. App. 432, 436 (1998). “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 application of the law to the facts found and could reasonably and logically follow from such facts.” City of Bridgeport, supra, 222 Conn. App. at 34-35. With respect to the Commission’s factual findings, courts are “required to defer to the subordinate facts found by the [C]ommission, if there is substantial evidence to support those findings…. Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” Braasch v. FOI Commission, 218 Conn. App. 488, 498 (2023). “The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency ... and ... provide[s] a more restrictive standard of 8 review than standards embodying review of weight of the evidence or clearly erroneous action.” Eagen v. Commission on Human Rights & Opportunities, 135 Conn. App. 563, 572 (2012). “The plaintiff shoulders the burden of proof when challenging a decision of an administrative agency,” and “[a] showing by the plaintiff that another decision maker might have reached a different conclusion does not satisfy this burden.” Keiser v. Conservation Commission of Town of Redding, 41 Conn. App. 39, 41 (1996). Finally, issues of statutory interpretation are governed by General Statutes § 1- 2z, which provides: The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. IV. ARGUMENT A. The plaintiffs’ claim that the Commission should have dismissed the case because the request was never denied is foreclosed by the Appellate Court’s decision in City of Bridgeport. The plaintiffs first claim that the Commission should have dismissed the case because the plaintiffs had not denied Attorney Fay’s request at the time of the complaint. Plaintiffs’ Brief (“PB”) 10-15. The plaintiffs, however, fail to acknowledge that they made the very same argument in City of Bridgeport, and that the Appellate Court flatly rejected that argument. Accordingly, the plaintiffs’ identical claim in this case also must be rejected.4 4 The plaintiffs continue to insist that the Commission is deprived of jurisdiction when a complaint does not allege that a request was denied. But the plaintiffs fail to acknowledge that the Appellate Court in City of Bridgeport expressly 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 [C]ommission. Whether that fact has been established does not implicate the commission’s jurisdiction, as it would be a bizarre result that the failure to prove an essential fact at trial deprives the [tribunal] of subject matter jurisdiction.” 9 General Statutes § 1-206(b)(1) provides that “[a]ny person denied the right to inspect or copy records under section 1-210 or … denied any other right conferred by the [FOI] Act may appeal therefrom to the [FOI] Commission, by filing a notice of appeal with said [C]ommission.” Thus, a requester’s right to file an appeal with the Commission arises when the public agency denies the request. As a limitation on that right, however, § 1-206(b)(1) further requires that any “appeal shall be filed not later than thirty days after such denial.” The Supreme Court has held that the time limitations in § 1-206(b) are mandatory and cannot be disregarded. See Zoning Board of Appeals of North Haven v. FOI Commission, 198 Conn. 498, 505 (1986); Town of West Hartford v. FOI Commission, 218 Conn. 256, 261 (1991). That restriction—a mandatory, non-waivable, and relatively short 30-day window in which to appeal—creates a problem if an agency doesn’t expressly grant or deny a request. If a requester loses her right to appeal after 30 days, and the agency doesn’t inform the requester during that time whether her request is granted or denied, how would the requester know when to appeal? General Statutes § 1-206(a) solves that problem by requiring “[a]ny denial” of a request to be “in writing, within four business days of such request”, and that “[f]ailure to comply with a request … within the applicable number of days shall be deemed to be a denial” (hereafter “deemed denial provision”). In Town of West Hartford, supra, 218 Conn. at 261-62, the Court recognized that the deemed denial provision is designed to establish a requester’s right to appeal when an agency fails either to comply with, or issue a written denial of, a request within four business days: (Emphasis added; citation & quotation marks omitted.) City of Bridgeport, supra, 222 Conn. App. at 41. In any event, regardless of whether the plaintiffs’ claim implicates the Commission’s jurisdiction or the merits of the case, it is foreclosed by City of Bridgeport. 10 [Section 1-206(a)] ensures an expedient right of appeal for those who do not desire to await a written denial. Although written denial of a request for disclosure of public records is required; General Statutes § [1-206(a)]; there is no statutory recourse against a public agency for failure to comply with this requirement. Without the statutory denial provision, therefore, if a public agency failed to respond to a request, the person seeking disclosure would have no further recourse because the right of appeal to the [Commission] in § [1-206(b)] is the right to appeal a denial. Here, Attorney Fay alleged that she submitted her request on March 23, 2022, and that she “did not receive a response within four (4) business days, which is deemed a denial under [General Statutes] § 1-206(a).” R. 3. She further alleged that the requested documents “must be disclosed under the [FOI Act] because they are public records,” and that the plaintiffs “violated the [FOI] Act by failing to provide copies of [the requested records].” R. 4. In addition, the plaintiffs conceded multiple times throughout the proceedings that they did not comply with the request within four business days. E.g., R. 95, 240-41. Accordingly, Attorney Fay alleged and proved that the request had been “denied,” within the meaning of § 1-206(a), at the time of the complaint. Even though § 1-206(a) unambiguously provides that “failure to comply with a request” within four business days is “deemed to be a denial” for purposes of allowing the requester to appeal, the plaintiffs argue that the statute really means that agencies need only acknowledge a request within four business days to avoid triggering the deemed denial provision. The plaintiffs contend that because they acknowledged the request on the same day it was received, the request was not deemed to be denied under § 1-206(a), and Attorney Fay did not have the right to appeal. Curiously, the plaintiffs never even mention the statutory language of § 1-206(a), much less explain why “failure to comply” should be interpreted to mean “failure to acknowledge.” More importantly, the plaintiffs also fail to recognize that the Appellate 11 Court in City of Bridgeport rejected the very same argument that the plaintiffs advance here. In that case, the requester filed a complaint with the Commission alleging that these same plaintiffs violated the FOI Act by failing to comply with his request. The plaintiffs claimed that because they sent a letter acknowledging the request on the same day they received it, the deemed denial provision of § 1-206(a) did not apply, and the Commission should have dismissed the case without a hearing. City of Bridgeport, supra, 222 Conn. App. at 64-65. The Court rejected that argument: [T]here is no question that a complaint alleging a violation of the act is within the [C]ommission’s jurisdiction, and [the requester’s] complaint alleged that the plaintiffs had failed to comply with his August 6, 2019 request. Section 1-206(a) provides that “[f]ailure to comply with a request to so inspect or copy such public record within the applicable number of business days shall be deemed to be a denial.” … Because, for purposes of filing a complaint with the [C]ommission, the act requires compliance with a request for public records—not simply “assurances” that the agency will comply at some point in the future— the plaintiffs conceded in their answer that they had not complied with [the requester]’s request, not only at the time that he filed his complaint, but also more than one month thereafter when the plaintiffs filed their answer. (Emphasis altered from original; footnote removed). Id. at 63.5 5 In City of Bridgeport, the plaintiffs claimed that the Commission should have dismissed the appeal without a hearing pursuant to either General Statutes § 1-206(b)(2), which allows the Executive Director of the Commission to refuse to schedule a hearing if the complaint is beyond the Commission’s jurisdiction, or General Statutes § 1-206(b)(4), which allows the Commission to dismiss an appeal without a hearing if the complaint does not allege a violation of the FOI Act. Here, the plaintiffs do not expressly rely on either provision, but instead simply argue that the Commission lacked jurisdiction over the complaint. Nevertheless, the plaintiffs’ legal argument in City of Bridgeport was exactly the same as their argument here: that the deemed denial provision does not apply as long as the public agency simply acknowledges the request. The plaintiffs continue to pursue this claim even though they did not ask the Supreme Court to review that portion of the Appellate Court’s opinion in City of Bridgeport. See City of Bridgeport, et al. v. FOI Commission, Pet. SC 230215, available at https://appellateinquiry.jud.ct.gov/DocumentDisplayer.aspx?AppId=2&DocId=V6hgyJlAUmGEXphvNygho g%3d%3d. Thus, the Appellate Court’s holding on that point is final and binding, and there is no basis for the plaintiffs to continue to pursue this claim. 12 The plaintiffs’ argument that this interpretation of § 1-206(a) is contrary to Commission precedent likewise was rejected by the Appellate Court in City of Bridgeport. The plaintiffs rely on cases in which the Commission concluded that the failure to comply with a request within four days does not necessarily violate the requirement in General Statutes § 1-210(a) that agencies comply with public records requests “promptly.” As the Court explained in City of Bridgeport, whether an agency complied promptly is an entirely separate question from whether a requester has the right to appeal: [T]he question of when an appeal can be filed is distinct from the question of whether the agency violated the act.... Consequently, the act does not mandate that a public agency’s failure to disclose requested records within four business days after receiving a records request constitutes a violation of the act…. Rather, the act requires “prompt” access, which is not reduced to a number of days…. As the [C]ommission has explained, the issue of promptness “is a particularly fact-based question” involving the consideration of various factors, including “the volume of records requested; the time and personnel required to comply with a request; the time by which the person requesting records needs them; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the importance to the public of completing the other agency business without the loss of the personnel time involved in complying with the request.” (Internal quotation marks omitted.) Lucarelli v. Chief, Police Dept., Freedom of Information Commission, Docket No. FIC 2008-631 (July 22, 2009). City of Bridgeport, supra, 222 Conn. App. at 51. In addition to being foreclosed by the plain language of the statute and binding precedent, the plaintiffs’ interpretation of § 1-206(a) would defeat the purpose of the deemed denial provision. “It is axiomatic that we construe a statute in a manner that will not thwart its intended purpose or lead to absurd results.” (Citation & quotation marks 13 omitted.) Kelly v. City of New Haven, 275 Conn. 580, 616 (2005). If an automated acknowledgment constituted “compliance” for purposes of § 1-206(a), public agencies would be able to forever thwart a requester’s right to seek redress from the Commission by sending a boilerplate acknowledgment in response to every request. That is exactly the problem that § 1-206(a) was intended to prevent. The plaintiffs’ interpretation would render the deemed denial provision entirely meaningless. Thus, the plaintiffs’ claim that the complaint failed to allege a violation of the FOI Act is foreclosed by the plain language of § 1-206(a), the Appellate Court’s decision in City of Bridgeport, and fundamental principles of statutory interpretation. The plaintiffs’ claim must be rejected. B. The Commission correctly concluded that the complaint was timely. The plaintiffs next claim that, although General Statutes § 1-206(b)(1) requires a notice of appeal to be filed “not later than thirty days after [the] denial” of a request, the Commission should have calculated the 30-day appeal period from the date of the request, rather than the date of the denial. The plaintiffs’ claim is without merit because it is contrary to the plain language of the statute. As noted previously, General Statutes § 1-206(b)(1) provides the right to appeal from the denial of a records request, and requires that the “notice of appeal shall be filed not later than thirty days after such denial ….” (Emphasis added.) To determine the timeliness of an appeal, § 1-206(b)(1) provides that “[f]or purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said [C]ommission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken.” 14 Attorney Fay submitted her request on March 23, 2022. R. 3. As explained previously, § 1-206(a) provides that a request is deemed to be denied if the public agency fails to comply with the request within four business days. The Commission found that four business days from March 23, 2022 was March 29, 2022. R. 392, ¶ 25. The Commission further found that the plaintiffs failed to comply with the request by March 29, 2022 and, accordingly, that the request was deemed to be denied on that date. Id. Because the complaint was filed on April 25, 2022, which is within 30 days of the March 29, 2022 denial, the Commission concluded that the complaint was timely. R. 392, ¶ 27. The plaintiffs claim that, notwithstanding the plain language of § 1-206(b)(1), the Commission should have calculated the 30-day appeal period from the date of the request, rather than the date of the denial. Contrary to the plaintiffs’ contention, however, the Commission has not previously concluded that a requester has “30 days from the last communication between the parties” to appeal. PB 15. In fact, “[t]he Commission has consistently held over many years that a complaint must be filed within thirty days of a denial deemed by statute.” (Emphasis added.) Aronow v. Executive Vice President, State of Connecticut, University of Connecticut Health Center, et al., Docket #2014-156, ¶9 (Feb. 4, 2015), available at https://portal.ct.gov/FOI/Decisions/Final-Decisions-2015/FIC2104-156. It is true that, when it appears that a complaint was filed more than 30 days after an initial denial, the Commission generally will inquire whether there was any subsequent correspondence between the parties. However, that does not mean that the 30-day appeal period is calculated from the date of the last correspondence. Rather, the Supreme Court has held that if a requester does not appeal within 30 days of the denial 15 of her initial request, the requester may renew her request to restart the appeal period. See Board of Education for City of New Haven v. FOI Commission, 208 Conn. 442, 451 (1988) (“The [FOI Act] does not bar successive requests, nor does it bar successive denials, nor does it require an appeal within thirty days of the denial of any particular request.”). Because a follow-up inquiry may constitute a “renewed” request for purposes of calculating the appeal period, the Commission’s practice is to inquire about any correspondence between the parties after the date of the initial request. But even then, the 30-day appeal period runs from the date of the denial of the renewed request, not the date of the last correspondence. See Aronow, supra, Docket #2014-156, ¶9 (complaint untimely where it was filed “more than sixty days past the denial of the complainant’s request that is deemed to have occurred on December 20, 2013, four business days following the complainant’s December 16, 2013 renewed request” (Emphasis added.)); Hernandez III v. Director of Labor Relations, Labor Relations Office, City of Bridgeport, Docket #FIC 2006-242, ¶11 (Jan. 24, 2007), available at https://www.state.ct.us/foi/2007FD/20070124/FIC2006-242.htm (“the notice of appeal in this matter was filed less than thirty days after the denial of the renewed request” (Emphasis added.)). The Commission’s interpretation of § 1-206(b)(1) tracks the plain and unambiguous language of the statute, as required by General Statutes § 1-2z. The plaintiffs’ attempt to rewrite the statute should be rejected. C. The plaintiffs’ claim that the Commission lacked authority to address the propriety of the claimed exemptions is foreclosed by City of Bridgeport. The plaintiffs next claim that the Commission lacked authority to address the propriety of the claimed exemptions because the complaint did not specify which exemptions were at issue. However, the Appellate Court rejected this very argument in 16 City of Bridgeport. In that case, the Court held that when a complaint alleges that a public agency failed to provide all requested records, such allegations necessarily encompass the claim that the agency improperly withheld portions of such records in reliance on statutory exemptions.6 As they do here, the plaintiffs in City of Bridgeport “claim[ed] that the [C]ommission should have limited the scope of its inquiry to the facts and allegations that existed at the time of the complaint,” and that “[a]ny contentions raised by [the complainant] at the hearing, specifically with respect to the disputed redactions, should not have been considered by the hearing officer due to being outside the scope of the complaint, consistent with [C]ommission precedent.” City of Bridgeport, supra, 222 Conn. App. at 65. The Court rejected that claim outright: The [FOI] [A]ct “makes disclosure of public records the statutory norm. ... [I]t is well established that the general rule under the [act] is disclosure, and any exception to that rule will be narrowly construed in light of the general policy of openness 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.) Lewin v. Freedom of Information Commission, 91 Conn. App. 521, 526, 881 A.2d 519, cert. denied, 276 Conn. 921, 888 A.2d 88 (2005). In the present case, in which [the complainant] alleged that the plaintiffs failed to comply with his request, the fact that the plaintiffs believed that they complied by providing redacted copies of the responsive records did not resolve 6 In framing their argument, the plaintiffs mischaracterize the Commission’s decision when they suggest that the Commission concluded that “each and every complaint, once filed with the [Commission], may be expanded in scope to include any and all alleged violations of the FOI Act which may become relevant during the course of the proceedings ….” PB 19. The plaintiffs argued to the Commission that the complaint did not put the plaintiffs on notice that their claimed exemptions would be at issue. The Commission disagreed, concluding that, by alleging that the plaintiffs “violated the [FOI] Act by failing to provide copies of [the requested] police records,” and that “no exemptions apply to the requested records,” R. 3-4, the complaint put the plaintiffs on notice that Attorney Fay was challenging the plaintiffs’ failure to provide all responsive records, and that such allegations necessarily encompassed the claim that the plaintiffs improperly redacted portions of those records. Nothing in the record suggests that the Commission “expanded the scope” of the complaint to include claims that were not fairly pleaded. Rather, the Commission concluded that the propriety of the exemptions was within the scope of the complaint. 17 [the] complaint that the plaintiffs had not complied with his request. Indeed, the plaintiffs bore the burden of proving the propriety of the exemptions they claimed to establish that they had complied with [the complainant’s] request. Thus, [the complainant] had no obligation to amend his complaint to allege that the plaintiffs violated the [A]ct by redacting portions of the responsive records, as such a claim is encompassed within the allegation that the plaintiffs failed to comply with his request for all responsive records. Furthermore, because the plaintiffs bore the burden of proof as to any claimed exemption, they were not prejudiced by the [C]ommission’s consideration of those exemptions as part of its consideration of [the] complaint. This is particularly true in the present case, in which the hearing officer continued the hearing to another date to give the plaintiffs an opportunity to present evidence in support of their claimed exemptions. (Emphasis added.) Id. at 66-67. The Appellate Court’s analysis controls the outcome here because the facts and procedural history of this case mirror those in City of Bridgeport. Like the complainant in City of Bridgeport, Attorney Fay alleged that the plaintiffs violated the FOI Act by failing to disclose the requested records. R. 3-4. Also like in City of Bridgeport, after the complaint was filed, the plaintiffs notified Attorney Fay that they were refusing to disclose portions of responsive records in reliance on various statutory exemptions. R. 45-46, 216. Finally, again like in City of Bridgeport, the hearing officer continued the hearing for several months to allow the plaintiffs the opportunity to present evidence in support of their claimed exemptions. R. 70-71, 83. Thus, the plaintiffs had ample notice that their claimed exemptions would be at issue, and that it was their burden to prove the applicability of those exemptions.7 7 While the formal pleading requirements of civil practice do not govern the Commission’s proceedings, to conceptualize the problem with the plaintiffs’ claim, it is helpful to think of a claim that a requested record is exempt from disclosure as akin to an affirmative defense. “Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action.” Almada v. Wausau Bus. Ins. Co., 274 Conn. 449, 456 (2005). The presumption under the FOI Act is that public agencies are required to disclose all public records. Thus, to establish a prima facie case that an agency violated the FOI Act, a complainant is only 18 The Appellate Court in City of Bridgeport also addressed the plaintiffs’ argument, which they repeat here, that the Commission acted arbitrarily because, in prior cases, the Commission allegedly declined to consider issues outside the allegations in the complaint. In City of Bridgeport, the Court rejected that argument because the cases that the plaintiffs relied on “did not involve a respondent’s failure to comply fully with a request based on claimed exemptions from disclosure under the [FOI] [A]ct.” City of Bridgeport, supra, 222 Conn. App. at 65-66. Here, the plaintiffs rely on one additional recent case, Lane v. Commissioner, State of Connecticut, Department of Correction, et al., Docket #FIC 2022-0316, but that case suffers from the same problem: it did not involve the situation here, in which the public agency failed to fully comply with a request by withholding or redacting responsive records. In Lane, the proposed final decision found that the respondents provided the complainant with the only responsive record they maintained, but that they were not prompt in doing so. Lane v. Commissioner, State of Connecticut, Department of Correction, et al., Docket #FIC 2022-0316, Proposed Final Decision, ¶¶ 14-20 (June 23, 2023), available at https://portal.ct.gov/-/media/FOI/Agendas/2023/July12/2022- 0316.pdf. While the respondents in Lane argued that promptness was not raised in the complaint, the Commission did not, as the plaintiffs claim, amend the decision on that basis. Instead, the Commission amended the decision to find that the respondents had complied promptly. See FOI Commission, Minutes, Regular Meeting of July 12, 2023, required to show that she requested records and that the agency did not comply. Once the complainant does that, the burden is on the agency to prove that its failure to comply with the request did not constitute a violation of the FOI Act. 19 available at https://portal.ct.gov/-/media/FOI/Minutes/2023/Minutes_07122023_A.pdf. Thus, Lane does not support the plaintiffs’ argument.8 As a practical matter, the plaintiffs’ position is nothing more than an attempt to erect an unnecessary procedural roadblock that would frustrate the public’s right to prompt access to public records. The absurdity of the plaintiffs’ position is best demonstrated by their concession that a simple email from Attorney Fay the night before the hearing would have been sufficient to allow the Commission to address the propriety of the claimed exemptions. R. 67-68. In other words, in the plaintiffs’ view, an email the night before a hearing would be sufficient to put them on notice that the complainant is challenging the propriety of their claimed exemptions, but an on-the- record clarification the next morning deprives the Commission of jurisdiction to address such exemptions. The plaintiffs’ elevation of form over substance has no basis in law or logic. The plaintiffs’ claim is controlled by City of Bridgeport and must be denied. D. The administrative record supports the Commission’s conclusion that the records at issue were not exempt from disclosure pursuant to General Statutes §§ 1-210(b)(1) and (b)(3)(A). In their final set of claims, the plaintiffs challenge certain factual findings underlying the Commission’s conclusion that the records at issue were not exempt from disclosure pursuant to General Statutes §§ 1-210(b)(1) and (b)(3)(A). The specific 8 While the plaintiffs attempt to incorporate by reference additional arguments from their post-hearing brief, those arguments cannot be considered because parties are not permitted to incorporate other pleadings by reference as a way to expand on their arguments. See Elwell v. Kellogg, 220 Conn. App. 822, 833 n.18 (2023) (declining to review claim because “plaintiff’s attempt to incorporate a trial court pleading by reference into her principal appellate brief is not procedurally proper”); Robb v. Connecticut Board of Veterinary Medicine, 204 Conn. App. 595, 612, cert. denied, 338 Conn. 911, 259 A.3d 654 (2021) (“plaintiff’s attempt to incorporate by reference his amended verified complaint into his principal appellate brief is not procedurally proper”). In any event, the plaintiffs’ claim is controlled by City of Bridgeport and must be rejected. 20 arguments presented by the plaintiffs with respect to each claimed exemption are addressed in more detail below. At the outset, however, the Commission notes that the plaintiffs’ factual arguments evince a fundamental misunderstanding of the burden that public agencies must meet to establish the applicability of an exemption, and the role of the Commission in determining whether the agency met that burden. The Supreme Court has long recognized that “the general rule, under the [A]ct, … is disclosure,” and that “[e]xceptions to that rule will be narrowly construed in light of the underlying purpose of the act.” (Citations omitted.) Wilson v. FOI Commission, 181 Conn. 324, 329 (1980). As the proponents of an exemption, the plaintiffs had the burden to present “a sufficiently detailed record [that] reflect[s] the reasons why an exemption applies to the materials requested.” City of New Haven v. FOI Commission, 205 Conn. 767, 776 (1988). On appeal, it is the plaintiffs’ burden to establish not just “that another decision maker might have reached a different conclusion,” but “that substantial evidence does not exist in the record to support the [Commission’s] decision.” Keiser, supra, 41 Conn. App. at 41. Moreover, the Commission “is endowed with a broad discretion in determining the credibility and in evaluating the testimony of witnesses,” Kureczka v. FOI Commission, 1992 WL 361794, at *5 (Conn. Super. Dec. 1, 1992), aff'd, 228 Conn. 271 (1994), and the Court “is required to defer to the subordinate facts found by the [C]ommission, if there is substantial evidence to support those findings.” Braasch v. FOI Commission, 218 Conn. App. 488, 498 (2023). Rather than attempt to show that the Commission’s findings were not supported by substantial evidence, the plaintiffs primarily argue that the testimony they presented was sufficient to meet their burden. However, even if the plaintiffs presented sufficient evidence such that a different factfinder could have found that they met their burden, 21 that is not enough to overturn the Commission’s decision. It was the Commission’s role to assess the evidence and make factual findings based on that assessment, and nothing in the FOI Act or the UAPA required the Commission to accept the plaintiffs’ judgment as to the applicability of an exemption. The plaintiffs’ belief that the Commission should have credited the plaintiffs’ own view of the evidence is irrelevant. 1. The plaintiffs’ challenge to the Commission’s conclusion that the records at issue are not exempt pursuant to General Statutes § 1- 210(b)(3)(A) is foreclosed by City of Bridgeport. General Statutes § 1-210(b)(3)(A) provides that public agencies are not required to disclose “[r]ecords of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of such records would not be in the public interest because it would result in the disclosure of … the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known.” As relevant here, to establish the applicability of this exemption, the plaintiffs were required to prove that (1) the identity of the witnesses in question were not otherwise known to the public, and (2) such witnesses’ safety would be endangered or they would be subject to threat or intimidation if their identities were disclosed. See City of Bridgeport, supra, 222 Conn. App. at 69-70. “[G]eneralized claims of a possible safety risk do not satisfy the [plaintiffs’] burden of proving the appli