Commissioner of Consumer Protection v. Freedom of Information Commission

542 A.2d 321, 207 Conn. 698, 1988 Conn. LEXIS 156
CourtSupreme Court of Connecticut
DecidedJune 7, 1988
Docket13233; 13234
StatusPublished
Cited by6 cases

This text of 542 A.2d 321 (Commissioner of Consumer Protection v. Freedom of Information Commission) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commissioner of Consumer Protection v. Freedom of Information Commission, 542 A.2d 321, 207 Conn. 698, 1988 Conn. LEXIS 156 (Colo. 1988).

Opinion

Glass, J.

This is an appeal from a decision of the trial court, M. Hennessey, J., reversing a decision of the freedom of information commission (FOIC), wherein the FOIC had ordered that the named plaintiff,1 the commissioner of consumer protection (commissioner), provide the defendants, The Jackson Newspapers, Inc. (Jackson Newspapers), and Joan Barbuto, with access to records regarding the distribution of controlled substances by physicians.

The underlying facts relating to this appeal are not in dispute. On April 11,1984, Joan Barbuto, a reporter for the Jackson Newspapers, wrote to the commissioner, seeking disclosure of all documents generated by compliance meetings held within the last five years pursuant to General Statutes § 4-182 (c). A compliance meeting is held when an investigation by drug control agents of the department of consumer protection reveals evidence supporting the revocation of a physician’s drug registration. The compliance meeting provides a physician with the opportunity to show that the drug control agent’s report is without foundation, and is designed to foster voluntary settlements between physicians and the department of consumer protection so as to avoid the need for formal adjudicatory proceedings.

The commissioner refused to disclose all of the information sought by Barbuto. Barbuto and Jackson Newspapers filed a formal complaint with the FOIC. After a hearing, the FOIC issued a decision ordering [700]*700the commissioner to provide Barbuto and Jackson Newspapers with the requested material. The commissioner appealed that decision to the Superior Court, which sustained the appeal.

On appeal to this court, the FOIC, Jackson Newspapers and Barbuto claim that the trial court erred in holding that: (1) the Freedom of Information Act (act), General Statutes § 1-19, permits the nondisclosure of records generated by compliance meetings; (2) General Statutes § 2 la-3062 is applicable to compliance meetings held pursuant to General Statutes §§ 2 la-3233 and 4-182 (c);4 and (3) compliance meetings are not proceedings involving the question of licensure or right to practice. We find no error.

The defendants’ first claim is that the trial court erred in holding that the act permits the nondisclosure of records generated by compliance meetings. We agree.

[701]*701The trial court found that the act provided a basis for the exemption of the documents in question by balancing the public’s right to have access to the information requested by Barbuto with the governmental need for confidentiality, relying on Wilson v. Freedom of Information Commission, 181 Conn. 324, 435 A.2d 353 (1980). The trial court found that the Wilson balancing test supported the exemption of the documents generated by the compliance meetings. The trial court erred in applying the balancing test to the act as a whole.

In Maher v. Freedom oflnformation Commission, 192 Conn. 310, 315, 472 A.2d 321 (1984), we stated that “[t]he exemptions contained in § 1-19 reflect ‘a legislative intention to balance the public’s right to know what its agencies are doing, with the governmental and private needs for confidentiality. . . . [I]t is this balance of the governmental needs for confidentiality with the public right to know that must govern the interpretation and application of the Freedom of Information Act. The general rule, under the act, however, is disclosure. . . . Exceptions to that rule will be narrowly construed in light of the underlying purpose of the act . . . and the burden of proving the applicability of an exemption rests upon the agency claiming it.’ [Wilson v. Freedom of Information Commission, supra, 328-29].” Thus, Maher clarifies the fact that the Wilson balancing test applies to the exemptions to § 1-19, rather than to the act as a whole. See also State v. Januszewski, 182 Conn. 142, 170-71, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).

Although there is no inherent exemption from disclosure under the act, the possibility exists that the information may fall within the state or federal law exception to § 1-19. Section 1-19 (a) provides that “[e]xcept as otherwise provided by any federal law or [702]*702state statute, all records maintained or kept on file by any public agency . . . shall be public records and every person shall have the right to inspect such records . . . Compliance meetings, held pursuant to General Statutes § 4-182, may therefore be exempt from the general rule of disclosure, because General Statutes § 21a-306 provides that “[information received by the . . . state department of consumer protection . . . shall not be disclosed publicly in such a manner as to identify individuals or institutions, except in a proceeding involving the question of licensure or right to practice.”

This brings us to the defendants’ second claim, which concerns the applicability of § 2 la-306 to compliance meetings. The defendants claim that the trial court erred in applying § 21a-306 to compliance meetings held pursuant to General Statutes §§ 21a-323 and 4-182 because: (1) neither § 4-182 (c) nor § 21a-323 is found in the specific chapters mentioned in § 21a-306; and (2) the records in issue are created by the department of consumer protection rather than received by it in the form of filed reports. The plaintiffs maintain that the test for whether information is protected from disclosure under § 21a-306 depends upon the chapter under which the information was collected, rather than the chapter which provides for a proceeding involving licensure. Thus, the plaintiffs argue that chapter 420b, entitled “Dependency-Producing Drugs,” is the authority from which the investigative power in § 21a-306 is derived.

Section 21a-306 further provides: “Information received by the . . . state department of consumer protection . . . through filed reports, inspection or as otherwise authorized under chapters 382 and J/.18 and [chapter 120b] shall not be disclosed publicly in such a manner as to identify individuals or institutions, except in a proceeding involving the question of licensure or right to practice.” (Emphasis added.) This section [703]*703clearly refers to the inspection, record keeping and reporting provisions of those statutes. Chapter 382, pertaining to pharmacists, includes statutes authorizing the employment of inspectors; General Statutes § 20-179; and the preservation of prescription records for inspection. General Statutes § 20-184c. Chapter 418 contains similar provisions relating to food, drugs and cosmetics: investigations, inspections, records; General Statutes § 21a-116; inspection of records; General Statutes § 21a-117; and inspection of premises. General Statutes § 21a-118. Chapter 420b has similar but more restrictive requirements for dependency-producing drugs: record keeping; General Statutes §§ 2la-248, 21a-249; record requirements; General Statutes §§ 21a-254, 21a-255; and inspection of records. General Statutes §§ 21a-261, 21a-265. The plain lanquage of § 21a-306 supports the plaintiffs’ interpretation of the statutes. See Robinson v.

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Bluebook (online)
542 A.2d 321, 207 Conn. 698, 1988 Conn. LEXIS 156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commissioner-of-consumer-protection-v-freedom-of-information-commission-conn-1988.