Burton v. Freedom of Information Commission

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 NANCY BURTON v. FREEDOM OF INFORMATION
COMMISSION ET AL.
(AC 36821)
Gruendel, Alvord and Mullins, Js.
Argued September 11—officially released December 15, 2015

(Appeal from Superior Court, judicial district of New
Britain, Prescott, J.; Young, J.)
Nancy Burton, self-represented, the appellant
(plaintiff).
Kirsten S. P. Rigney, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellee (defendant Commissioner of
Energy and Environmental Protection).
 Opinion

GRUENDEL, J. The sole issue in this appeal is
whether the plaintiff, Nancy Burton, had standing to
appeal from a decision of the Freedom of Information
Commission (commission) declining to impose a civil
penalty against the defendant Daniel Esty, then Com-
missioner of Energy and Environmental Protection.1 We
conclude that the plaintiff lacked standing and affirm
the trial court’s judgment dismissing the appeal.2
The following undisputed facts are relevant. On
August 23, 2012, the plaintiff e-mailed the defendant a
request pursuant to the Freedom of Information Act
(FOIA) (§ 1-200 et seq.), for all records held by the
Department of Energy and Environmental Protection
concerning the operation of Millstone Nuclear Power
Station during two of the hotter months (July and
August) of that year. FOIA requires a response within
four business days; see General Statutes § 1-206 (a);
and the defendant did not timely reply. On September
4, 2012, the plaintiff filed a complaint with the com-
mission.
The commission held hearings in February and April
of 2013, at which the plaintiff presented testimony,
exhibits and argument, asking the commission to
impose a civil penalty against the defendant for his
alleged violation of FOIA. The commission had the
power to impose a civil penalty, as the relevant provi-
sion of FOIA lists several ordinary forms of relief the
commission ‘‘may’’ provide then states that ‘‘[i]n addi-
tion . . . the commission may, in its discretion,
impose . . . a civil penalty of not less than twenty dol-
lars nor more than one thousand dollars,’’ payable to the
state, against public officials who violate FOIA without
reasonable grounds, or against litigants who pursue
frivolous FOIA complaints solely to harass an agency.
(Emphasis added.) General Statutes § 1-206 (b) (2).
In June, 2013, the commission issued a decision hold-
ing that the defendant had violated FOIA by failing to
timely reply to the plaintiff’s FOIA request. The commis-
sion found that although the defendant had not replied
in time, he had given the plaintiff the records she sought
in October, 2012, one and one-half months after her
request and four months before the first commission
hearing. The commission found that the defendant had
since established and reviewed protocols to ensure
future compliance with FOIA. After considering the
entire record, the commission ordered that: ‘‘[h]ence-
forth, the [defendant] shall comply promptly with
[FOIA].’’ The commission did not order the defendant
to turn over any additional documents, having found
that he had already complied in October, 2012, and it
did not impose a civil penalty against the defendant.
The plaintiff appealed to the Superior Court, stating
that ‘‘[t]he [commission] acted arbitrarily, capriciously
and illegally in declining to impose a civil penalty or
other relief as requested by the plaintiff in that: (a)
The record revealed sufficient and proper cause for
imposition of a civil penalty; and (b) [t]he [commission]
erred in [not] ordering a complete record (to wit, the
compelled testimony of [the defendant]) to provide an
appropriate record for the [commission’s] consider-
ation of a civil penalty.’’ The defendant moved to dis-
miss the plaintiff’s appeal on the ground that she lacked
standing to challenge the commission’s failure to
impose a civil penalty. The court granted the defen-
dant’s motion. The plaintiff then appealed to this court,
raising the issue of whether she ‘‘lack[ed] standing to
appeal the [commission’s] decision sustaining her
appeal to it but denying the remedy sought, a civil
penalty.’’3
We begin with the standard of review. As this appeal
arises from a motion to dismiss, the question is whether
the pleadings, if presumed true and construed in favor
of the plaintiff, set forth sufficient facts to establish that
the plaintiff had standing. See Connecticut Independent
Utility Workers, Local 12924 v. Dept. of Public Utility
Control, 312 Conn. 265, 273, 92 A.3d 247 (2014). That
question is one of law, over which our review is ple-
nary. Id.
The requirement that a party have standing is funda-
mental. ‘‘[A] party must have standing to assert a claim
in order for the court to have subject matter jurisdiction
over the claim.’’ (Internal quotation marks omitted.)
Lewis v. Slack, 110 Conn. App. 641, 643, 955 A.2d 620,
cert. denied, 289 Conn. 953, 961 A.2d 417 (2008). ‘‘Stand-
ing is the legal right to set judicial machinery in motion.
One cannot rightfully invoke the jurisdiction of the
court unless he [or she] has, in an individual or represen-
tative capacity, some real interest in the cause of action,
or a legal or equitable right, title or interest in the subject
matter of the controversy.’’ (Internal quotation marks
omitted.) Sadloski v. Manchester, 228 Conn. 79, 84, 634
A.2d 888 (1993), on appeal after remand, 235 Conn. 637,
668 A.2d 1314 (1995). ‘‘[T]he court has a duty to dismiss,
even on its own initiative, any appeal that it lacks juris-
diction to hear. . . . Where a party is found to lack
standing, the court is consequently without subject mat-
ter jurisdiction to determine the cause.’’ (Citation omit-
ted; internal quotation marks omitted.) Lewis v. Slack,
supra, 643–44.
Standing may derive from either classical or statutory
aggrievement. Andross v. West Hartford, 285 Conn. 309,
322, 939 A.2d 1146 (2008). Aggrievement is also
expressly required by the statutes that govern a FOIA
appeal. See General Statutes § 1-206 (d) (‘‘[a]ny party
aggrieved by the decision of said commission may
appeal therefrom, in accordance with the provisions of
section 4-183’’ [emphasis added]); General Statutes § 4-
183 (a) (‘‘[a] person who has exhausted all administra-
tive remedies available within the agency and who is
aggrieved by a final decision may appeal to the Superior
Court as provided in this section’’ [emphasis added]).
We address each type of aggrievement in turn.
I
Classical aggrievement is the ordinary judicial analy-
sis of whether the facts alleged include conduct that
has injured or likely will injure a specific, personal,
legal interest of the party. McWeeny v. Hartford, 287
Conn. 56, 64, 946 A.2d 862 (2008); see also Kelly v.
Freedom of Information Commission, 221 Conn. 300,
308–309, 603 A.2d 1131 (1992) (applying classical
aggrievement test in FOIA appeal). Here, the question
is whether the commission’s decision not to impose a
civil penalty against the defendant injured a specific,
personal, legal interest of the plaintiff. We conclude
that it did not. Even if we assume, without deciding,
that an agency’s failure to impose a civil penalty against
a party’s opponent can aggrieve the party, it does not
do so where, as here, the underlying statute grants the
party no right to that penalty as a remedy.
A
At the threshold, this case presents a novel issue
under Connecticut law—whether an agency’s failure to
impose a civil penalty against a party’s opponent can
ever aggrieve that party when the penalty is payable
not to her but to the state. We do not resolve this
broad issue and instead decide the case on the narrower
ground that, at a minimum, a party is not aggrieved if
the underlying statute granted her no right to the civil
penalty as a remedy.
Two federal cases, which discuss the broader issue
in the context of standing under article three of the
United States constitution, also offer guidance on the
narrower issue. We note that we ‘‘are not required to
apply federal precedent in determining the issue of
aggrievement.’’ Mystic Marinelife Aquarium, Inc. v.
Gill, 175 Conn. 483, 494, 400 A.2d 726 (1978). Neverthe-
less, standing under federal law often informs our dis-
cussion of standing under Connecticut law.4 See, e.g.,
id., 492–94 (quoting various federal cases); Andross v.
West Hartford, supra, 285 Conn. 328–29 (same); Con-
necticut Associated Builders & Contractors v. Hart-
ford, 251 Conn. 169, 185, 740 A.2d 813 (1999) (noting
that Connecticut has adopted federal test for represen-
tational standing); but see State v. McElveen, 261 Conn.
198, 212, 802 A.2d 74 (2002) (rejecting federal mootness
test in favor of more liberal standard); Andross v. West
Hartford, supra, 329–35 (rejecting federal expansion of
standing to permit widely shared injury in fact).
In the first case, the court held that a plaintiff lacked
standing to seek a civil penalty against a company for
violations of a federal statute where those violations
had wholly ceased by the time the complaint was filed.
Steel Co. v. Citizens for a Better Environment, 523 U.S.
83, 105–106, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998).
The statute in that case expressly included the civil
penalty in the category of ‘‘[r]elief’’ that a citizen plaintiff
could seek.5 See 42 U.S.C. § 11046 (c).
In the second case, the court held that a plaintiff had
standing to seek a civil penalty against a company for
violations of a federal statute, where those violations
were ongoing at the time the complaint was filed.
Friends of the Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc., 528 U.S. 167, 188–89, 120 S. Ct.
693, 145 L. Ed. 2d 610 (2000). The statute in that case,
while containing no section expressly labeled ‘‘relief,’’
included the civil penalty without distinction in a sen-
tence listing forms of relief, at the end of the subsection
defining the citizen plaintiff’s cause of action; it also
used language very similar to that of the statute in Steel
Co.6 See 33 U.S.C. § 1365 (a).
Both of these cases assumed that Congress intended
the relevant statute to grant the citizen plaintiff a right
to the civil penalty as a remedy. Indeed, the majority
in Friends of the Earth, Inc., relied heavily on legislative
history to that effect. See Friends of the Earth, Inc., v.
Laidlaw Environmental Services, (TOC), Inc., supra,
528 U.S. 185.
In light of these cases, we assume without deciding
the broader issue—that, under Connecticut law, an
agency’s failure to impose a civil penalty against a par-
ty’s opponent can aggrieve the party. We now hold,
under Connecticut law, that at a minimum, if a statute
does not grant a party the right to seek a civil penalty
as a remedy, then that party is not aggrieved by an
agency’s failure to impose the penalty against her oppo-
nent. This holding is in accord with federal precedent
and is a logical extension of our traditional rule that a
plaintiff must have a ‘‘legal interest’’ in the relief sought.
See McWeeny v. Hartford, supra, 287 Conn. 64.
B
Turning then to the plaintiff’s claim, we conclude that
although she has alleged violations of FOIA that were
ongoing at the time she filed her complaint, she still is
not aggrieved by the commission’s nonimposition of
a civil penalty because Connecticut’s FOIA does not
authorize citizen plaintiffs to seek a civil penalty as a
remedy. The plaintiff thus has no legal interest at stake.
Whereas the statutes in Steel Co. and Friends of the
Earth, Inc., either labeled the civil penalty explicitly as
one form of ‘‘relief’’ a citizen plaintiff could seek, or
labeled it implicitly by grouping it without distinction
with the other forms of relief a citizen plaintiff could
seek, the Connecticut FOIA is different. It lays out two
groups of actions the commission may take in a case.7
First, the commission ‘‘may’’ confirm an agency action,
declare void certain agency actions, and order produc-
tion or copying of public records. General Statutes § 1-
206 (b) (2). This first group is separated from a second
group by the words ‘‘[i]n addition.’’ Second, the commis-
sion ‘‘may, in its discretion,’’ impose a civil penalty
against agency officials who violate FOIA without rea-
sonable grounds or citizen plaintiffs who use FOIA
solely to harass agencies. (Emphasis added.) General
Statutes § 1-206 (b) (2). The text of Connecticut’s FOIA
thus delineates two groups of actions the commission
may take: (1) ordinary relief a party may seek; and (2)
additional tools that the commission may employ as
necessary, in its discretion, but to which neither party
has a legal right or interest.
There is one exception to this pattern. Section 1-
206 (b) (2) includes one instance of the ‘‘may, in its
discretion’’ language in the first group, stating that the
commission ‘‘may . . . order the agency to provide
relief that the commission, in its discretion, believes
appropriate to rectify the denial of any right conferred
by the Freedom of Information Act.’’ (Emphasis added.)
General Statutes § 1-206 (b) (2). We do not believe that
this negates the overall pattern, for three reasons.
First and most importantly, the ‘‘may . . . order’’
clause twice paints the commission action it authorizes
as ‘‘relief,’’ both explicitly, by calling it ‘‘relief,’’ and,
implicitly, by stating that such action is ‘‘to rectify the
denial of any right’’ under FOIA. The two civil penalty
clauses in the second group lack such language.
Second, on a more technical level, the syntax of the
‘‘may . . . order’’ clause differs from that of the two
civil penalty clauses. Whereas the two civil penalty
clauses directly state that imposing a penalty is ‘‘in [the
commission’s] discretion,’’ the ‘‘may . . . order’’
clause uses the ‘‘in its discretion’’ language to modify
not the primary clause authorizing the commission to
order relief but rather the dependent clause qualifying
such relief as that which ‘‘the commission, in its discre-
tion, believes appropriate . . . .’’ (Emphasis added.)
General Statutes § 1-206 (b) (2). The ‘‘in its discretion’’
language in the ‘‘may . . . order’’ clause thus seems to
serve a different role, authorizing the commission to
pursue a wide range of injunctive remedies rather than
separating out relief from nonrelief.
Third and finally, the injunctive relief authorized by
the ‘‘may . . . order’’ clause is a traditional remedy,
whereas a civil penalty payable to the state is not. See
Steel Co. v. Citizens for a Better Environment, supra,
523 U.S. 105–106 (civil penalties ‘‘would [not] serve to
reimburse [defendant] for losses caused by the late
reporting, or to eliminate any effects of that late
reporting upon the [defendant]’’). We are thus reluctant
to infer that the civil penalty is a remedy without strong
evidence that the legislature intended it to be one. Here,
the overall text and structure of § 1-206 (b) (2) rein-
forces the notion that the injunction is a remedy but
the penalty is not.
Within this overall framework of FOIA relief versus
FOIA discretionary tools, the civil penalty that the plain-
tiff seeks here falls into the second category—discre-
tionary tools. She has no right to it as a remedy. The
commission’s decision not to impose it thus violates
no legal interest of the plaintiff. She is not classically
aggrieved.8
II
The other type of aggrievement that may establish
standing is statutory aggrievement. Unlike classical
aggrievement, statutory aggrievement exists by legisla-
tive fiat—where the legislature has enacted a statute
that confers standing on anyone who falls within a
certain group. McWeeny v. Hartford, supra, 287 Conn.
64–65. We conclude that the plaintiff is not statutorily
aggrieved under any of the statutes she cites.
The quintessential example of statutory aggrievement
is in the zoning context, where General Statutes § 8-8
confers statutory standing to appeal from a zoning
board decision on anyone who owns property within
one hundred feet of the zoned land.9 Abel v. Planning &
Zoning Commission, 297 Conn. 414, 428, 998 A.2d 1149
(2010), legislatively overruled on other grounds by Pub-
lic Act No. 12-146 to specify that this standing require-
ment only applies to Connecticut landowners.10
Similarly, the Connecticut Environmental Protection
Act of 1971, General Statutes § 22a-14 et seq., confers
statutory standing to intervene in any agency proceed-
ing or judicial review thereof on anyone who files a
complaint alleging that the proceeding involves conduct
likely to pollute natural resources.11
The plaintiff cites various provisions in Connecticut’s
Uniform Administrative Procedure Act, General Stat-
utes § 4-166 et seq., and FOIA that allegedly grant her
statutory standing to appeal from the commission’s non-
imposition of a civil penalty. All provisions that she
cites, but one, are inapposite because they concern not
standing but rather remedies or substantive grounds for
reversal. See General Statutes § 4-183 (j) (substantive
grounds on which Superior Court may reverse agency
decision); General Statutes § 4-183 (k) (remedies avail-
able if Superior Court reverses agency decision); Gen-
eral Statutes § 1-206 (b) (2) (remedies available if
commission reverses agency decision).
The last provision she cites is inapposite for a differ-
ent reason—it concerns standing to appeal to the com-
mission from an agency decision to withhold records.
See General Statutes § 1-206 (b) (1). That is not the
issue before us. Standing to file a complaint with the
commission does not automatically grant a person
standing to appeal from the commission’s decision to
the Superior Court. Connecticut Independent Utility
Workers, Local 12924 v. Dept. of Public Utility Control,
supra, 312 Conn. 280 (‘‘[m]ere status . . . as a party
or a participant in a hearing before an administrative
agency does not in and of itself constitute aggrievement
for the purposes of appellate review’’ [internal quotation
marks omitted]). The plaintiff has failed to cite any
statutory provision giving her standing to appeal to the
Superior Court from the commission’s failure to impose
a civil penalty. Accordingly, she has not established
that she is statutorily aggrieved.
III
Because the plaintiff has established neither classical
nor statutory aggrievement, she lacks standing to
appeal from the commission’s failure to impose a civil
penalty. See Andross v. West Hartford, supra, 285 Conn.
322–24. We thus affirm the judgment of dismissal. ‘‘[T]he
court has a duty to dismiss, even on its own initiative,
any appeal that it lacks jurisdiction to hear. . . . Where
a party is found to lack standing, the court is conse-
quently without subject matter jurisdiction to determine
the cause.’’ (Citation omitted; internal quotation marks
omitted.) Lewis v. Slack, supra, 110 Conn. App. 643–44.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the Freedom of Information Commission is also a defendant
on appeal, in this opinion our references to the defendant are to Daniel
Esty, who alone moved to dismiss the appeal for lack of standing.
2
The plaintiff raised a second claim in her objection to the defendant’s
motion to dismiss before the Superior Court and in her reply brief before
this court, namely, that she had not received all the documents from her
Freedom of Information Act request. She failed, however, to distinctly raise
this claim in the first instance in either her appeal from the commission to
the Superior Court, or her appeal from the Superior Court to this court,
both of which sought only ‘‘a civil penalty’’ or additional hearings ‘‘to
provide an appropriate record for the [commission’s] consideration of a
civil penalty.’’ (Emphasis added.) We thus decline to review the plaintiff’s
missing documents claim. See Hurley v. Heart Physicians, P.C., 298 Conn.
371, 378 n.6, 3 A.3d 892 (2010) (issue inadequately briefed when delineated
only in reply brief).
3
The court dismissed the plaintiff’s appeal from the commission’s decision
on two grounds: (1) lack of standing; and (2) lack of ripeness. The plaintiff
properly raised both grounds in her appeal to this court. We do not address
ripeness, however, because our conclusion that the plaintiff lacked standing
disposes of the appeal.
4
Admittedly, the United States Supreme Court analyzes the issue slightly
differently from the way it is done by Connecticut courts. Whereas we ask
if the agency decision has injured a legal interest of the plaintiff, the United
States Supreme Court asks if reversing the agency decision would redress
the underlying injury to the plaintiff. Compare Handsome, Inc. v. Planning &
Zoning Commission, 317 Conn. 515, 524–26, 119 A.3d 541 (2015), with
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,
528 U.S. 167, 185–87, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000).
5
42 U.S.C. § 11046 (c) provides in relevant part: ‘‘Relief. The district court
shall have jurisdiction . . . to enforce the [reporting] requirement con-
cerned and to impose any civil penalty provided for violation of that require-
ment. The district court shall have jurisdiction . . . to order the
Administrator to perform the act or duty concerned.’’
6
33 U.S.C. § 1365 (a) provides in relevant part: ‘‘Authorization; jurisdiction
. . . . [A]ny citizen may commence a civil action on his own behalf—(1)
against any person . . . alleged to be in violation of (A) an effluent standard
or limitation under this chapter or (B) an order issued by the Administrator
or a State with respect to such a standard or limitation, or (2) against the
Administrator where there is alleged a failure of the Administrator to perform
any act or duty under this chapter which is not discretionary . . . . The
district courts shall have jurisdiction . . . to enforce such an effluent stan-
dard or limitation, or such an order, or to order the Administrator to perform
such act or duty, as the case may be, and to apply any appropriate civil
penalties under section 1319 (d) of this title.’’
7
General Statutes § 1-206 (b) (2) provides: ‘‘In any appeal to the Freedom
of Information Commission under subdivision (1) of this subsection or
subsection (c) of this section, the commission may confirm the action of
the agency or order the agency to provide relief that the commission, in its
discretion, believes appropriate to rectify the denial of any right conferred
by the Freedom of Information Act. The commission may declare null and
void any action taken at any meeting which a person was denied the right
to attend and may require the production or copying of any public record.
In addition, upon the finding that a denial of any right created by the Freedom
of Information Act was without reasonable grounds and after the custodian
or other official directly responsible for the denial has been given an opportu-
nity to be heard at a hearing conducted in accordance with sections 4-176e
to 4-184, inclusive, the commission may, in its discretion, impose against
the custodian or other official a civil penalty of not less than twenty dollars
nor more than one thousand dollars. If the commission finds that a person
has taken an appeal under this subsection frivolously, without reasonable
grounds and solely for the purpose of harassing the agency from which the
appeal has been taken, after such person has been given an opportunity to
be heard at a hearing conducted in accordance with sections 4-176e to 4-
184, inclusive, the commission may, in its discretion, impose against that
person a civil penalty of not less than twenty dollars nor more than one
thousand dollars. The commission shall notify a person of a penalty levied
against him pursuant to this subsection by written notice sent by certified
or registered mail. If a person fails to pay the penalty within thirty days of
receiving such notice, the superior court for the judicial district of Hartford
shall, on application of the commission, issue an order requiring the person
to pay the penalty imposed. If the executive director of the commission has
reason to believe an appeal under subdivision (1) of this subsection or
subsection (c) of this section (A) presents a claim beyond the commission’s
jurisdiction; (B) would perpetrate an injustice; or (C) would constitute an
abuse of the commission’s administrative process, the executive director
shall not schedule the appeal for hearing without first seeking and obtaining
leave of the commission. The commission shall provide due notice to the
parties and review affidavits and written argument that the parties may
submit and grant or deny such leave summarily at its next regular meeting.
The commission shall grant such leave unless it finds that the appeal: (i)
Does not present a claim within the commission’s jurisdiction; (ii) would
perpetrate an injustice; or (iii) would constitute an abuse of the commission’s
administrative process. Any party aggrieved by the commission’s denial of
such leave may apply to the superior court for the judicial district of Hartford,
within fifteen days of the commission meeting at which such leave was
denied, for an order requiring the commission to hear such appeal.’’
8
In support of her argument that she is aggrieved, the plaintiff cites only
one case—Kaz v. Freedom of Information Commission, Superior Court,
judicial district of New Britain, Docket No. CV-00-05039425-S (June 26, 2001).
That case is neither binding nor relevant. First, trial court decisions do not
bind this court. LaSalle National Bank v. Freshfield Meadows, LLC, 69
Conn. App. 824, 831 n.2, 798 A.2d 445 (2002). Second, the court in Kaz held
only that the commission’s denial of ‘‘civil penalties and access to [requested
documents]’’ constituted aggrievement. (Emphasis added.) Kaz v. Freedom
of Information Commission, supra. Nowhere did the court say that the
commission’s nonimposition of a civil penalty alone could constitute
aggrievement, which is the issue here.
9
General Statutes § 8-8 (b) provides in relevant part: ‘‘[A]ny person
aggrieved by any decision of a [zoning] board . . . may take an appeal to
the superior court,’’ and § 8-8 (a) (1) provides in relevant part that
‘‘ ‘aggrieved person’ includes any person owning land in this state that abuts
or is within a radius of one hundred feet of any portion of the land involved
in the decision of the board.’’
10
Section 8-8 (a) was amended by No. 12-146, § 1, of the 2012 Public Acts,
which made technical changes to the statute that are not relevant to this
appeal. For purposes of clarity, we refer to the current revision of the statute.
11
General Statutes § 22a-19 (a) (1) provides in relevant part: ‘‘In any admin-
istrative, licensing or other proceeding, and in any judicial review thereof
made available by law . . . any person . . . may intervene as a party on
the filing of a verified pleading asserting that the proceeding or action for
judicial review involves conduct which has, or which is reasonably likely
to have, the effect of unreasonably polluting, impairing or destroying the
public trust in the air, water or other natural resources of the state.’’