Van Norstrand v. Freedom of Information Commission

Peters, C. J.,

dissenting in part. Although I agree with the majority opinion’s analysis of General Statutes § 1-19 (c) (1), I am unpersuaded that the original unexpurgated survey of the judges, which the plaintiff, R.E. Van Norstrand, commissioned in his role as member and speaker of the House of Representatives, qualifies for an exemption under General Statutes § 1-19 (b) (1). Since eligibility for that exemption is essential to upholding the plaintiff’s position, I respectfully dissent from the judgment of the court.

The plaintiff maintains, and the majority opinion concludes, that his survey of judges was not subject to public disclosure under the Freedom of Information Act (FOIA); General Statutes §§ 1-15, l-18a, 1-19 through *3491-19b, 1-21, 1-21a and 1-21c through 1-21k; because it qualified for the exemption contained in § 1-19 (b) (1) for “preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.” In construing this exemption, we do not write on a clean slate. The overarching policy of the FOIA favors disclosure of public records. To implement this policy, exceptions to the rule of public disclosure are to be narrowly construed, and the agency claiming an exemption bears the burden of proving its applicability. Commissioner of Consumer Protection v. Freedom of Information Commission, 207 Conn. 698, 701, 542 A.2d 321 (1988); Hartford v. Freedom of Information Commission, 201 Conn. 421, 431, 518 A.2d 49 (1986); Maher v. Freedom of Information Commission, 192 Conn. 310, 315, 472 A.2d 321 (1984); Wilson v. Freedom of Information Commission, 181 Conn. 324, 328-29, 435 A.2d 353 (1980).

In my view, the majority opinion misconstrues, in two respects, the exemption contained in § 1-19 (b) (1). First, the exemption requires the plaintiff to demonstrate not only that the document in question was preliminary to a subsequent document, but also that the document falls within the class of documents that can reasonably be characterized as being “drafts” or “notes.” Second, the exemption requires the plaintiff to show that he has undertaken an objective rather than a subjective balancing process to determine that the public interest is clearly served by nondisclosure of the document in question.

The majority opinion reads the statutory phrase “preliminary drafts” as a unitary requirement, rather than as a duality, requiring a showing that the document is both “preliminary” and a “draft.” Such a construction is, I believe, unwarranted. Facially, § 1-19 (b) (1) refers to “drafts,” “notes” and “documents.” We should not *350presume that the legislature intended to make equivalents out of these independent reference points. “In examining . . . statutory requirements ... we must consider the statutory scheme as a whole, giving meaning to every section, and assuming no word or phrase to be superfluous.” Berger v. Tonken, 192 Conn. 581, 589, 473 A.2d 782 (1984); see State v. Parmalee, 197 Conn. 158,162, 496 A.2d 186 (1985); State v. Freedom of Information Commission, 184 Conn. 102, 107, 441 A.2d 53 (1981); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 14, 434 A.2d 293 (1980). Indeed, the use of the final phrase “such documents” implies that only documents that are “drafts” or “notes” qualify for the § 1-19 (b) (1) exemption. I am unpersuaded that a completed poll, even one designed solely to validate the legitimacy of data contained in a part thereof, can reasonably be characterized as a “draft.” I am also unpersuaded that Wilson v. Freedom of Information Commission, supra, compels a different result. As the commission notes, the legislative history surrounding the subsequent enactment of § 1-19 (c) (1) signals the legislature’s disavowal of Wilson’s expansive construction of “preliminary drafts or notes” as encompassing generally “that aspect of the agency’s function that precedes formal and informed decisionmaking.”1 Wilson v. Freedom of Information Commission, supra, 332-33.

Even if the unexpurgated poll were properly characterized as a “preliminary draft,” such a characterization, as the majority opinion recognizes, does not per se justify withholding of the document from the public. Under § 1-19 (b) (1), public disclosure of the origi*351nal document is still required unless “the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.” I agree that this provision locates the authority to undertake the statutory balancing test in the public agency, in this case the plaintiff, rather than in the commission. Nonetheless, it seems to me inconsistent with the policy of the act, and the limited place it assigns to exemptions, to permit the public agency to validate the balancing process in accordance with a standard of good faith, rather than in accordance with a more objective cost-benefit analysis. The importation of a good faith standard would give to a public agency a breadth of discretion that is difficult to reconcile with the agency’s burden of establishing its entitlement to a § 1-19 (b) (1) exemption. Concomitantly, such a standard would severely limit the commission’s capacity to review the legitimacy of an agency’s exercise of its balancing authority. The legislature has nowhere indicated that, in this one instance, it intended to deprive the commission of its primary role as FOIA factfinder. New Haven v. Freedom of Information Commission, 205 Conn. 767, 775-76, 535 A.2d 1297 (1988); Hartford v. Freedom of Information Commission, supra, 434-35. The record in this case, however, persuades me that the plaintiff made an objectively valid determination not to release the unexpurgated judges’ poll, and I therefore concur in the majority opinion’s judgment that the plaintiff satisfied his burden of proof on this issue.

For the reasons stated above, I respectfully dissent.

For relevant commentary by the sponsors of Public Acts 1981, No. 81-431, which was later codified as General Statutes § 1-19 (c) (1), see the remarks of Senator Wayne A. Baker, 24 S. Proc., Pt. 17, 1981 Sess., pp. 5419-21, and of Representative Joseph Walkovich, 24 H. R. Proc., Pt. 23, 1981 Sess., pp. 7687-88.