III v. Freedom of Information Commission et al. (2013)

FINDINGS AND ORDER REGARDING MOTION TO SEAL

This is an administrative appeal brought by the plaintiff, Stephen J. Sedensky III, State's Attorney for the Judicial District of Danbury, challenging a decision of the Freedom of Information Commission (“Commission”).   The Commission ordered the Chief of Police of the Newtown Police Department and the Newtown Police Department (collectively, the “Newtown respondents”) to provide to Jack Gillum and the Associated Press (collectively, the “AP”) copies of audio recordings of 911 calls made from Sandy Hook Elementary School on that tragic morning when twenty schoolchildren and six teachers were murdered by a gunman in Newtown, Connecticut.   The Newtown respondents have been permitted to intervene as plaintiffs in this appeal.

On November 7, 2013, the Commission filed a motion pursuant to Practice Book §§ 7–4B, 7–4C, and 11–20A, to lodge and file under seal a copy of the audio recordings of the 911 calls that are at issue in this appeal.   The records were then lodged with the court.

The court makes the following findings with respect to this motion.

1. The Commission's motion to seal the audio recordings was filed not less than fourteen days before a hearing on the motion.   The motion appeared on the short calendar and notice of the hearing was posted on the judicial branch's website in compliance with the requirements of Practice Book § 11–20A.

2. The audio recordings were reviewed in camera by the hearing officer assigned by the Commission to preside over the administrative proceeding below.   The audio recordings have not been released publicly and if the plaintiff prevails in this appeal, would not have to be released to the public.

3. On October 30, 2013, the plaintiff filed this administrative appeal pursuant to General Statutes § 4–183(j), with a return date of November 19, 2013.   Upon filing of his appeal, the plaintiff immediately moved for a stay of the Commission's decision ordering release of the audio recordings.   On October 31, 2013, this court issued an order scheduling a hearing on the plaintiff's motion for stay on November 8, 2013.   Because the return date had not yet passed, this court also ordered the plaintiff to serve a copy of the court's order on all parties who participated in the Commission's proceeding below.

4. On November 8, 2013, the court held a lengthy hearing on the motion to stay.   All of the parties to the Commission's proceedings below appeared and participated in the hearing.   The filing of an administrative appeal pursuant to the Uniform Administrative Procedures Act does not automatically stay the enforcement of the agency decision.  General Statutes § 4–183(f).  Instead, an aggrieved party may seek a stay from the agency or from the court.   Any stay, if granted, shall be on appropriate terms.   Id., § 4–183(f).

5. The decision whether to issue a stay rests within the sound discretion of the court.   In exercising this discretion, the court is directed to balance the equities, and in doing so, consider:  (1) the likelihood that the appellant will prevail;  (2) the irreparability of the injury to be suffered from immediate implementation of the agency's decision;  (3) the effect of a stay on the other parties in the proceeding and (4) the public interest involved.   Griffin Hospital v. Commission on Hospitals & Health Care, 196 Conn. 451, 458–60, 493 A.2d 229 (1985).

6. The Commission and the AP assert that the court should listen to the audio recordings prior to deciding the motion for stay because it will assist the court in assessing the plaintiff's likelihood of success on the merits and the equities in deciding whether to grant a stay.   At oral argument, the plaintiff indicated that although he did not believe that it was necessary for the court to listen to the audio recording, he did not object to the court doing so.

7. The court concurs with the Commission and the AP that it is necessary to listen to the audio recording in order to decide whether the plaintiff's application for stay should be granted pending final resolution of this administrative appeal.

8. General Statutes § 1–206(d) provides in relevant part:  “Notwithstanding the provisions of section 4–183, in any ․ appeal of a decision of the [freedom of information] commission, the court may conduct an in camera review of the original or a certified copy of the records which are at issue in the appeal but were not included in the record of the commission's proceedings, admit the records into evidence and order the records to be sealed or inspected on such terms as the court deems fair and appropriate, during the appeal.”

9. The plaintiff has an overriding interest in maintaining the confidentiality of the audio recordings at least until such time as the court issues a decision on the plaintiff's motion to stay the Commission's decision ordering the release of the recordings.

10. Our legislature has recognized in General Statutes § 1–206(d) the importance of protecting the confidentiality of records that are at issue in a freedom of information appeal until such time as the court can act upon a motion to stay an order of the commission or decides the merits of the appeal.   The Practice Book also permits the sealing of records by the court when it “is necessary to preserve an interest which is determined to override the public's interest in viewing such materials.”  Practice Book § 11–20A(c).

11. In accordance with Practice Book § 11–20A and General Statutes § 1–206(d), and after considering reasonable alternatives, the Court concludes that a sealing order is necessary to preserve the confidentiality of the audio recordings pending the court's resolution of the plaintiff's motion for stay and/or its decision on the merits.   The court further concludes that the plaintiff's interest in preserving the confidentiality of the audio recordings until such time as his motion for stay can be fairly adjudicated outweighs the public's interest in immediate access to such information.

12. To make that determination of whether a stay of the Commission's decision should be granted without first protecting the confidentiality of the audio recording would vitiate a decision to stay the Commission's decision, if the Court concludes that issuance of a stay is warranted.

13. Accordingly, having satisfied the requirements of Connecticut Practice Book § 11–20 and § 11–20A, the Commission's motion to file the audio recordings under seal is GRANTED.

14. This order shall remain in effect until further order of this Court.

SO ORDERED

Prescott, J.

Prescott, Eliot D., J.