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*********************************************** 
MICHAEL ARONOW v. FREEDOM OF

INFORMATION COMMISSION

(AC 41297)

Alvord, Sheldon and Bishop, Js.

Syllabus

The plaintiff appealed to this court from the judgment of the trial court

dismissing his appeal from the final decision of the defendant Freedom of

Information Commission. In connection with a whistleblower retaliation

complaint he had filed against his former employer, a health center, the

plaintiff had requested certain records from the health center under the

Freedom of Information Act (act) (§ 1-200 et seq.). After a delay in

receiving the records, the plaintiff filed a complaint in 2014 with the

commission, which was dismissed for lack of jurisdiction on the ground

it had not been timely filed. The plaintiff resubmitted his request for

the records and filed a second complaint with the commission in 2015,

alleging that the health center had violated the act by failing to promptly

provide him with all of the documents he had requested. Thereafter,

the plaintiff appealed from the commission’s decision regarding his 2014

complaint to the Superior Court, which dismissed the plaintiff’s 2014

complaint as moot on the ground that a hearing in the 2015 complaint, in

which he sought the same records, was pending before the commission.

Subsequently, the commission granted the plaintiff’s 2015 complaint in

part and concluded that the health center had violated the act by failing

to comply promptly with the plaintiff’s records requests, and the plaintiff

appealed to the Superior Court, which granted in part the commission’s

motion to dismiss the plaintiff’s appeal as to his first and second claims

and, after further considering the plaintiff’s remaining claims, rendered

judgment dismissing the plaintiff’s appeal. Held:

1. The plaintiff could not prevail on his claim that the trial court improperly

concluded that he was not aggrieved by the commission’s decision not

to impose a civil penalty against the health center; although the plaintiff

acknowledged that this court was bound by Burton v. Freedom of Information Commission (161 Conn. App. 654), which addressed the precise

issue raised in this case and held that the plaintiff in that case was

neither classically nor statutorily aggrieved by the commission’s decision

not to impose a civil penalty because the decision did not violate a legal

interest of the plaintiff and there was no statutory authority that provided

the plaintiff with standing to appeal to the trial court from the commission’s failure to impose such a penalty, the plaintiff here attempted

to distinguish Burton, but his claim was speculative and lacked an

evidentiary foundation, and, therefore, the trial court did not err in

granting the commission’s motion to dismiss the plaintiff’s civil penalty

claim for lack of standing.

2. The trial court properly dismissed the plaintiff’s claim that his 2014 complaint was improperly dismissed on the ground that he was not aggrieved

because the issues raised in that complaint were addressed in his 2015

complaint, the underlying matter in which he ultimately prevailed; contrary to the plaintiff’s assertion, the record indicated that the commission

did take the relevant facts of his 2014 complaint into consideration when

making its decision that the health center had violated the act, as the

commission not only found that the plaintiff’s requests for records were

identical, but it explicitly took administrative notice of the findings of

fact in the 2014 complaint that were relevant to its determination as to

whether the health center had promptly complied, and, therefore, the

plaintiff did not demonstrate how he was aggrieved.

3. The trial court erred in concluding that there was substantial evidence

in the record to support the commission’s finding that the plaintiff had

narrowed the scope of his request under the act with respect to paragraph eleven of his complaint; there was no basis for the commission’s

order narrowing the plaintiff’s request for records as described in the

commission’s final decision, which was inconsistent with the record

and contravened the general policy of openness expressed within the

act, as the record revealed that the plaintiff had requested the health
center to expedite the most time sensitive portion of his request without

excluding the remainder of the records requested.

Argued February 6—officially released May 14, 2019

Procedural History

Appeal from the decision of the defendant, brought

to the Superior Court in the judicial district of New

Britain, where the court, Huddleston, J., granted in part

the defendant’s motion to dismiss; thereafter, the court,

Young, J., dismissed the plaintiff’s appeal, from which

the plaintiff appealed to this court. Dismissed in part;

reversed in part; judgment directed.

Michael Aronow, self-represented, the appellant

(plaintiff).

Kathleen K. Ross, commission counsel, with whom,

on the brief, was Colleen M. Murphy, general counsel,

for the appellee (defendant).
Opinion

BISHOP, J. The self-represented plaintiff, Michael

Aronow,1 appeals from the dismissal by the trial court

of his appeal from the final decision of the defendant

Freedom of Information Commission (commission).

Although, after a hearing, the commission concluded

that the University of Connecticut Health Center (health

center)2 had violated the Freedom of Information Act

(FOIA), General Statutes § 1-200 et seq., in regard to

document requests made by the plaintiff, the plaintiff

appealed to the trial court from the orders and subordinate findings made by the commission. On appeal from

the judgment of the court dismissing his appeal from

the commission, the plaintiff claims that the court erred

in (1) concluding that he was not aggrieved by the

commission’s decision to decline to impose a civil penalty against the health center for the FOIA violation,

(2) dismissing his claim that the commission improperly

dismissed a previous FOIA complaint filed by the plaintiff regarding an earlier document request made to the

health center, (3) concluding that there was substantial

evidence in the record to support the commission’s

finding that the plaintiff had narrowed the scope of his

FOIA request, and (4) concluding that the commission

did not abuse its discretion by affording the health

center nine months to comply with its document production order.

We agree with the court’s conclusions regarding the

plaintiff’s first and second claims, and, accordingly,

affirm the judgment as to those claims. We conclude,

however, that the trial court erred in concluding that

there was substantial evidence to support the commission’s finding that the plaintiff had narrowed the scope

of his original FOIA request in regard to paragraph

eleven of the commission’s final decision.3 Accordingly,

the judgment is reversed in part, and the case is

remanded to the trial court with direction to remand to

the commission with direction to order that the health

center comply expeditiously with the plaintiff’s original

request, as narrowed only by paragraph ten of the commission’s final decision.

The following facts and procedural history are relevant to our resolution of this appeal. In his brief, the

plaintiff alleges that he ‘‘is an orthopaedic surgeon who

formerly worked for [the health center], against whom

he filed a whistleblower retaliation complaint before

the Commission on Human Rights and Opportunities’

Office of Public Hearings on November 14, 2012 (OPH/

WBR No. 2012-208), which [has been] in the damages

phase’’ since he received a favorable decision on liability. Additionally, on March 31, 2012, the plaintiff separated from the health center under disputed

circumstances. In his whistleblower complaint against

the health center pursuant to General Statutes § 4-61dd,

the plaintiff alleged, inter alia, that the health center
took retaliatory actions leading to his separation in

response to certain actions he had previously taken

that caused him to fall out of favor with health center

supervisory personnel, such as his filing of a grievance.4

These allegations are supported by proceedings from

which we take judicial notice.5

On August 19, 2013, the plaintiff e-mailed a FOIA

request to Scott Wetstone, a medical doctor employed

by the health center who acted as its freedom of information (FOI) officer. The request was for production

of all e-mails sent or received by Jay R. Lieberman, a

medical doctor formerly employed by the health center,

from July 1, 2009, to the date of the request; all Microsoft

Word and PDF documents created or modified on Dr.

Lieberman’s health center computer from July 1, 2010,

to the date of the request; and a list of all e-mails and

documents that fell within this request but were exempt

from disclosure, and reasons why they were exempt.

On December 13, 2013, Dr. Wetstone e-mailed the plaintiff to notify him that the previous FOIA requests6

that

the plaintiff had made to the health center were ‘‘essentially completed’’ and that he would begin working on

the plaintiff’s August 19, 2013 request. Dr. Wetstone

also suggested in this e-mail that, in light of the number

and the nature of the documents he had requested and

the fact that the plaintiff had already submitted an

extensive discovery request to the health center in a

separate matter, the plaintiff should narrow the scope

of his request. The plaintiff subsequently agreed to

exclude a number of categories of records from the

scope of his request.

On March 17, 2014, the plaintiff filed a complaint with

the commission; see Aronow v. University of Connecticut Health Center, Freedom of Information Commission, Docket No. FIC 2014-156 (February 4, 2015) (FIC

2014-156); alleging that he had not received the documents requested, and that there had been no activity

regarding his request since December, 2013. On June

30, 2014, while that matter was pending, the plaintiff

sent an e-mail to Dr. Wetstone requesting that he expedite the release of certain requested documents that

were relevant to the plaintiff’s pending Health Center

Appeals Committee (committee) appeal.7

In July, 2014,

the plaintiff and Dr. Wetstone exchanged further e-mails

regarding the use of a Dropbox8 account to provide the

plaintiff with the documents that he had requested for

his committee appeal. After having issues with

obtaining the documents from the designated Dropbox

folder, the plaintiff acknowledged the receipt of seventeen of the 139 requested documents that Dr. Wetstone

had informed the plaintiff he was sending.

On December 16, 2014, over one year after acknowledging that he would begin working on the plaintiff’s

August 19, 2013 request, and several months after the

plaintiff had filed his complaint in FIC 2014-156, Dr.
Wetstone e-mailed the plaintiff the following message:

‘‘Per our discussion this morning, you have my personal

commitment to get . . . the documents [at issue in FIC

2014-156] no later than the end of March 2015. . . .

Later today, I will attempt to find the files that I initially

put in the drop box last summer. I can’t find them

immediately and need to tend to other things right

now.’’

On February 4, 2015, the commission adopted a final

decision dismissing the plaintiff’s FIC 2014-156 complaint for lack of jurisdiction on the ground that the

complaint had not been timely filed pursuant to General

Statutes § 1-206 (b) (1).9 On that same day, the plaintiff

resubmitted to Dr. Wetstone the FOIA request that he

had originally requested on August 19, 2013. On February 17, 2015, the plaintiff again filed a complaint with the

commission; see Aronow v. University of Connecticut

Health Center, Freedom of Information Commission,

Docket No. FIC 2015-127 (October 28, 2015) (FIC 2015-

127); alleging that the health center had violated the

FOIA by failing to promptly provide him with all of the

documents he had requested.

Subsequently, on March 17, 2015, the plaintiff filed

an appeal from the commission’s decision in FIC 2014-

156 to the Superior Court. On June 18, 2015, the court

dismissed that appeal as moot on the ground that the

plaintiff’s hearing in FIC 2015-127, in which he sought

the same records, was pending before the commission.

A hearing on FIC 2015-127 was held before a hearing

officer on July 1, 2015. During the hearing, Dr. Wetstone

testified regarding the factors that were crucial for

determining how long it would take to comply with

the plaintiff’s particular FOIA request. Dr. Wetstone

indicated that, at the time of the hearing, the health

center had ten active requests from the plaintiff, nine

of which would take a few months to resolve. He indicated, as well, that the plaintiff’s February 4, 2015

request was ‘‘by far the largest’’ request he had encountered in his fifteen year history of handling FOIA

requests. Additionally, Dr. Wetstone claimed that there

was a possibility that multiple FOIA exemptions would

apply to the requested documents and that each document needed to be reviewed to determine whether any

of those exemptions applied. Dr. Wetstone also asserted

that in addition to acting as the FOI officer for the

health center, he had multiple other responsibilities

that affected how long compliance with the plaintiff’s

request would take. Finally, Dr. Wetstone testified that

many of the individuals employed by the health center

who would be required to search for certain requested

documents were also responsible for providing direct

patient care or for educating medical students.

On October 1, 2015, the hearing officer issued a proposed final decision. On October 8, 2015, the health

center provided the plaintiff with some of the docu-
ments he had requested together with a privilege log

claiming exemptions as to certain other documents.

On October 28, 2015, the commission adopted the

proposed final decision of the hearing officer. The commission found that the health center had violated General Statutes §§ 1-210 (a)10 and 1-212 (a)11 by failing to

comply promptly with the plaintiff’s records requests.

In addition, the commission found that the plaintiff’s

February 4, 2015 request was identical to the August

19, 2013 request that had been at issue in FIC 2014-156,

and took administrative notice of certain findings of

fact in FIC 2014-156 that were relevant to the determination of whether the health center had violated the

promptness requirement of the FOIA. In taking notice

of FIC 2014-156, the commission determined that the

plaintiff had agreed to exclude broadcast e-mails, journal articles, and research data from his records request

(paragraph ten). The commission found, as well, that

the plaintiff had asked Dr. Wetstone, on June 30, 2014,

to release ‘‘whatever material [he had] collected to date

as well as the subset of documents that meet [certain

enumerated] search criteria . . . between July 1, 2010,

and August 14, 2012,’’ which included his name and

variations of his name, the words ‘‘FOI,’’ ‘‘HCAC,’’

‘‘grievance,’’ and ‘‘Appeals Committee,’’ and excluded

e-mails sent to his own e-mail at the health center (paragraph eleven). (Internal quotation marks omitted.) The

commission ordered that the health center promptly

comply with the plaintiff’s request, as narrowed by paragraphs ten and eleven of its decision, that the health

center make a good faith effort to provide the plaintiff

with the requested records on a rolling basis, and that

the health center work diligently to comply fully within

nine months of its decision. The commission also suggested that the plaintiff refrain from making further

requests until the health center complied with the commission’s order.

On December 9, 2015, the plaintiff appealed from the

commission’s decision to the Superior Court, claiming

that the commission (1) improperly declined to impose

civil penalties on the health center, despite the length

of the delay and the fact that the commission had found

the health center to have violated the promptness

requirement of the act in relation to other requests

made by the plaintiff; (2) improperly suggested that the

plaintiff refrain from making further requests until the

commission’s order in FIC 2015-127 had been satisfied;

(3) improperly allowed the health center nine additional

months to comply with the plaintiff’s request; (4)

improperly found that the plaintiff had narrowed the

scope of his request, as stated in paragraph eleven of

its decision; (5) erred when it did not provide any mechanism for an in camera review of documents for which

the health center claimed exemptions on October 8,

2015, after the proposed decision had been released;

and (6) erred when it dismissed his FIC 2014-156 com-
plaint for lack of jurisdiction.

On October 25, 2016, the commission filed a motion

to dismiss the plaintiff’s appeal, contending that the

plaintiff was not aggrieved by the commission’s decision in his favor. The commission also moved to strike

certain claims for relief if any portion of the appeal

survived the motion to dismiss. On May 8, 2017, the

court granted the commission’s motion to dismiss as

to the plaintiff’s first and second claims, but denied

the motion as to the plaintiff’s third and fourth claims.

Additionally, the court ordered the parties to brief

whether it lacked jurisdiction to consider the plaintiff’s

fifth claim, and declined to review the commission’s

inadequately briefed motion to strike as to the plaintiff’s

sixth claim. In this decision, the court made clear that

the commission’s October 28, 2015 order was not stayed

pending the disposition of the appeal. Following this

decision, the plaintiff alleged that the health center notified him that it would begin complying with his request,

as narrowed pursuant to the commission’s order. The

plaintiff also alleged that in June, 2017, the health center

had sent him two compact discs (CDs) containing

requested documents in partial compliance with the

order.12

On January 5, 2018, after further considering the

plaintiff’s third, fourth, fifth, and sixth claims, the court

dismissed the plaintiff’s appeal. Specifically, the court

concluded that the commission had not abused its discretion in giving the health center nine months to comply with the plaintiff’s records request because there

was substantial evidence before the commission to support the reasonableness of its decision to order a rolling

out of information over a nine month period of time.

The court found, as well, that the plaintiff had agreed

to narrow his request, as described in paragraph eleven

of the commission’s decision. The court concluded, as

well, that because the commission did not have the

opportunity to consider whether there should have been

an in camera review of the allegedly exempt documents,

the plaintiff had not exhausted his administrative remedies, and, thus, that claim was not ripe for the

court’s consideration.

Finally, the court addressed the plaintiff’s claim

regarding his FIC 2014-156 complaint, which involved

his earlier records request to the health center. The

court understood this claim to be an assertion that

the plaintiff had relied on representations made by the

commission that his FIC 2014-156 complaint would be

considered at the hearing in FIC 2015-127 and that,

because of that representation, he did not timely appeal

the court’s disposition of his appeal with regard to his

FIC 2014-156 complaint. Specifically, the plaintiff’s

claim was understood to be an assertion that he was

aggrieved by the dismissal of FIC 2014-156 because the

issues in that earlier records request were not addressed
in FIC 2015-127 and the plaintiff had not received the

records he had sought in FIC 2014-156, which were the

same records as those had had requested in FIC 2015-

127, and that the commission should have considered

the health center’s delay in compliance as being substantially longer than it had found in its disposition of

FIC 2015-127. The court concluded that the plaintiff’s

claim was without merit after finding that the issues

that were the basis of the FIC 2014-156 complaint were,

in fact, addressed by the commission in FIC 2015-127.

The court also concluded that there was no evidence

in the record that the commission’s finding of a shorter

time period of delay was an abuse of discretion or

affected the outcome of the proceeding. This appeal

followed.13 Additional facts will be set forth as necessary.

I

We first address the plaintiff’s claim that the court

erred in concluding that he was not aggrieved by the

commission’s decision not to impose a civil penalty

against the health center. Specifically, the plaintiff

claims that the court’s granting of the commission’s

motion to dismiss this claim for lack of standing was

improper because he was aggrieved by the health center’s noncompliance with his FOIA requests and, therefore, had a direct interest in his attempt to have the

commission impose a civil penalty on the health center.

We are not persuaded.

We begin by setting forth the legal principles regarding motions to dismiss and standing. Because this claim

‘‘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. . . . That

question is one of law, over which our review is plenary.’’ (Citation omitted.) Burton v. Freedom of Information Commission, 161 Conn. App. 654, 658, 129 A.3d

721 (2015), cert. denied, 321 Conn. 901, 136 A.3d 642

(2016). ‘‘It is a basic principle of law that a plaintiff

must have standing for the court to have jurisdiction.

Standing is the legal right to set judicial machinery in

motion. One cannot rightfully invoke the jurisdiction

of the court unless he has . . . some real interest in

the cause of action, or a legal or equitable right, title

or interest in the subject matter of the controversy.

. . . Standing is not a technical rule intended to keep

aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to

ensure that courts and parties are not vexed by suits

brought to vindicate nonjusticiable interests and that

judicial decisions which may affect the rights of others

are forged in hot controversy, with each view fairly and

vigorously represented. . . . These two objectives are

ordinarily held to have been met when a complainant

makes a colorable claim of [a] direct injury he has
suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite

assurance of concrete adverseness and diligent advocacy.’’ (Citations omitted; internal quotation marks

omitted.) Rose v. Freedom of Information Commission, 221 Conn. 217, 223–24, 602 A.2d 1019 (1992).

‘‘Standing may derive from either classical or statutory aggrievement. . . . 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’ . . .); General Statutes § 4-183 (a) (‘[a]

person who has exhausted all administrative remedies

available within the agency and who is aggrieved by

a final decision may appeal to the Superior Court as

provided in this section’ . . .).’’ (Citation omitted;

emphasis omitted.) Burton v. Freedom of Information

Commission, supra, 161 Conn. App. 659.

In Burton, this court addressed the precise issue

raised in the case at hand, namely, whether a plaintiff

had standing to challenge on appeal the commission’s

failure to impose a civil penalty as a remedy once the

commission determined that a FOIA violation had

occurred. See id., 662–67. This court concluded that the

plaintiff in Burton was neither classically nor statutorily

aggrieved by the commission’s decision not to impose

a civil penalty because the decision did not violate a

legal interest of the plaintiff and there was no statutory

authority that provided the plaintiff with standing to

appeal to the trial court from the commission’s failure

to impose such a penalty. See id., 665–67. In reaching

this conclusion, the panel in Burton relied in part on

the language of § 1-206 (b) (2) to distinguish between

forms of relief that a plaintiff could seek, such as injunctions, and discretionary tools that the commission may

utilize, such as civil penalties. Id., 662–65.

The plaintiff acknowledges that Burton was binding

on the trial court, but attempts to distinguish Burton

from the present case by arguing that he was aggrieved

by the commission’s decision not to impose a civil penalty against the health center because that decision led

to a subsequent denial of his right to receive records

from the health center promptly pursuant to §§ 1-210

(a) and 1-212 (a). In making this claim, the plaintiff

appears to argue that the commission’s imposition of

a civil penalty to enforce compliance with its order

would have deterred the health center from committing

further FOIA violations. This argument, however, is

speculative, as it lacks any evidentiary foundation. In

short, there is no evidence in the record to support

the plaintiff’s contention that Burton is distinguishable

from the present matter. Accordingly, we conclude that

the court did not err in granting the commission’s
motion to dismiss the plaintiff’s civil penalty claim for

lack of standing.

II

The plaintiff next claims that the court erred in dismissing his claim that his FIC 2014-156 complaint was

improperly dismissed on the basis that he was not

aggrieved because the issues raised in that complaint

were addressed in FIC 2015-127, the underlying matter

in which he ultimately prevailed. The plaintiff claims

that he did not appeal from the court’s decision regarding his FIC 2014-156 complaint, because he relied to

his detriment on the commission’s guarantee during a

hearing on that matter14 that it would take his FIC 2014-

156 complaint into consideration in making its decision

in regard to his later FIC 2015-127 complaint. The plaintiff asserts that he subsequently was aggrieved by the

commission’s failure in FIC 2015-127 to consider all of

the relevant records from FIC 2014-156, as well as its

decision in FIC 2015-127 to consider the February 4,

2015 request date in determining whether the health

center had promptly complied, rather than the August

19, 2013 request date. We agree with the commission

that the court properly dismissed this claim.

‘‘Our resolution of this issue is guided by the limited

scope of judicial review afforded by the Uniform Administrative Procedure Act; General Statutes § 4-166 et seq.;

to the determinations made by an administrative

agency. [W]e must decide, in view of all of the evidence,

whether the agency, in issuing its order, acted unreasonably, arbitrarily or illegally, or abused its discretion.

. . . 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.’’ (Citation omitted; emphasis omitted; footnote omitted; internal quotation marks omitted.) Perkins v. Freedom of

Information Commission, 228 Conn. 158, 164–65, 635

A.2d 783 (1993). ‘‘Neither this court nor the trial court

may retry the case or substitute its own judgment for

that of the [administrative agency].’’ (Internal quotation

marks omitted.) Ottochian v. Freedom of Information

Commission, 221 Conn. 393, 397, 604 A.2d 351 (1992).

The plaintiff’s argument appears to be that, because

of representations made to him by counsel for the commission during the hearing concerning his appeal of

FIC 2014-156, he did not appeal the court’s disposition

regarding his FIC 2014-156 complaint, and, as a result,

the commission should be equitably estopped from later

asserting any issues arising from his failure to appeal.

We, however, agree with the court that the record

reveals that the plaintiff’s argument lacks merit.
Contrary to the plaintiff’s assertion, the record indicates that the commission did take the relevant facts

of FIC 2014-156 into consideration when making its

decision that the health center had violated the FOIA.

Not only did the commission find that the February 4,

2015 request was identical to the August 19, 2013

request, but, during the hearing in FIC 2015-127, the

commission explicitly took administrative notice of the

findings of fact in FIC 2014-156 that were relevant to

its determination as to whether the health center had

promptly complied. Because the commission actually

did take the relevant facts of FIC 2014-156 into consideration in making its decision in FIC 2015-127, and the

plaintiff’s February 4, 2015 request is identical to his

August 19, 2013 request, the plaintiff has not demonstrated how he was aggrieved by the statements of the

commission’s counsel or by the commission’s reliance

on the later request date in making its decision. Therefore, the plaintiff’s claim is without merit, and, accordingly, we conclude that the court properly dismissed it.

III

The plaintiff next claims that the court erred in concluding that there was substantial evidence in the

record to support the commission’s finding that the

plaintiff had narrowed the scope of his FOIA request,

as described in paragraph eleven of the commission’s

final decision. Specifically, the plaintiff claims that he

had not agreed to permanently narrow his FOIA request

to limit it to only the records described in an e-mail

communication with Dr. Wetstone, the health center’s

FOI officer. Rather, the plaintiff claims that he had

requested the health center to expedite the most time

sensitive portion of his request without excluding the

remainder of the records requested. The record supports the plaintiff’s claim in this regard.

The record reveals the following additional facts that

are relevant to this claim. After receiving the plaintiff’s

modified FOIA request, Dr. Wetstone e-mailed the plaintiff the following on December 13, 2013: ‘‘As I have

already described, this request is likely to take a considerable amount of time to complete given the number

[of] documents involved, the nature of the documents

. . . and my office’s capacity to review these documents . . . . To any degree that you are willing to narrow the scope of this [FOIA] request, it might help

expedite you receiving the documents you are seeking.’’

The plaintiff responded as follows: ‘‘As I stated before

you may exempt [b]roadcast news [e-mails], journal

articles, and research data. Since I do not know what

else is in [Dr.] Lieberman’s computer and [e-mail] I am

welcome to other suggestions. If you are able to send me

a list of documents on the computers and or [e-mails]

I would be happy to omit the ones I think are irrelevant.’’

The plaintiff subsequently filed his complaint in FIC
2014-156 on March 17, 2014, alleging that the health

center had failed to provide any of the requested documents.

On June 30, 2014, the plaintiff sent the following

e-mail to Dr. Wetstone: ‘‘Quite some time has passed

since [my] FOIA request was made. As you are aware

from one of your other responsibilities at the Health

Center I have an appeal due on or about July 21, 2014

with respect to my HCAC grievance against Dr. Lieberman. There is likely material extremely relevant to my

. . . appeal in [my] FOIA request that I would hope to

receive by July 14, 2014 if possible so I have time to

evaluate the information and incorporate it into my

appeal. Therefore, I am asking you to consider releasing

to me by July 14, 2014 whatever material you have

collected to date [as] well as the subset of documents

that meet the following criteria: (‘Mike’ OR ‘Aronow’

or ‘ARANOW’ or ‘Arano’ OR ‘HCAC’ OR ‘grievance’ or

‘Appeals Committee’ OR ‘FOI’ OR ‘FOIA’ OR ‘Freedom

of Information’) between July 1, 2010 and August 14,

2012 and excluding [e-mails] directly sent or [cc’d] to

Aronow@nso.uchc.edu.’’

As previously discussed, on February 4, 2015, the

same date that the plaintiff’s complaint in FIC 2014-156

was dismissed, the plaintiff submitted a FOIA request

identical to his August 19, 2013 request. On February

17, 2015, the plaintiff filed his complaint in FIC 2015-

127. During the hearing in that matter, Dr. Wetstone

testified that he had negotiated with the plaintiff a ‘‘dramatic reduction’’ to his original August 19, 2013 request,

but that the plaintiff’s February 4, 2015 request restored

the original, prenegotiation request. Other than Dr. Wetstone’s testimony in this regard, there was no documentary evidence reflecting that the plaintiff had narrowed

the scope of his records request. Moreover, the plaintiff

testified that there was an ‘‘implicit assumption . . .

that the same restrictions [regarding his original

request] would be in place [regarding his February 4,

2015 request]’’ and that he ‘‘was always willing to work

with Dr. Wetstone to narrow [his request] in any way

before, and the implicit assumption was that . . . [Dr.

Wetstone] would give [him] the documents he already

had . . . .’’ The hearing officer also asked the plaintiff

if he was still willing to reduce the number of documents

he was requesting, to which the plaintiff replied in

the affirmative.

As with the plaintiff’s second claim, our review of

this claim is limited to ‘‘whether the agency, in issuing

its order, acted unreasonably, arbitrarily or illegally, or

abused its discretion.’’ (Internal quotation marks omitted.) Perkins v. Freedom of Information Commission,

supra, 228 Conn. 164. Also in our review, we are mindful

that ‘‘[t]he [FOIA] expresses a strong legislative policy

in favor of the open conduct of government and free

public access to government records.’’ Wilson v. Free-
dom of Information Commission, 181 Conn. 324, 328,

435 A.2d 353 (1980); see also Board of Education v.

Freedom of Information Commission, 208 Conn. 442,

450, 545 A.2d 1064 (1988) (‘‘general policy of openness

expressed in the FOIA legislation’’); Tompkins v. Freedom of Information Commission, 136 Conn. App. 496,

507, 46 A.3d 291 (2012) (‘‘We note initially that public

policy favors the disclosure of public records. . . .

[A]ny exception to that rule [therefore] will be narrowly

construed in light of the general policy of openness

expressed in the [FOIA] . . . .’’ [Citation omitted; internal quotation marks omitted.]). In addition, ‘‘[t]he burden of proving the applicability of an exception to the

FOIA rests upon the party claiming it.’’ Rose v. Freedom

of Information Commission, supra, 221 Conn. 232.

The present case rests on the interpretation of the

plaintiff’s June 30, 2014 e-mail and his subsequent representations to the health center and the commission.

The commission argues that it reasonably interpreted

the June 30, 2014 e-mail as an agreement by the plaintiff

to narrow the scope of his request to a particular subset

of documents, and that there is no evidence in the

record to support the plaintiff’s assertion that he did

not intend to permanently narrow his request to that

subset. The record does not support that conclusion.

In the June 30, 2014 e-mail, the plaintiff clearly stated

that he needed material that was relevant to his pending

committee appeal. He also asked Dr. Wetstone to forward any documents that had been collected up to that

date, including documents that were relevant to his

committee appeal. The plaintiff also explicitly excluded

e-mails that had been sent to his own e-mail address

at the health center. The plaintiff, however, did not

state in the e-mail that he was in any way limiting his

original August 19, 2013 request, or that he was excluding the remainder of the documents related to that

request. The only reasonable reading of the plaintiff’s

e-mail is that he was attempting to expedite the receipt

of certain documents for his upcoming committee

appeal. Nowhere in the plaintiff’s response to Dr. Wetstone did he evince an intent to permanently alter the

scope of his pending FOIA request.

Moreover, the commission’s view that the June 30,

2014 e-mail constituted an agreement by the plaintiff

to narrow the scope of his request appears to conflate

that e-mail with the plaintiff’s December 16, 2013 e-mail

in which he explicitly agreed to exclude ‘‘broadcast

[e-mails], journal articles, and research data’’ from his

original August 19, 2013 request.15 (Internal quotation

marks omitted.) The plaintiff does not dispute that he

agreed to exclude these documents, as well as the

e-mails sent to his e-mail address at the health center.

The plaintiff’s testimony before the commission reflects

his assumption that these were the same exclusions

that would be in place in his February 4, 2015 request,
and that this request would otherwise remain the same

as his original request.

Not only is the commission’s order narrowing the

plaintiff’s request as described in paragraph eleven of

its final decision inconsistent with the record, but it also

contravenes the general policy of openness expressed

within the FOIA. See Ottochian v. Freedom of Information Commission, supra, 221 Conn. 398; Tompkins v.

Freedom of Information Commission, supra, 136

Conn. App. 507. Our application of this general policy

is not hindered where neither the health center nor the

commission has asserted that the restrictions enunciated in paragraph eleven were due to exemptions pursuant to § 1-210 (b). In sum, we conclude that there was

no basis for the commission’s order narrowing the plaintiff’s request, as described in paragraph eleven. Accordingly, we conclude that the trial court erred in

concluding that there was substantial evidence in the

record to support the commission’s finding that the

plaintiff had narrowed the scope of his request with

respect to paragraph eleven.16

The judgment is reversed in part with regard to the

narrowing in scope of the plaintiff’s document request

and the case is remanded to the trial court with direction

to remand to the commission to order that the health

center comply with the plaintiff’s original FOIA request,

as narrowed only by paragraph ten of its final decision,

in an expeditious manner. The portion of this appeal

in regard to the plaintiff’s fourth claim is dismissed, and

the judgment is affirmed with respect to the plaintiff’s

remaining claims.

In this opinion the other judges concurred.

1 The plaintiff also represented himself before the trial court and the commission.

2 The health center and its freedom of information officer are not parties

to this action.

3 The record reflects that the commission’s October 28, 2015 order afforded

the health center an additional nine months to comply with the plaintiff’s

request as narrowed by paragraphs ten and eleven of its decision. Because

we conclude that the commission incorrectly determined that the plaintiff

had voluntarily narrowed his document request and we remand with direction that the commission formulate new orders for production, we need

not reach the plaintiff’s fourth claim that the commission gave the health

center an unreasonable amount of time to comply with its document production order. In sum, as a consequence of this opinion, the issue of whether

the commission abused its discretion by affording the health center an

unreasonably long period of time to comply is moot. See, e.g., Angersola

v. Radiologic Associates of Middletown, P.C., 330 Conn. 251, 256 n.4, 193

A.3d 520 (2018); Fisher v. Big Y Foods, Inc., 298 Conn. 414, 416 n.2, 3 A.3d

919 (2010).

4 While in the employ of the health center, the plaintiff filed a grievance

with the Health Center Appeals Committee (committee) against his department head, in which he accused the department head of various acts of

misconduct directed against the plaintiff and others. Once the committee

heard the grievance, it forwarded its report to the Office of the Executive

Vice President of Academic Affairs at the University of Connecticut. That

report, in turn, was reviewed by Philip Austin, president emeritus of the

university. Austin subsequently wrote a one page report on the matter. After

the plaintiff’s request for copies of the report was denied, he filed a complaint

with the commission which, in turn, ordered that the copies be disseminated

to him. On appeal, our Supreme Court affirmed the commission’s decision.
See Lieberman v. Aronow, 319 Conn 748, 751–53, 127 A.3d. 970 (2015).

5 By order dated February 14, 2018, a hearing officer from the Office of

Public Hearings issued a decision, after a bifurcated hearing, in favor of the

plaintiff on the issues of liability and continued the hearing to a subsequent

date for a hearing on damages. As of the date of oral argument in this appeal,

the damages hearing by the Office of Public Hearings had not taken place.

We take judicial notice of these proceedings in the Office of Public Hearings

as permitted by law. See Cannatelli v. Statewide Grievance Committee,

186 Conn. App. 135, 136 n.1, 198 A.3d 716 (2018) (taking judicial notice of

disciplinary proceeding despite fact that documents in proceeding not part

of underlying record), cert. denied, 331 Conn. 903, 202 A. 3d 374 (2019).

6 The plaintiff had made a number of additional FOIA requests to the

health center. Specifically, in the three years from the plaintiff’s departure

from the health center until the hearing in Aronow v. University of Connecticut Health Center, Freedom of Information Commission, Docket No. FIC

2015-127 (October 28, 2015), Dr. Wetstone testified that the plaintiff had

made twenty-seven requests to the health center.

7 See footnote 4 of this opinion.

8 Dropbox is a ‘‘web-based file hosting service that uses cloud storage to

enable users to store and share files with others across the Internet using

file synchronization. When files are uploaded to Dropbox by a user, they

automatically sync with another computer selected by the user, meaning that

the files are transferred from one computer to another.’’ (Internal quotation

marks omitted.) Frisco Medical Center, L.L.P. v. Bledsoe, 147 F. Supp. 3d

646, 652 (E.D. Tex. 2015).

9 General Statutes § 1-206 (b) (1) provides in relevant part that ‘‘[a]ny

person denied the right to inspect or copy records under section 1-210 . . .

or denied any other right conferred by the Freedom of Information Act may

appeal therefrom to the Freedom of Information Commission, by filing a

notice of appeal with said commission. A notice of appeal shall be filed not

later than thirty days after such denial . . . .’’ In the present case, the

commission concluded that the plaintiff’s March 17, 2014 complaint ‘‘was

more than sixty days past the denial of the [plaintiff]’s request that is deemed

to have occurred on December 20, 2013 . . . .’’

10 General Statutes § 1-210 (a) provides in relevant part that ‘‘[e]xcept as

otherwise provided by any federal law or state statute, all records maintained

or kept on file by any public agency . . . shall be public records and every

person shall have the right to (1) inspect such records promptly during

regular office or business hours, (2) copy such records in accordance with

subsection (g) of section 1-212, or (3) receive a copy of such records in

accordance with section 1-212. . . .’’

11 General Statutes § 1-212 (a) provides in relevant part that ‘‘[a]ny person

applying in writing shall receive, promptly upon request, a plain, facsimile,

electronic or certified copy of any public record. The type of copy provided

shall be within the discretion of the public agency, except (1) the agency

shall provide a certified copy whenever requested, and (2) if the applicant

does not have access to a computer or facsimile machine, the public agency

shall not send the applicant an electronic or facsimile copy. . . .’’

12 During oral argument, the plaintiff further represented to this court that,

since receiving the CDs in June, 2017, he has not received any additional

documents from the health center. He also is uncertain of how many of the

documents falling within the scope of the narrowed request he did not

receive in the nine months following the court’s order.

13 On appeal, although the plaintiff notes in his appellate brief the commission’s suggestion that he refrain from filing additional FOIA requests until

the health center complied with the commission’s order, the plaintiff does

not appear to argue that this suggestion was improper. In fact, the plaintiff

concedes in his brief that the court reasonably concluded that the commission’s order that he refrain from further requests until the request at issue

is satisfied was nonbinding. Because the plaintiff does not appear to challenge the trial court’s determination in this regard, we need not address

this issue further.

Additionally, in his brief, the plaintiff’s only references to his request for

an in camera review of documents that the health center claimed to be

exempt from disclosure consist of a summary of the trial court’s decision

and a statement of his belief that he will need to file a new FOIA request

for an in camera review of the contested records. Lacking any analysis or

argumentation, we deem this claim to be abandoned. See Connecticut

Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120,

830 A.2d 1121 (2003) (‘‘[W]e are not required to review issues that have
been improperly presented to this court through an inadequate brief. . . .

Analysis, rather than mere abstract assertion, is required in order to avoid

abandoning an issue by failure to brief the issue properly.’’ [Internal quotation

marks omitted.]); Walker v. Commissioner of Correction, 176 Conn. App.

843, 856, 171 A.3d 525 (2017) (same).

14 In making this argument, the plaintiff relies on the following exchange

that occurred between the court and the commission’s counsel during

the hearing:

‘‘[The Court]: Right. How about [the plaintiff’s] claim that the 2014 [case]

is different than the 2015 case because it’s more and more likely to result

in an order of sanctions against the health center?

‘‘[The Commission’s Counsel]: Well—and I understand [the plaintiff]’s

thinking in that regard but he is able when his case comes up, he is able

to explain that it is a renewed complaint and the hearing officer who makes

a recommendation to the commission will consider that. It won’t just look

at the complaint in isolation.

‘‘[The Plaintiff] will be able to present evidence that this is, in fact, a

renewed complaint that he had to file in order to come within the jurisdiction

of the commission.

‘‘[The Court]: But his claim is that the length of time that it’s taken the

health center to supply the records is longer in the 2014 case than in the

2015 case and therefore he is more likely to obtain sanctions.

‘‘[The Commission’s Counsel]: And again, he would be able to present

that evidence at the hearing that this is a renewed complaint and his original

request was made over, I think it was [seventeen] months ago and the

hearing officer and the commission will take that into consideration. It

won’t view this new complaint, renewed complaint in isolation. [The plaintiff] will be able to present evidence that it was actually a renewed complaint.’’ (Emphasis added.)

15 This is the same exclusion recognized by the commission in paragraph

ten of its final decision in FIC 2015-127.

16 Although we conclude that our resolution of the plaintiff’s third claim

renders his fourth claim moot; see footnote 3 of this opinion; on the basis

of our review of the record, we do not understand the reasonableness of

the commission’s decision to afford the health center an additional nine

months to comply with the plaintiff’s records requests which, by then, were

already long-standing, especially in light of the explicit promise made by

Dr. Wetstone to complete the plaintiff’s request by March, 2015. We also

note the plaintiff’s unrebutted assertion that the health center had failed to

fully comply with the commission’s October 28, 2015 order by the nine

month deadline, which was not stayed following the trial court’s May 8,

2017 decision on the commission’s motion to dismiss. Under these circumstances, on remand we encourage the commission to put in place a procedure

to adequately monitor and ensure the health center’s compliance with the

plaintiff’s long-standing records requests.