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JAY R. LIEBERMAN v. MICHAEL ARONOW ET AL.

(SC 19452)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.

Argued September 8—officially released December 8, 2015

Jeffrey J. Mirman, for the appellant (plaintiff).

Heena Kapadia, for the appellee (named defendant).

Victor R. Perpetua, principal attorney, for the appel-
lee (defendant Freedom of Information Commission).

George Jepsen, attorney general, and Walter Menjivar and Jeffrey Blumenthal, assistant attorneys general, filed a brief forthe appellees (defendant University

of Connecticut Health Center et al.).
Opinion

EVELEIGH, J. The primary issue in this appeal is

whether two reports (reports) relating to the resolution

of a formal grievance alleging misconduct against a

state university faculty member fall within the exemption from disclosure under the Freedom of Information

Act (act), General Statutes § 1-200 et seq., created by

General Statutes § 10a-154a.1 The plaintiff, JayR. Lieberman, the chairman of the orthopedic surgery department at the defendant University of Connecticut Health

Center (health center),2 appeals from the judgment of

the trial court dismissing his appeal from the final decision of the defendant Freedom of Information Commission (commission). The commission concluded that the

reports do not constitute a ‘‘record of the performance

and evaluation’’ within the meaning of § 10a-154a and

that, therefore, the health center was required to disclose the reports pursuant to a request by the defendant

Michael Aronow, an orthopedic surgeon at the health

center.3

On appeal, Lieberman claims, inter alia, that the trial

court improperly interpreted the language and legislative history of § 10a-154a. Aronow and the commission

contend that the trial court properly concluded that the

reports do not constitute a ‘‘record of the performance

and evaluation’’ of a faculty member under § 10a-154a.

We agree with Aronow and the commission and conclude that the reports at issue in this appeal do not

fall within the exemption from disclosure contained in

§ 10a-154a. Accordingly, we affirm the judgment of the

trial court dismissing Lieberman’s appeal from the commission’s decision.

The record reveals the following undisputed facts

and procedural history. Aronow filed a grievance with

the Health Center Appeals Committee (committee)

against Lieberman. In the grievance, Aronow accused

Lieberman of ‘‘incivility, vindictiveness, attempted

intimidation, disrespectfulness, and harassment’’

directed against Aronow, other health center faculty,

orthopedic residents, medical students, orthopedic

department and hospital staff, other administrators, and

physicians outside the health center system. Pursuant

to the health center’s grievance procedures, the committee issued a four page report of its findings regarding

Aronow’s grievance. The committee’s report was subsequently sent to the Office of the Executive Vice President of Academic Affairs at the University of

Connecticut. The task of reviewing the committee’s

report was then delegated to Philip Austin, president

emeritus of the University of Connecticut. Austin subsequently wrote a one page report on the matter. Aronow

requested copies of these reports pursuant to the act.

The health center denied Aronow’s request, reasoning

that the reports were exempt from disclosure pursuant

to § 10a-154a.
Aronow then filed a complaint with the commission,

alleging that the health center had violated the act by

failing to provide the reports.4 Following a contested

case hearing and an in camera inspection of the reports,

a hearing officer of the commission issued a proposed

decision concluding that the reports were not exempt

from disclosure pursuant to § 10a-154a. Thereafter, the

commission issued its decision, concluding that the

reports were not exempt from disclosure under § 10a154a and constituted ‘‘ ‘[p]ublic records’ ’’ within the

meaning of General Statutes § 1-200 (5).5

In its decision,

the commission reasoned as follows: ‘‘[The reports]

evidence the work of professionals involved in the resolution of a grievance. The [reports] further evidence

that such [a] resolution is accomplished by means of

a bifurcated process in which the first stage of the

process includes a fact-finding procedure and a recommendation with regard to the substantive allegations,

and the second stage of the process involves a final

decision as to whether a violation has occurred. . . .

[T]he procedure at issue is unlike a ‘performance

review’ in that its main focus concerns the allegations

of a grievance, and not an in-depth, [year long] focus

on an employee’s development, work product and

behavior. . . . [T]he fact that a grievance procedure

and the resulting records may include reference to [fact

based] events does not transform the procedure into

something other than a mechanism for resolving workplace disputes, nor does it transform the [reports] into

something other than [a] written recommendation and

[a] final decision with regard to [a] filed grievance.’’

Accordingly, the commission ordered the health center

to provide Aronow with a copy of the reports free of

charge.

Lieberman then filed an administrative appeal pursuant to General Statutes § 4-183 of the Uniform Administrative Procedure Act (UAPA). In addition to filing his

administrative appeal, Lieberman obtained a stay of the

commission’s decision from both the commission and

the trial court. The trial court further granted the commission’s motion to seal the reports. The trial court

considered ‘‘whether the reports are records of teacher

performance or of teacher discipline and misconduct.’’

Relying on the Appellate Court’s construction of General Statutes § 10-151c in Wiese v. Freedom of Information Commission, 82 Conn. App. 604, 847 A.2d 1004

(2004), the trial court concluded that the commission

properly determined that the reports do not constitute

a ‘‘ ‘record of the performance and evaluation’ ’’ of a

faculty member under § 10a-154a, reasoning that ‘‘the

purpose of the reports is to respond to a grievance about

workplace misconduct and not primarily to create a

record of performance and evaluation of an individual

faculty member.’’ This appeal followed.6

On appeal, Lieberman asserts that the text of § 10a-
154a plainly and unambiguously supports his position

that the reports qualify as a ‘‘record of [the] performance and evaluation’’ of a state university faculty or

professional staff member. Lieberman further contends

that the trial court improperly applied the judicial analysis of § 10-151c to § 10a-154a. Lieberman urges this

court to interpret § 10a-154a as establishing a bright

line test by which a record is exempt from disclosure

if it contains any form of performance evaluation,

regardless of the purpose behind the creation of the

document, unless the faculty member who is the subject

of such record consents to its disclosure.

In response, Aronow and the commission contend

that, given the nearly identical language of the statutes

and the references to § 10-151c in the legislative history

of § 10a-154a, the trial court properly looked to prior

judicial interpretations of § 10-151c and correctly

applied the Appellate Court’s decisions regarding

records of misconduct in determining that the reports

fall outside the scope of § 10a-154a. Thus, Aronow and

the commission contend that the legislature was concerned about the confidentiality of formal evaluations

when it enacted § 10a-154a, and not documents stemming from the filing of a formal grievance alleging misconduct against a state university faculty member.

By way of background, we cite briefly the policy of

the act. The act 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, whether or not such records are required by

any law or by any rule or regulation, 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 . . . or (3)

receive a copy of such records . . . .’’ General Statutes

§ 1-210 (a).

‘‘[T]he overarching legislative policy of [the act] is

one that favors the open conduct of government and

free public access to government records.’’ (Internal

quotation marks omitted.) Board of Selectmen v. Freedom of Information Commission, 294 Conn. 438, 450,

984 A.2d 748 (2010). ‘‘[I]t is well established that the

generalrule underthe [act] is disclosure, and any exception to that rule will be narrowly construed in light of

the general policy of openness expressed in the [act].

. . . [Thus] [t]he burden of proving the applicability of

an exception [to disclosure underthe act]rests upon the

party claiming it.’’ (Internal quotation marks omitted.)

Director, Dept. of Information Technology v. Freedom

of Information Commission, 274 Conn. 179, 187, 874

A.2d 785 (2005).

We begin by setting forth the standard of review.7

‘‘This court reviews the trial court’s judgment pursuant

to the . . . UAPA . . . . Under the UAPA, it is [not]

the function . . . of this court to retry the case or to
substitute its judgment for that of the administrative

agency. . . . Even for conclusions 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. . . .

[Thus] [c]onclusions 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. . . . [Similarly], this court affords deference to the construction of a statute applied by the

administrative agency empowered by law to carry out

the statute’s purposes. . . . Cases that present pure

questions of law, however, invoke a broader standard

of review than is . . . involved in deciding whether, in

light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.

. . . Furthermore, when a state agency’s determination

of a question of law has not previously been subject to

judicial scrutiny . . . the agency is not entitled to special deference. . . . We have determined, therefore,

that the traditional deference accorded to an agency’s

interpretation of a statutory term is unwarranted when

the construction of a statute . . . has not previously

been subjected to judicial scrutiny [or to] . . . a governmental agency’s time-tested interpretation . . . .

Even if time-tested, we will defer to an agency’s interpretation of a statute only if it is reasonable; thatreasonableness is determined by [application of] our

established rules of statutory construction. . . .

‘‘When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent

of the legislature. . . . In seeking to determine that

meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship

to other statutes. If, after examining such text and considering such relationship, the meaning of such text is

plain and unambiguous and does not yield absurd or

unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test

to determine ambiguity is whether the statute, when

read in context, is susceptible to more than one reasonable interpretation. . . . When a statute is not plain and

unambiguous, we also look for interpretive guidance to

the legislative history and circumstances surrounding

its enactment, to the legislative policy it was designed to

implement, and to its relationship to existing legislation

and common law principles governing the same general

subject matter . . . . The issue of statutory interpretation presented in this case is a question of law subject to

plenary review.’’8

(Citations omitted; internal quotation

marks omitted.) Freedom of Information Officer, Dept.

of Mental Health & Addiction Services v. Freedom of

Information Commission, 318 Conn. 769, 780–82, 122

A.3d 1217 (2015).

We begin with the text of § 10a-154a, which provides:
‘‘Any record maintained or kept on file by a board of

trustees of a constituent unit of the state system of

higher education which is a record of the performance

and evaluation of a faculty or professional staff member of such constituent unit shall not be deemed to be

a public record and shall not be subject to disclosure

under the provisions of section 1-210, unless such faculty or professional staff member consents in writing

to the release of his records by the board of trustees

of the constituent unit. Such consent shall be required

for each request for a release of such records.’’9

(Emphasis added.)

Resolution of Lieberman’s claim depends on whether

the phrase ‘‘record of the performance and evaluation

of a faculty or professional staff member’’ as used in

§ 10a-154a encompasses records involving the resolution of a formal grievance filed against a faculty member. ‘‘Although [c]ourts are bound to accept the

legislative definition of terms in a statute’’; (internal

quotation marks omitted) Rose v. Freedom of Information Commission, 221 Conn. 217, 225, 602 A.2d 1019

(1992); the phrase ‘‘record of the performance and evaluation’’ is not defined in § 10a-154a or elsewhere in

title 10a of the General Statutes. ‘‘Accordingly, General

Statutes § 1-1 (a) directs that we construe the term

according to its commonly approved usage, mindful of

any peculiar or technical meaning it may have assumed

in the law. We may find evidence of such usage, and

technical meaning, in dictionary definitions, as well as

by reading the statutory language within the context of

the broader legislative scheme.’’ State v. Menditto, 315

Conn. 861, 866, 110 A.3d 410 (2015).

The term ‘‘evaluate’’ is defined with substantial similarity in numerous sources. Webster’s Third New International Dictionary (2002) defines ‘‘evaluate’’ as, inter

alia, ‘‘to examine and judge concerning the worth, quality, significance, amount, degree, or condition of

. . . .’’ American Heritage College Dictionary (4th Ed.

2002) defines ‘‘evaluate’’ as, inter alia, ‘‘[t]o examine and

judge carefully; appraise.’’ Lastly, Merriam-Webster’s

Collegiate Dictionary (11th Ed. 2011) defines ‘‘evaluate,’’ in relevant part, as ‘‘to determine the significance,

worth, or condition of [usually] by careful appraisal and

study . . . .’’ Although these definitions are helpful in

understanding the term ‘‘evaluation,’’ nothing in these

definitions explains whether the term ‘‘evaluation’’

encompasses reports involving the resolution of a formal grievance.

Furthermore, we note that ‘‘[i]n interpreting a statute,

[r]elated statutory provisions . . . often provide guidance in determining the meaning of a particular word

. . . .’’ (Internal quotation marks omitted.) Gilmore v.

Pawn King, Inc., 313 Conn. 535, 555–56, 98 A.3d 808

(2014); see also General Statutes § 1-2z. In accordance

with § 1-2z, we next turn to other related statutes for
guidance.

Section 10-151c, which was enacted in 1984; see Public Acts 1984, No. 84-276, § 1; protects the records of

‘‘performance and evaluation’’ of primary and secondary public school teachers from disclosure under the

act.10 Section 10-151c provides in relevant part: ‘‘Any

records maintained or kept on file by the Department

of Education or any local orregional board of education

that are records of teacher performance and evaluation

shall not be deemed to be public records and shall not

be subject to the provisions of section 1-210, provided

that any teacher may consent in writing to the release

of such teacher’s records by the department or a board

of education. . . . Notwithstanding any provision of

the general statutes, records maintained or kept on

file by the Department of Education or any local or

regional board of education that are records of the

personal misconduct of a teacher shall be deemed to

be public records and shall be subject to disclosure

pursuant to the provisions of subsection (a) of section

1-210. Disclosure of such records of a teacher’s personal misconduct shall not require the consent of the

teacher. . . .’’ (Emphasis added.)

A review of § 10-151c demonstrates that it shares

substantially similar language and structure to § 10a154a. Specifically, both statutes contain an exemption

from the general rule of disclosure under the act for

records of ‘‘performance and evaluation.’’11 Despite the

fact that these statutes appear in different titles of the

General Statutes, they address the same subject matter,

namely, records of performance and evaluation of educators. Therefore, we believe that § 10-151c provides

guidance in determining the meaning of the phrase

‘‘record of the performance and evaluation’’ as used in

§ 10a-154a.

Although § 10-151c is also silent on what constitutes

a record of ‘‘performance and evaluation,’’ it is part

of a larger statutory scheme requiring evaluations of

teachers. General Statutes § 10-151b (a) requires superintendents to evaluate teachers on an annual basis and

provides in relevant part that ‘‘[a]n evaluation pursuant

to this subsection shall include, but need not be limited

to, strengths, areas needing improvement, strategies for

improvement and multiple indicators of student academic growth. . . .’’12 This statutory language, which

mandates performance evaluations and describes what

the evaluations are to address, supports the conclusion

that records of ‘‘performance and evaluation’’ would be

a part of this formal process performed at the direction

of a superintendent and not something raised by a colleague or another individual not mandated to conduct evaluations.

Our prior cases interpreting § 10-151c also support

the conclusion that the phrase ‘‘records of teacher performance and evaluation’’ is narrow in scope and was
not intended to include any document that contains

evaluative content pertaining to a teacher. In Kelley v.

Bonney, 221 Conn. 549, 578–79, 606 A.2d 693 (1992), this

court concluded that a verified petition and complaint,

which contained ‘‘the allegations by students, parents

and community members concerning the plaintiff’s conduct that were submitted to the [S]tate [B]oard of [E]ducation pursuant to its regulations [did] not constitute

‘records of teacher performance and evaluation’ as contemplated by . . . § 10-151c.’’ Furthermore, in Ottochian v. Freedom of Information Commission, 221 Conn.

393, 394–96, 604 A.2d 351 (1992), this court considered

whether letters, portions of which concerned the plaintiff’s performance as the school’s football coach and

portions of which concerned a violation of a Connecticut Interscholastic Athletic Conference regulation,

were exempt from disclosure pursuant to § 10-151c. The

plaintiff in Ottochian claimed ‘‘that when any evaluative

information pertaining to a teacher appears in a document, the entire document is a ‘record’ for purposes of

§ 10-151c, and, therefore, is exempt from disclosure.’’

Id., 397. This court disagreed with the plaintiff and

upheld as reasonable the commission’s determination

that a document was not exempt from disclosure in its

entirety pursuant to § 10-151c where portions of that

document concerned matters of teacher performance

and evaluation and other portions concerned nonevaluative content. Id., 400. Our review of related statutory

provisions and this court’s prior judicial interpretations

of the phrase ‘‘performance and evaluation’’ in the context of § 10-151c indicates that ‘‘a record of the performance and evaluation’’ in § 10a-154a should not be

interpreted to include any document that has any evaluative content at all, but is more limited in scope.

Nevertheless, a review of § 10-151c demonstrates that

it contains explicit limiting language providing that

records of personal misconduct are not to be included

in the definition of ‘‘records of teacher performance

and evaluation . . . .’’13 Section 10a-154a contains no

similar language explicitly limiting the scope of records

of performance and evaluation. Lieberman asserts that

the absence of similar language explicitly limiting the

application of § 10a-154a sufficiently distinguishes § 10-

151c so as to make prior judicial interpretations of

the latter irrelevant to the present case. Specifically,

Lieberman asserts that the fact that the legislature did

not amend § 10a-154a to add an exception for records

of ‘‘personal misconduct,’’ as it did in the case of § 10-

151c, and the fact that § 10a-154a does not expressly

limit its scope to formal faculty and staff evaluations,

demonstrate that any reports containing evaluative

information constitute a ‘‘record of the performance

and evaluation’’ within the meaning of § 10a-154a. In

response, Aronow and the commission assert that the

legislature’s failure to include such limiting language in

§ 10a-154a is not determinative because the ‘‘personal
misconduct’’ language was added merely as a clarification to § 10-151c, not to change the statute. We conclude

that both of these interpretations of § 10a-154a are reasonable, and that, therefore, the statute is ambiguous.

Accordingly, we look to extratextual sources for further guidance.

First, we examine the legislative history and the circumstances surrounding the enactment of § 10a-154a.

The legislative history of No. 89-229, § 1, of the 1989

Public Acts, which enacted § 10a-154a, makes clear that

its primary purpose was to ‘‘clarif[y] that the current

exemption in the [act] for personnel records includes

performance evaluations.’’14 32 H.R. Proc., Pt. 14, 1989

Sess., p. 4619, remarks of Representative Robert Godfrey. Section 10a-154a was enacted in response to an

attempt by student organizations at the University of

Connecticut to obtain access to student evaluations of

faculty performance. See 32 H.R. Proc., Pt. 17, 1989

Sess., pp. 5820–21, remarks of Representative Godfrey

(‘‘From the very beginning . . . performance evaluations have been exempt as personnel file material from

[disclosures under the act] . . . . Interestingly

enough, this issue has only re-arisen this year because

of this request for particular information provided by

students.’’); Conn. Joint Standing Committee Hearings,

Education, Pt. 1, 1989 Sess., p. 127 (setting forth testimony of Mitchell Pearlman, then executive director and

general counsel for commission).

Furthermore, the legislative history confirms that

§ 10a-154a was enacted to protect the official system of

peer and student evaluations of faculty and professional

staff performance in state institutions of higher education. Nothing in the legislative history suggests that the

legislature intended to exempt from the requirements

of disclosure under the act records involving the resolution of a formal grievance filed against a faculty member. Rather, as Aronow and the commission assert, the

legislative debate in the House of Representatives

reflected a tension about whether officially collected

evaluations of university faculty performance, particularly student evaluations, required the same level of

confidentiality as records of teacher performance and

evaluation at the primary and secondary school level.15

See 32 H.R. Proc., Pt. 17, 1989 Sess., pp. 5818–22,

remarks of Representative Mae Schmidle and Representative Godfrey. A similar discussion occurred in the

Senate. Senator Philip Robertson, speaking in opposition to the bill, stated as follows: ‘‘There is a difference

between elementary and secondary school teachers and

constituent units of higher education professors. . . .

If there is someone who is known by students, by faculty

members, by administrative staff members that they

are not competent or not quite as competent to teach

a certain course, why should I be deprived of that

knowledge? It’s my money that is being used to pay

that person’s salary as a [s]tate taxpayer.’’ 32 S. Proc.,
Pt. 7, 1989 Sess., pp. 2428–29. Moreover, at the public

hearing held prior to passage of the bill, David Newton,

the vice president for personnel for Connecticut State

University, stated: ‘‘What I feel this particular bill protects is the right for [a university’s] official evaluation

system which may include samplings of student data

as well as data taken from colleagues and other sources

to be shielded from the public view. In the absence of

that, we face a prospect of having evaluations so

dilute[d] and so qualified in content that they will be

useless to the process and useless to us who participate

in the administration of the state university system.’’

Conn. Joint Standing Committee Hearings, supra, p. 126.

Lieberman contends that legislative history demonstrates that, unlike § 10-151c, the scope of § 10a-154a

is not limited to official performance evaluations and

applies to ‘‘any record of a faculty member or professional staff [member] which is also a record of performance or evaluation.’’16 (Emphasis added.) In support

of this assertion, Lieberman cites to portions of the

legislative history of § 10a-154a that merely recite the

following, now codified, language: ‘‘Any record maintained or kept on file by a board of trustees of a constituent unit of the state system of higher education . . . .’’

General Statutes § 10a-154a; see 32 S. Proc., supra, p.

2424, remarks of Senator Robertson. In so contending,

however, Lieberman overlooks the nearly identical language contained in § 10-151c: ‘‘Any records maintained

or kept on file by the Department of Education . . . .’’

The legislative history demonstrates, as Aronow and

the commission contend, that the legislature intended

§ 10a-154a to extend the same protections to state university faculty and professional staff members as § 10-

151c granted to public primary and secondary school

teachers. For example, speaking in opposition to Senator Robertson’s proposed amendment to the bill, which

would have required the disclosure of a record of performance and evaluation to constitute an invasion of privacy before qualifying for exemption,17 Senator Kevin

Sullivan stated that the proposed amendment was ‘‘fully

inconsistent with what the [state] . . . already decided

a long time ago with [respect to] individuals who are

in every respect the equivalen[t] of higher education

faculty and that is that we have exactly this provision

now for teachers and professionals in our public, elementary and secondary schools.’’ 32 S. Proc., supra,

p. 2426. Senator Sullivan then urged rejection of the

amendment, pointing out that ‘‘faculty in higher education and the quality of our higher education system

deserve the same fairness, the same treatment, the same

personnel process that we have provided for elementary

and secondary school teachers and professionals.’’ Id.,

p. 2428; see also Conn. Joint Standing Committee Hearings, supra, p. 127 (Pearlman testifying that ‘‘[s]everal

years ago, a bill was passed that provided for the confidentiality of these records only with respect to . . .
local public school teachers below the rank of superintendent’’); Conn. Joint Standing Committee Hearings,

supra, p. 175 (testimony of Steve Thorton, staff organizer for Congress of Connecticut Community Colleges,

indicating that language under consideration was ‘‘similar to and actually completes the work of a . . . legislative initiative, which . . . preserved the confidentiality

of evaluations of public school teachers’’). These comments in the legislative history of § 10a-154a support

our understanding that, in passing § 10a-154a, the legislature intended to provide a very similar exemption

from disclosure in § 10a-154a as in § 10-151c.

As explained previously in this opinion, this court

has narrowly construed exemptions to disclosure under

the act. See Director, Dept. of Information Technology

v. Freedom of Information Commission, supra, 274

Conn. 187; see also footnote 19 of this opinion. For

example, in Kelley v. Bonney, supra, 221 Conn. 578–79,

this court applied a narrow construction of § 10-151c

and held that certain documents filed with the State

Board of Education, which contained allegations of a

variety of different forms of teacher misconduct, did

not constitute ‘‘ ‘records of teacher performance and

evaluation’ ’’ as used in § 10-151c.18 Similar to the documents at issue in Kelley, the reports at issue in the

present case are the result of an investigation into allegations of workplace misconduct against Lieberman.

Moreover, in Ottochian v. Freedom of Information

Commission, supra, 221 Conn. 397, this court declined

to adopt the plaintiff’s interpretation of § 10-151c that

all documents discussing teacher performance were

exempt from disclosure pursuant to § 10-151c. In

Ottochian, this court upheld as reasonable the commission’s conclusion that letters, which not only concerned

a high school’s violations of state regulations governing

high school football practice sessions, but also contained information about the plaintiff’s performance as

the high school football coach, were not exempt in their

entirety under § 10-151c. Id., 395–400. In Ottochian, the

commission, after concluding that the superintendent

had failed to comply with its first order to redact only

the portions of the letters that contained evaluative

content, ‘‘designated a line-by-line order specifying

those portions of the letters that the superintendent

should redact.’’ Id., 396.

Although Lieberman concedes that a record of personal misconduct may also contain an evaluation of

an individual’s performance, he invites this court to

conclude that any record containing any form of evaluative content pertaining to a university faculty or professional staff member is protected from disclosure under

§ 10a-154a. We rejected the plaintiff’s broad claim in

Ottochian, and, for the foregoing reasons, we reject

Lieberman’s analogous claim that the legislature

intended to exempt such a broad range of records from

disclosure through § 10a-154a. See id., 397. As demon-
strated by Ottochian, we further note the burdensome

nature of imposing a requirement that custodians of

documents redact any form of evaluative content from

all documents pertaining to faculty or professional staff

members. See id., 396.

Lieberman claims that the analysis of § 10-151c in

Wiese v. Freedom of Information Commission, supra,

82 Conn. App. 604, is inapplicable to the present case

because the disclosure of the documents at issue in

Wiese was specifically authorized by the language in

§ 10-151c requiring the disclosure of records of the personal misconduct of a teacher and § 10a-154a does not

contain similar language.19 In support of his claim, Lieberman accurately points out that the provisions of § 10a154a were not changed to reflect the exception for

records of personal misconduct to the exemption set

forth in § 10-151c, as amended by No. 02-138, § 20, of

the 2002 Public Acts (P.A. 02-138). In response, Aronow

and the commission, citing Wiese, contend that the

amendment to § 10-151c, which expressly excluded

records of personal misconduct from the exemption

to disclosure set forth in § 10-151c, only codified the

original intent of § 10-151c so as to clarify that records

of teacher misconduct were neverintended to be within

the scope of the phrase ‘‘ ‘teacher performance and

evaluation.’ ’’ We agree with Aronow and the commission.

The plaintiff in Wiese, a high school teacher, showed

a film entitled ‘‘ ‘Damned in the USA’ ’’ to his American

government class. Wiese v. Freedom of Information

Commission, supra, 82 Conn. App. 606. Upon learning

that the plaintiff had shown the film, his supervisors

investigated the matter and deemed the film to be age

inappropriate. Id. As a result of the investigation, the

superintendent, a teacher’s union representative, and

the plaintiff signed a ‘‘ ‘last chance agreement,’ ’’ which

‘‘detailed the superintendent’s findings of fact, the punishment involved and penalties for future infractions.’’

Id. Subsequently, the defendants, a newspaper and

reporter, requested that the school provide them with

the agreement and the plaintiff objected to the request,

claiming that the agreement fell within the exemption

to the general rule of disclosure contained in § 10-151c.

Id., 606–607. The defendants then appealed to the commission. Id., 607. In Wiese, the commission found that

the agreement was not a record of ‘‘ ‘teacher performance and evaluation’ ’’ within the meaning of § 10-

151c and ordered that it be disclosed. Id., 608. The

Appellate Court upheld the judgment of the trial court

affirming the commission’s order of disclosure. Id., 611–

12. Recognizing that the ‘‘case highlights the uncharted

waters between what information constitutes a record

of teacher misconduct, meriting discipline, and what

information constitutes a record of teacher performance in the classroom setting, meriting an evaluation

of that performance,’’ the Appellate Courtreasoned that
‘‘[a]n activity may be related collaterally to teaching but

nevertheless merit discipline . . . . This is such a case.

In the judgment of the superintendent in this case, the

plaintiff’s conduct, showing an age inappropriate film,

merited discipline. The agreement describes that judgment and the need for discipline.’’ (Citation omitted.)

Id., 612.

The facts in Wiese, however, predated the passage

of P.A. 02-138 and the court’s analysis was based on

the scope of the phrase ‘‘teacher performance and evaluation’’ and the original intent of § 10-151c as drafted

before the amendment. See id., 610 n.6. Contrary to

Lieberman’s argument, the Appellate Court’s decision

in Wiese was not based on the ‘‘personal misconduct’’

language of P.A. 02-138, but was a logical extension of

its prior holding in Carpenter v. Freedom of Information Commission, 59 Conn. App. 20, 755 A.2d 364, cert.

denied, 254 Conn. 933, 761 A.2d 752 (2000). See Wiese v.

Freedom of Information Commission, supra, 82 Conn.

App. 612.

In Carpenter, which was decided two years before

the passage of P.A. 02-138, the Appellate Court upheld

as reasonable the commission’s determination that

‘‘records ‘relating to incidents in which school employees are alleged to have allowed, either inadvertently or

intentionally, students to have access to pornography or

sexually explicit material’ ’’related only to the plaintiff’s

personal conduct and not the plaintiff’s ability to teach

and, therefore, were not exempt from disclosure as

‘‘ ‘records of teacher performance and evaluation’ ’’

under § 10-151c. Carpenter v. Freedom of Information

Commission, supra, 59 Conn. App. 21–22. In Carpenter

the Appellate Court concluded that such ‘‘[r]ecords of

a teacher’s personal misconduct occurring during class

time, but unrelated to teaching . . . should not be protected from disclosure under § 10-151c.’’ Id., 26. On the

basis of the foregoing analysis, we agree with the trial

court that interpretation of § 10a-154a should parallel

the interpretation of § 10-151c because the Appellate

Court, in examining the scope of the phrase ‘‘records

of teacher performance and evaluation,’’ had distinguished between records of personal misconduct and

records of evaluation prior to the statutory amendment.

Lieberman further contends that because, unlike § 10-

151c, § 10a-154a applies to both faculty and professional

staff members and the phrase ‘‘performance and evaluation’’ is not modified by the term ‘‘teacher,’’ § 10a-154a

encompasses records involving the performance of any

role a faculty or professional staff member fulfills, not

merely records involving theirteaching responsibilities.

Thus, Lieberman claims that the reports fall within the

scope of § 10a-154a because they concern, inter alia,

Lieberman’ performance in his capacity as chairman of

the health center’s orthopedic surgery department. We

disagree. Instead, we conclude, as the Appellate Court
did in Wiese, thatthe reports in the present case concern

conduct ‘‘collaterally’’ related to Lieberman’s various

positions at the health center. See Wiese v. Freedom of

Information Commission, supra, 82 Conn. App. 612.

Lastly, we address Lieberman’s assertion that the trial

court erred in considering the primary purpose behind

the creation of the reports, namely responding to a filed

grievance,ratherthan limiting its analysis to the content

of the reports. Aronow and the commission respond

that the context in which a document is created is

relevant to the inquiry of whether that document is

protected from disclosure under § 10a-154a and that

Lieberman’s interpretation would be inconsistent with

the overarching policy favoring disclosure under the

act. We agree with Aronow and the commission.

In Rose, this court concluded that § 10-151c was not

‘‘intended to prevent the public disclosure of the substance of votes of a public agency that happen to concern matters of personnel, teacher performance or

evaluation.’’ Rose v. Freedom of Information Commission, supra, 221 Conn. 234. In Rose, the school superintendent recommended to a local board of education

that it take disciplinary action against teachers and

administrators who had ‘‘staged a mock arrest of a

teacher as a prelude to teaching students about the

Scopes Monkey Trial.’’ Id., 219. The local board of education discussed the incident and the recommended

disciplinary action in executive session, but then reconvened in public and voted to accept the superintendent’s

recommendations for disciplinary action, without disclosing the specific action on which it voted. Id., 220.

This court, acknowledging that the legislature intended

that § 10-151c serve as an extension of the statute governing the privacy of personnel files,20 reasoned that

‘‘[w]hile it is quite possible that the vote of the [local

board of education] to approve the superintendent’s

recommendation might generate disciplinary actions,

such as the issuance of letters of reprimand, suspensions, or terminations, which in turn might produce

records which would become part of the plaintiff’s personnel files, the vote itself is not such a record.’’ (Internal quotation marks omitted.) Id., 234. Therefore, this

court concluded that the commission was ‘‘acting

within the scope of its authority in ordering the [local

board of education] to furnish the complainants ‘with a

record containing the recommendation for disciplinary

action it approved.’ ’’ Id., 235.

While the present case does not raise the same concerns expressed in Rose about whether elected public

officials are performing their duties properly, it involves

a question similar to that presented in Rose. Similar to

the vote to either approve or reject the superintendent’s

recommendations for discipline in Rose, the committee

issued a report in response to the filing of Aronow’s

grievance and Austin drafted a report to respond to the
committee’s recommendations. Like the local board of

education’s vote in Rose, the reports in the present case

are not disciplinary records.

Furthermore, the parties conceded at oral argument

before this court that the document initiating the grievance at issue in this appeal is subject to public disclosure. By withholding the reports from disclosure, a

party who files a grievance pursuant to the specific

grievance procedure at issue in the present case would

solely be notified of the resolution of the grievance.

Therefore, if we were to follow the position urged by

Lieberman, a grievant would be required to exercise

his right to appeal the outcome of a filed grievance

without the benefit of knowing the rationale. Such an

interpretation would unduly hinder the grievance

process.

Conceivably almost all records relating to a faculty or

professional staff member’s employment could include

some form of evaluative content. Thus, to adopt Lieberman’s position would make the exception so broad

that it would threaten to swallow the general rule of

disclosure under the act, as it applies to university faculty and professional staff members. See Director, Dept.

of Information Technology v. Freedom of Information

Commission, supra, 274 Conn. 187. Therefore, we

reject Lieberman’s broad construction of § 10a-154a

and, instead, narrowly construe the exemption. See id.;

see also footnote 19 of this opinion. Because our interpretation is consistent with our narrow interpretation

of § 10-151c and with the policy framework of the act,

we conclude that the reports in the present case do not

constitute a ‘‘record of the performance and evaluation’’

of a state university faculty or professional staff member within the exemption created by § 10a-154a.Accordingly, we conclude that the trial court properly

dismissed Lieberman’s appeal.

The judgment is affirmed.

In this opinion the other justices concurred.

1 General Statutes § 10a-154a provides: ‘‘Any record maintained or kept

on file by a board of trustees of a constituent unit of the state system of

higher education which is a record of the performance and evaluation of a

faculty or professional staff member of such constituent unit shall not be

deemed to be a public record and shall not be subject to disclosure under

the provisions of section 1-210, unless such faculty or professional staff

member consents in writing to the release of his records by the board of

trustees of the constituent unit. Such consent shall be required for each

request for a release of such records.’’

2 All references to positions in this opinion pertain to those held at the

time of the incident relevant to this appeal. We note that Lieberman has

held various other positions, including faculty member at the University of

Connecticut School of Medicine and director of the Musculoskeletal Institute

at the health center.

3 The health center’s freedom of information officer, Scott Wetstone, was

also named as a defendant in the underlying action. During the proceedings

before the trial court, the health center and Wetstone declined to take a

position on whether the reports at issue are exempt from disclosure under

the act pursuant to § 10a-154a. These parties, instead, requested judicial

guidance in interpreting the scope of the exemption to the act in § 10a-154a.

We note that, although these parties declined to file appellate briefs on the
primary issue in the present case, they filed a joint supplemental brief on

the issue of mootness in response to the order of this court dated April 1,

2015. See footnote 7 of this opinion. We also note that Aronow has, inter

alia, adopted the arguments set forth in the commission’s brief.

4 We note that Lieberman was granted permission to intervene as a full

party respondent by the commission. We further note that, although the

University of Connecticut Health Center Chapter of the American Association of University Professors was granted permission to intervene as a full

party complainant by the commission, it did not appear before the trial

court and is not a party to the present appeal.

5 General Statutes § 1-200 (5) provides in relevant part: ‘‘ ‘Public records

or files’ means any recorded data or information relating to the conduct of

the public’s business prepared, owned, used, received or retained by a public

agency . . . whether such data or information be handwritten, typed, taperecorded, printed, photostated, photographed or recorded by any other

method.’’

6 Lieberman subsequently appealed from the judgment of the trial court

to the Appellate Court, and we transferred the appeal to this court pursuant

to General Statutes § 51-199 (c) and Practice Book § 65-1.

7 All the parties to the appeal agree that the present question is not rendered moot by a discovery order issued in a collateral proceeding, which

permitted limited disclosure of the reports to Aronow. Nonetheless, because

mootness implicates this court’s subject matter jurisdiction, we are required

to address the issue.

The record discloses the following additional relevant facts, which are

undisputed. On March 20, 2015, the commission notified this court that the

health center had recently provided the reports to Aronow pursuant to a

discovery order issued in a collateral proceeding before the Commission

on Human Rights and Opportunities (CHRO). The health center made this

disclosure subject to a confidentiality order and a requirement that the

reports be returned at the conclusion of the CHRO proceeding. As a result,

on April 1, 2015, this court ordered the parties ‘‘to file simultaneous supplemental briefs addressing the issue of whether this appeal is moot in light

of the fact that the [reports] have been provided to [Aronow] pursuant to

a discovery order issued [in the CHRO] proceeding.’’

The parties assert that a comparison of the limited nature of disclosure

permitted under the protective order issued in the collateral CHRO proceeding and the unencumbered disclosure order of the commission demonstrates

that the present appeal is not moot. In contrast to the restrictions on disclosure of the reports contained in the protective order issued by the CHRO,

the final order of the commission does not contain any restrictions on

further use or dissemination of the reports. The commission’s order simply

provides that the health center ‘‘shall forthwith provide [Aronow] with a

copy of the [reports], free of charge.’’ For the foregoing reasons, we agree

with the parties and, accordingly, conclude that the appeal is not rendered moot.

8

In the present case, the parties do not dispute that the commission’s

interpretation of this phrase has never been subject to judicial scrutiny nor

does the commission contend that its interpretation is time-tested. Aronow

and the commission do claim, however, that the commission’s interpretation

of the phrase ‘‘record of the performance and evaluation’’ in § 10a-154a

should be entitled to some degree of deference because the commission

has consistently applied a reasonable construction to similar language found

in § 10-151c and the commission applied that same construction to § 10a154a in the present case. In support of this claim, the commission cites to

Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom of Information Commission, 212 Conn. 100, 106, 561 A.2d 429 (1989), and Ottochian v. Freedom

of Information Commission, 221 Conn. 393, 398-–99, 604 A.2d 351 (1992).

In the first of these two cases, this court upheld the commission’s interpretation of the term ‘‘operational meeting’’ contained within a statute that, at

the time, provided an exemption to the act’s open meeting requirement for

‘‘[a]ny operational meeting of active members of a volunteer fire department

. . . .’’ (Internal quotation marks omitted.) Cos Cob Volunteer Fire Co. No.

1, Inc. v. Freedom of Information Commission, supra, 102; see General

Statutes (Rev. to 1989) § 7-314 (b). In doing so, this court explained that

‘‘[w]hen the legislature uses a broad term, such as ‘operational meeting[s],’

in an administrative context, without attempting to define that term, it

evinces a legislative judgment that the agency should define the parameters

of that term on a case-by-case basis.’’ Cos Cob Volunteer Fire Co. No. 1,

Inc. v. Freedom of Information Commission, supra, 106. In the second case,
we applied this conclusion in deferring to the commission’s interpretation

of the term ‘‘records’’ in § 10-151c. Ottochian v. Freedom of Information

Commission, supra, 399. We note that both of these cases were decided

long before the enactment of § 1-2z and that the present case involves an

issue of statutory construction that has never been subject to judicial scrutiny and lacks a time-tested interpretation by the commission. See Freedom

of Information Officer, Dept. of Mental Health & Addiction Services v.

Freedom of Information Commission, 318 Conn. 769, 781, 122 A.3d 1217

(2015). Accordingly, we follow the mandates of § 1-2z.

9 The parties agree that the reports are records that were kept on file by

a board of trustees of a constituent unit of the state system of higher

education, and that Lieberman, a faculty member, has not consented to

their disclosure.

10 Section 10-151c defines ‘‘ ‘teacher’ ’’ as ‘‘each certified professional

employee below the rank of superintendent employed by a board of education in a position requiring a certificate issued by the State Board of Education.’’

11 We agree with the trial court thatthe phrase ‘‘a record of the performance

and evaluation of a faculty or professional staff member’’ in § 10a-154a is

analogous to the phrase ‘‘records of teacher performance and evaluation’’

in § 10-151c.

12 We note that there is no such similar requirement in title 10a of the

General Statutes.

13 In 2002, the legislature amended § 10-151c by adding, inter alia, the

following statutory language: ‘‘Notwithstanding any provision of the general

statutes, records maintained or kept on file by any local or regional board

of education which are records of the personal misconduct of a teacher

shall be deemed to be public records and shall be subject to disclosure

pursuant to the provisions of subsection (a) of section 1-210. . . .’’ Public

Acts 2002, No. 02-138, § 20.

14 Section § 1-210 (b) (2) exempts from the purview of the act ‘‘[p]ersonnel

or medical files and similar files the disclosure of which would constitute

an invasion of personal privacy . . . .’’ This court has previously stated that

‘‘the invasion of personal privacy exception of [§ 1-210 (b) (2)] precludes

disclosure . . . only when the information sought by a request does not

pertain to legitimate matters of public concern and is highly offensive to a

reasonable person.’’ (Internal quotation marks omitted.) Rocque v. Freedom

of Information Commission, 255 Conn. 651, 662, 774 A.2d 957 (2001). At

oral argument before this court, counsel for the commission suggested that

the subject of a grievance might be able to raise § 1-210 (b) (2) as a ground

for nondisclosure. Lieberman has not raised § 1-210 (b) (2) and, accordingly,

we decline to address this issue in the present case.

15 For example, Representative Mae Schmidle, opposing the bill, stated

as follows: ‘‘[T]his bill . . . prevents students from gaining access to evaluations that the students themselves have provided for the faculty. Now I

know that we have an exception to local public school teachers and a lot

of people tend to agree with that. When you send a child to a local public

school you don’t have any option. You have nowhere else to send that

particular child if you’re going to be in the school system and there may

be some rationale for preventing the evaluations of public school teachers

from being public, but I don’t see that this is the same situation and I don’t

see the necessity of doing this for university teachers. . . . If, for example,

in a particularinstance, you’re not pleased with the performance of a faculty,

you always have the option of going to another school or another university.

That is not so with the public school children and I don’t think that we can say

that this is similar or exactly like the exception for public school children.’’ 32

H.R. Proc., Pt. 17, 1989 Sess., pp. 5819–20. In response, Representative

Godfrey explained that this bill was aimed at protecting administratively

facilitated evaluations: ‘‘[T]here is an alternative method of providing or

obtaining that information of student evaluation and it is by having the

students do them themselves . . . . So it’s not a question of hiding particular information that would otherwise be available to students or to potential

students, but it simply says the university isn’t going to be the facility by

which this is performed.’’ Id., p. 5821.

16 Lieberman does not dispute that the legislative history of § 10-151c

indicates that the legislature was concerned about protecting the confidentiality of official performance evaluations when it enacted § 10-151c.

17 Senator Robertson’s proposed amendment to the bill was defeated. 32

S. Proc., supra, p. 2431.

18 The verified petition and complaint in Kelley contained the following
allegations: ‘‘(1) the plaintiff conveyed to students the belief that females

are mentally and morally inferior to males; (2) he ‘sexualized’ his classroom

presentations causing his students to feel anger, embarrassment and fright;

(3) he failed to cover the curriculum material for his courses; (4) he failed

to set a good example regarding patience, fairness, compassion, and respect

for the rights of others without regard to race, sex, religion or nationality;

(5) students were ‘traumatized’ by him; (6) he ‘repeatedly [verbally] abused’

students; (7) he committed rough and hurtful batteries on male students;

and (8) he touched female students against their will.’’ Kelley v. Bonney,

supra, 221 Conn. 555–56.

19 We note that Lieberman further claims that the court in Wiese erred in

narrowly construing § 10-151c. Lieberman contends that the rule of narrow

construction does not apply to §§ 10-151c and 10a-154a because these statutes provide that the records within their scope ‘‘shall not be deemed to

be public records,’’ rather than providing that the records are exempt from

the generalrule of disclosure underthe act. This court has previously applied

the rule of narrow construction to § 10-151c. See Kelley v. Bonney, supra,

221 Conn. 578–79; Ottochian v. Freedom ofInformationCommission, supra,

221 Conn. 398; Rose v. Freedom of Information Commission, supra, 221

Conn. 233. Accordingly, in light of our discussion of the notable similarities

between these statutes subsequently in this opinion, we disagree with Lieberman and construe § 10-151c narrowly.

20 At the time this court rendered its decision in Rose, the statutory language governing personnel files was set forth in General Statutes (Rev. to

1991) § 1-19 (b) (2). That language was transferred to § 1-210 (b) (2) in 1999.

See Rocque v. Freedom of Information Commission, 255 Conn. 651, 663

n.1, 774 A.2d 957 (2001); see also footnote 14 of this opinion.