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.
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 out-side 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.
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.
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
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 general rule under the [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 under the 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.
"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."
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."
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.
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.
A review of § 10-151c demonstrates that it shares substantially similar language and structure to § 10a-154a. Specifically, both statutes contain an exemption from the general rule of disclosure under the act for records of "performance and evaluation."
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...."
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...."
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."
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.
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."
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,
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. at 187, 874 A.2d 785; see also footnote 19 of this opinion. For example, in Kelley v. Bonney, supra, 221 Conn. at 578-79, 606 A.2d 693, 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.
Although Lieberman concedes that a record of personal misconduct may also
Lieberman claims that the analysis of § 10-151c in Wiese v. Freedom of Information Commission, supra, 82 Conn.App. 604, 847 A.2d 1004, 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.
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. at 606, 847 A.2d 1004. 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., at 606-607, 847 A.2d 1004. The defendants then appealed to the commission. Id., at 607, 847 A.2d 1004. In Wiese, the commission found that the agreement was not a
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., at 610 n. 6, 847 A.2d 1004. 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. at 612, 847 A.2d 1004.
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. at 21-22, 755 A.2d 364. 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., at 26, 755 A.2d 364. 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 their teaching 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, that the reports in the present case concern conduct "collaterally" related to Lieberman's various positions at the health center. See Wiese
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, rather than 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, at 221 Conn. at 234, 602 A.2d 1019. 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., at 219, 602 A.2d 1019. 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., at 220, 602 A.2d 1019. This court, acknowledging that the legislature intended that § 10-151c serve as an extension of the statute governing the privacy of personnel files,
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
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. at 187, 874 A.2d 785. 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.
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.