Federation of Connecticut Taxpayer Organizations

Just three years after the Connecticut Supreme Court limited the Freedom of Information Commission�s jurisdiction over judicial records, a media group is asking the court to reconsider.

In a legal brief submitted to the court on behalf of the Connecticut Council for Freedom of Information, lawyer Daniel J. Klau of Hartford argues that the court should return to positions it took before 2006 on the limits of the FOI Commission�s jurisdiction over court records.

By doing so, he argues, the court can avoid �a direct constitutional confrontation� between the judicial branch of state government and the legislature. The court has scheduled oral argument for Sept. 24.

Despite the similarity of their names, the Connecticut Council for Freedom of Information and the Freedom of Information Commission are unrelated entities. CCFOI is a media advocacy group, while the FOI Commission is a state government agency, charged with adjudicating disputes over public records and meetings of government agencies.

The 2006 Supreme Court decision became a flash-point of public controversy when then-Chief Justice William J. Sullivan delayed its release because he thought it might cause problems for his friend Justice Peter T. Zarella, who had been nominated for chief justice. Sullivan was suspended from the bench for 15 days for his action, which, ironically, also killed Zarella�s chances of becoming chief justice.

But CCFOI has gone out of its way to avoid any suggestion that it�s hoping to gain from that controversy as it seeks to overturn the 2006 decision. In a footnote to the brief, Klau says his clients �expressly disavow� any argument that the court should reconsider the 2006 decision �because of the circumstances surrounding its release.�

Riding wave of openness?

But the organization does seem to hope that the new emphasis on openness in judicial decision-making that followed the controversy will encourage the Supreme Court to see the issue through a different lens.

�There�s been a sort of a stated movement at the Judicial Department that they want to move to more openness,� said Vincent M. Valvo, the former editor of the Hartford Business Journal who made the information request at issue in the new case when he was president of CCFOI.

The case stems from the long-running controversy over the sealing of information on certain civil lawsuits.

In May 2007, Valvo asked the state�s chief court administrator for copies of docket sheets in all sealed cases referred to as �Level 2.� That meant all information about the cases was secret except the names of the parties, the docket number of the case, and the judicial district in which the case was being litigated.

Judge William J. Lavery, then the chief court administrator, denied the request. Valvo and the CCFOI appealed to the FOI Commission, although Klau says they knew they had to lose at that level � indeed at every level up to the Supreme Court.

The state Freedom of Information Act gives the FOI Commission jurisdiction over the judicial branch of government only with respect to its �administrative functions.� In the 2006 decision, the Supreme Court interpreted that phrase more narrowly than it had in the past, saying it meant only activities related to �budget, personnel, facilities, and physical operations.�

Docket sheets in civil cases � which list the papers filed by the parties and the court actions on them as well as giving certain other information about the case � clearly don�t fit within any of those categories.

The outcome of the CCFOI�s appeal was foreordained at the FOI Commission and in the lower courts because they�re obligated to follow the state Supreme Court�s interpretation of the law. But the Supreme Court can reconsider its own precedents, and that was the CCFOI�s ultimate objective.

Anything left to argue about?

The problem, according to state judicial officials, is that the case essentially has evaporated while working its way through the process.

Of the 500 civil cases that were at issue when Valvo filed his request, docket sheets have been released in all but five. And, in each of those five cases, Superior Court judges have ruled that the docket sheets are not to be disclosed, according to a brief by Martin R. Libbin, the Judicial Department�s deputy director of legal services.

It�s unusual that the Judicial Department is taking the lead in defending the case. Ordinarily, it would be up to the FOI Commission to defend its decision in court. But the commission lost the 2006 case before the Supreme Court and might not have been eager to mount a zealous defense of the court�s reasoning in that decision.

Eric V. Turner, the FOI Commission�s associate general counsel, made clear that its views remain contrary to those of the Supreme Court, saying, �We didn�t want to file a brief against what we did.�

Even though the docket sheets in five cases remain at issue, Libbin argues that the new case is moot because the chief court administrator, to whom Valvo directed his request, lacks authority to overturn the sealing orders issued by Superior Court judges. The correct way to challenge those orders would have been to appeal each of them directly to the state Appellate Court or the Supreme Court, he says.

Allowing the FOI Commission to review a Superior Court judge�s decision to seal docket sheets in specific cases would violate the state constitution�s principle of separation of powers �in the most fundamental way,� Libbin argues.