JAY R. LIEBERMAN, M.D. v. MICHAEL ARONOW et al., SC 19452
Judicial District of New Britain
Freedom of Information; Whether Reports on Grievance Concerning UConn Health Center Faculty Member are § 10a-154a Records of “Performance and Evaluation” that are not Subject to Disclosure Under the FOIA. The plaintiff is the chairman of the orthopedic surgery department at the University of Connecticut Health Center. The defendant, an orthopedic surgeon at the hospital, filed a grievance accusing the plaintiff of “incivility, vindictiveness, attempted intimidation, disrespectfulness and harassment” directed against him, other physicians, medical students and hospital staff. The hospital’s Health Center Appeals Committee conducted an investigation of the allegations and presented a report of its findings to UConn’s president emeritus, Dr. Philip Austin. Dr. Austin conducted his own investigation and issued a report regarding the grievance to the committee. The defendant requested copies of the reports, but the university denied his request. The defendant then filed a complaint with the Freedom of Information Commission, which found that the reports were public records within the meaning of the Freedom of Information Act and that the university violated the act’s disclosure requirements by denying the defendant access to them. The plaintiff appealed to the trial court, claiming that the reports are not public records by virtue of General Statutes § 10a-154a, which provides that “[a]ny 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” without consent of the faculty member. The trial court affirmed the commission’s decision, finding that it was bound to narrowly construe the language of § 10a-154a in favor of disclosure. The court noted that, while the reports in dispute evaluate both performance and misconduct to some degree, they do not constitute performance and evaluation records under the statute because the purpose of the reports was to respond to a grievance about workplace misconduct and not primarily to create a record of performance and evaluation of a faculty member. The plaintiff appeals, claiming that, with § 10a-154a, the legislature unambiguously intended to establish a bright line rule that any record containing an evaluation of a faculty member’s performance cannot be disclosed without the faculty member’s consent. The plaintiff argues that the trial court therefore erred in applying a “primary purpose” test in determining whether the reports are subject to disclosure under the FOIA. Finally, the plaintiff contends that the trial court wrongly looked to Appellate Court precedent interpreting General Statutes § 10-151c, which exempts from disclosure “records of teacher performance and evaluation” kept by a local or regional board of education, in construing § 10a-154a.