author: Borden, J.

text:
    State of Connecticut v. Jarvis Bryant
    (15105)
    Peters, C. J., and Callahan, Borden, Berdon and Palmer, Js.
    Argued February 6
    decision released May 9, 1995

      Todd D. Femow, with whom were Thomas M. Nolan and Barbara N. Weady, certified legal interns, and, on the brief, Timothy H. Everett and David L. Polsky, certified legal intern, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen J. Sedensky III, assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant, Jarvis Bryant, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a). The defendant’s sole claim on appeal is that the trial court improperly instructed the jury on the issue of self-defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 7, 1991, the defendant shot Mervin Needham in Father Panik Village, a housing project in Bridgeport. Detective William Collette, responding to a citizen’s report, arrived at the housing project and discovered Needham’s body lying face down with blood surrounding his head. There were people around the body. Collette examined the body and discovered no vital signs.

Arkady Katsnelson, the state associate medical examiner, conducted an autopsy on Needham’s body and determined that the sole cause of death was a .38 caliber gunshot wound to the back of the head fired from a distance of greater than three feet. Detective David S. Gibbs, a state department of public safety firearms expert, determined that the fatal bullet had been fired from either a .38 caliber or a .357 magnum revolver.

On June 10, 1991, the defendant, accompanied by family members and clergy, turned himself in to the police and voluntarily made a statement concerning his participation in the shooting of Needham. The relevant portion of the defendant’s statement is as follows: “I got ... up and I had to go downtown to get some clothes. I went to the store to get some change for the bus. I seen Mervis going into the store. He had threatened me in the past. He threatened a lot of people. I had to carry a gun because I was afraid that he was going to shoot me. I went into the store and I seen him. He looked at me and I looked back at him. He left and I stayed for a while. I could see through the glass that he was outside. I could see that he had his hand in the front of his pants. He was like looking around. I was worried and stuff. I went back out. He looked at me and started to reach and then he pulled the gun out. He clicked it but it didn’t go off. He clicked towards me. Then I had a chance to get my gun out. I pulled mine out and he seen it. That’s when he started running. I started shooting at him. I started backing up. I was thinking that he could fix his gun and start shooting at me. He ran across the street and that’s when I fired one more time. That’s when he fell. I left and went to my house.”

The defendant also contended that Needham had engaged in a pattern of conduct in which he had twice attempted to rob the defendant at gunpoint, and had threatened the defendant’s family. At trial, the defendant testified that during the second robbery attempt, Needham had told him that “[tjhis time I’m going to let you go. Next time I see you I’m going to shoot you.” The defendant testified that he had purchased his weapon six months prior to the attempted robberies, but did not begin carrying the weapon until after the second robbery' attempt.

The defendant testified that he had fired his weapon at Needham five times, and that Needham had fallen on the fifth shot when he had been between 90 and 100 feet away. After Needham had fallen, the defendant fled the area. No weapon was discovered near the body.

Clarissa Crump, Needham’s girlfriend, testified to the following. The evening prior to the shooting, Need-ham had stayed with her in her third floor apartment in Father Panik Village, around the corner from Harold’s Market, near where the shooting took place. On the morning of the shooting, she had observed Need-ham dressing, and saw that he did not have a weapon. Further, she believed that his weapon had been stolen approximately one month earlier.

Crump testified further that she had sent Needham to the market to purchase milk, and, after he had left, she decided that she also wanted him to purchase cigarettes. She went to the window of her apartment in an effort to contact Needham and when she did so, she observed the defendant leaving his grandmother’s apartment, heading toward Harold’s Market. Crump testified that the defendant was carrying a small black gun. Crump left the window to get dressed. While she was dressing, she had heard gun shots. When she finished dressing, she went to see what had happened. Crump further testified that Needham had told her that he had used a weapon to “stick up” the defendant on at least one occasion.

In light of the admission of the defendant that he had fired the fatal shot, the only remaining issue for the jury to determine was whether the defendant had been justified in his use of deadly force. The trial court instructed the jury with respect to self-defense as follows: “Now, the defense is one of self-defense, and that is a statutorily defined defense, which the State has the burden of disproving in your minds from the overview of the evidence you’ve heard in this case. The defendant has the right to introduce testimony supporting the claim that the defendant acted in self-defense. But it is for you to determine, from all the facts and circumstances, and evaluate the conduct of the parties and see whether they come within the legally prescribed defense of self-defense. I will read it to you.” (Emphasis added.) The trial court then read the relevant portions of General Statutes § 53a-19. Thereafter, the trial court stated that “[t]his does not mean, however, that the defendant must prove the defense of self-defense. The burden of proof beyond a reasonable doubt remains on the State, and that means that the State must disprove the defense of self-defense beyond a reasonable doubt once the defendant raises it in the case.” (Emphasis added.)

After more fully explaining the law with respect to self-defense, the trial court instructed the jury that “there are circumstances under which the use of physical or deadly physical force are not justified. As I’ve indicated to you, a person may not use deadly physical force upon another when he knows he can avoid it with complete safety by retreating. Therefore, you have to examine the totality of the circumstances and facts that you find happened at that location at the date and time charged in the information. You’ve heard this evidence. I’m not going to recapture it for you. This should be fresh in your mind. You’ll examine the conduct of everyone that’s been testified to here in this court, and you determine what the true facts are and apply this law to those facts.

“Since the defense of self-defense is a complete defense to any homicide, if you find the defense of self-defense applies and that the State has failed to disprove, beyond a reasonable doubt, the defense of self-defense raised by the defendant, you find the defendant not guilty of any of these charges with the exception it does not apply to the second count in the information ....

“If you find the defense of self-defense does not apply, that the State has disproved the defense of self-defense beyond a reasonable doubt, you should find the defendant guilty of the crime charged . . . provided, of course, the State has proven all of the elements necessary for any one of the crimes . . . .” (Emphasis added.)

The trial court then concluded its charge to the jury stating: “After that we’ll determine the verdict must be unanimous. So you must all agree on it. You must also agree on the defense of self-defense, that it is either applicable, that it is supported by credible, reliable evidence and the law involved, impressed on the facts you find, is sufficient to show that the defendant is not guilty. You must agree on that. And if you don’t, and you have to have a unanimous verdict based on your finding that the self-defense is not disproven or proven, remember that the defendant doesn’t have any obligation to prove beyond anything. So he doesn’t have any obligation to prove beyond any reasonable doubt. And once the evidence and the claim of self-defense is in the case, it remains the State’s burden to disprove that from all the evidence put into this case. You have to determine that. Okay? And you must agree on that whether it does or doesn’t exist.” (Emphasis added.)

After the jury had deliberated for a period of time, the jury requested a clarification on the legal meaning of self-defense. In response to the jury’s request, the trial court reinstructed them on the statutory definition of self-defense, and then reminded the jury of the burden of proof, stating that “[sjelf-defense, under the proper circumstances, is a legal defense to the use of deadly force, which would otherwise be criminal. This does not mean, however, that the defendant must prove the defense of self defense. The burden of proof beyond a reasonable doubt remains on the State. It means that the State must disprove the defense of self-defense beyond a reasonable doubt once the defendant raises it.” (Emphasis added.)

After additional recitation of the legal requirements of self-defense, the trial court concluded that the jury must “examine all the facts, all the circumstances existing at that time and make those determinations. You must consider whether or not the claim of self-defense by the defendant, by the impact of credible] and reliable evidence you believed offered in this case by the State and the accused, all the evidence taken together convinces you beyond a reasonable doubt that despite that defense, the accused would be guilty.

“The burden is on the State. You understand that.”

The defendant claims that it is reasonably possible that the above instructions on self-defense, read as a whole, improperly permitted the jury to return a guilty verdict without first finding that the state had met its burden of disproving self-defense beyond a reasonable doubt, thus depriving him of his constitutional right to present a defense. We disagree.

Before turning to the specific claims of the defendant, we note that “[t]he relevant principles of law are not in dispute. [A] fundamental element of due process is the right of a defendant charged with a crime to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Bethea, 167 Conn. 80, 83, 355 A.2d 6 (1974). This fundamental constitutional right includes proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified. State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982). A defendant who asserts a recognized legal defense, the availability of which is supported by the evidence, is entitled as a matter of law to a theory of defense instruction. State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986); see also United States v. Alfonso-Perez, 535 F.2d 1362, 1365 (2d Cir. 1976). . . . State v. Anderson, 227 Conn. 518, 526, 631 A.2d 1149 (1993).

“An improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension. State v. Fuller, supra, 199 Conn. 278 ([w]here the legislature has created a legally recognized defense . . . this fundamental constitutional right includes a proper jury instruction on the elements of the defense ... so that the jury may ascertain whether the state has met its burden of disproving it beyond a reasonable doubt); see General Statutes § 53a-12 (a) ([w]hen a defense other than an affirmative defense, is raised at a trial, the state shall have the burden of disproving such defense beyond a reasonable doubt). In either instance, [t]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. State v. Anderson, supra, 227 Conn. 526-27.” (Emphasis added; internal quotation marks omitted.) State v. Ash, 231 Conn. 484, 492-93, 651 A.2d 247 (1994).

“When reviewing the challenged jury instruction, however, we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper. Blanchette v. Barrett, 229 Conn. 256,280-81, 640 A.2d 74 (1994).” (Citations omitted; internal quotation marks omitted.) State v. Leroy, 232 Conn. 1, 7-8, 653 A.2d 161 (1995).

The defendant directs our attention to two parts of the trial court’s instructions, which he contends imper-missibly created a threshold burden on the defendant to prove that the defense of self-defense applied.. Initially, the defendant argues that the trial court’s instruction that “if you find the defense of self-defense applies and that the State has failed to disprove, beyond a reasonable doubt, the defense of self-defense raised by the defendant, you find the defendant not guilty of any of these charges”; (emphasis added); permitted the jury to analyze the defendant’s defense using a two step process. First, the jury was to determine whether the defense applied, and second, only if the jury determined that the defense applied, it was to consider whether the state had disproved the defense beyond a reasonable doubt. Thus, the defendant contends that this instruction delegated to the jury the threshold question of whether the defendant had adduced sufficient evidence to raise a claim of self-defense.

Although we agree that if the instruction had delegated this question to the jury, it would have been improper, in our view the defendant’s suggested interpretation is too narrow a reading of the trial court’s instruction when read in context. The language that the defendant claims is improper was used in the context of explaining the nature of a complete defense, and not in the context of explaining to the jury how it should reach its conclusion with respect to self-defense. The language of which the defendant complains is immediately preceded by the phrase “[sjince the defense of self-defense is a complete defense to any homicide,” and immediately followed by a statement that if the jury found that self-defense applied it must “find the defendant not guilty of any of these charges.” Reading the challenged instruction against this background, we cannot conclude that it was reasonably possible that the language in question misled the jury with regard to the proper substantive rules of law of self-defense.

Any doubt in this regard is resolved by examining the language of the next paragraph of the instruction. The defendant’s argument depends upon the premise that the jury was told it was to make the initial determination as to whether the defense of self-defense “applied.” Again, we agree that, had the language in question been read to the jury in a vacuum, it is possible that the jury might have concluded that it was obligated to make that initial determination. The trial court, however, gave a clear indication in the very next paragraph that the jury could find that self-defense did not apply only if the state had disproved the defense beyond a reasonable doubt. Specifically, the trial court stated that “[i]f you find the defense of self-defense does not apply, that the State has disproved the defense of self-defense beyond a reasonable doubt, you should find the defendant guilty . . . .” (Emphasis added.) Thus, the jury, in following the trial court’s instruction, could only have rejected the defendant’s claim of self-defense if it had first concluded that the state had disproved it beyond a reasonable doubt.

Moreover, in a previous portion of the instruction, in the context of explaining the law with respect to self-defense, the trial court defined the state’s burden with respect to self-defense with complete accuracy. The trial court stated that “[s]elf-defense, under the proper circumstances, is a legal defense to the use of deadly force, which would otherwise be criminal. This does not mean, however, that the defendant must prove the defense of self-defense. The burden of proof beyond a reasonable doubt remains on the State, and that means that the State must disprove the defense of self-defense beyond a reasonable doubt once the defendant raises it in the case.” (Emphasis added.) We conclude that it was not reasonably possible that the jury, ignoring other parts of the instruction, took out of context a single portion of one sentence, and construed that as having given it the responsibility for determining whether the defense applied.

The defendant next directs our attention to a second portion of the trial court’s instruction that he claims compounded the trial court’s error. The defendant contends that the trial court’s statement at the conclusion of its initial charge that “[y]ou must also agree on the defense of self-defense, that it is either applicable, that it is supported by credible, reliable evidence and the law involved, impressed on the facts you find, is sufficient to show that the defendant is not guilty. You must agree on that. And if you don’t, and you have to have a unanimous verdict based on your finding that the self-defense is not disproven or proven, remember that the defendant doesn’t have any obligation to prove beyond anything. So he doesn’t have any obligation to prove beyond any reasonable doubt. And once the evidence and the claim of self-defense is in the case, it remains the State’s burden to disprove that from all the evidence put into this case. You have to determine that. Okay? And you must agree on that whether it does or doesn’t exist.” (Emphasis added.)

Again, portions of the instruction, taken alone, might have led the jury to conclude that the defendant had some obligation to prove by “credible, reliable evidence” that he acted in self-defense. Read in context, however, we believe that it is much more plausible that the jury understood this language as requiring it simply to consider all the evidence that it had heard, apply to that evidence the rules of law stated by the trial court, and determine unanimously whether the state had disproven the defense.

Furthermore, any possibility that the jury had been misled was effectively eliminated during the trial court’s reinstruction on self-defense, in which the court correctly stated that “[s]elf-defense, under the proper circumstances, is a legal defense to the use of deadly force, which would otherwise be criminal. This does not mean, however, that the defendant must prove the defense of self-defense. The burden of proof beyond a reasonable doubt remains on the State. It means that the State must disprove the defense of self-defense beyond a reasonable doubt once the defendant raises it.” Thus, even if we were to assume that the trial court’s earlier instruction may have improperly stated the law with respect to self-defense, the impropriety was cured by the later, proper instruction. State v. Harrison, 32 Conn. App. 687, 696-97, 631 A.2d 324, cert. denied, 227 Conn. 932, 632 A.2d 708 (1993).

In sum, although we do not approve of all of the language used by the trial court in its instructions, we conclude that when, read as a whole and in proper context, the instructions were adequate to inform the jury of the correct standards by which to gauge the defendant’s claim of self-defense. The trial court at numerous times during the instruction reminded the jury that the state had the burden of disproving beyond a reasonable doubt the defendant’s claim. Moreover, nowhere in the instruction did the trial court state that the defendant had any burden whatsoever. The jury could only have determined that the defendant had some burden of proof if it took a portion of the trial court’s instruction out of context and ignored other portions. We consistently have refused to dissect jury instructions for appellate review. We are not persuaded, therefore, that, in the context of the instructions as a whole, it was reasonably possible that the trial court’s instruction misled the jury.

The judgment is affirmed.

In this opinion the other justices concurred.

       The defendant appeals from the judgment of the trial court pursuant to General Statutes § 51-199 (b) (3).

       The defendant also was convicted of carrying a pistol without a permit in violation of General Statutes § 29-35. He does not appeal this conviction.

       Although the defendant did not take exception to the trial court’s instruction, the defendant had submitted an appropriate written request to charge, and therefore his claim is preserved for appeal. See Practice Book § 315 (“[t]he supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered”); see also Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168,194 n.23, 646 A.2d 195 (1994).

       General Statutes § 53a-19 provides: “use of physical force in DEFENSE OF PERSON, (a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       The defendant claims that the trial court’s self-defense instruction violated both his federal constitutional rights under the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. He concedes, however, that for the purposes of this appeal, the rights guaranteed under both the state and federal constitutions are coextensive. Therefore, we review his claim only under the United States constitution.

       This language appears in the trial court’s original charge. Virtually identical language appears in the court’s response to the jury’s requested reinstruction on self-defense.

       Although we affirm the judgment of the trial eourt because we conclude that the trial court’s instructions, read as a whole, accurately state the law with respect to self-defense, we nonetheless caution against using the conjunctive “and” in connecting the applicability of self-defense to the state’s burden of disproving that defense. Although it is not necessarily incorrect, it is needlessly confusing and provides no countervailing benefit.


source: Caselaw Access Project

author: Katz, J.

license: Public Domain

text:
    Luis Dos Santos v. F. D. Rich Construction Company, Inc., et al.
    (15082)
    Callahan, Beedon, Norcott, Katz and Palmer, Js.

      Argued February 10
    decision released May 9, 1995

      Richard G. Kascak, Jr., with whom, on the brief, was Serge G. Mihaly, for the appellants (named defendant et al.).

      Ernie R. Walker, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellee (defendant Second Injury Fund).
   Katz, J.

The dispositive issue in this appeal from the compensation review board (board) is the meaning of the term “agreement” within the notice requirement for the transfer of liability to the second injury fund (fund) pursuant to General Statutes (Rev. to 1985) § 31-349 of the Workers’ Compensation Act (act). The defendants F. D. Rich Construction Company, Inc. (Rich), and its workers’ compensation insurer, United States Fidelity and Guaranty Company (Fidelity), appeal from the decision of the board affirming the decision of the workers’ compensation commissioner (commissioner) that their agreement for compensation with the plaintiff, Luis Dos Santos, was defective notice under § 31-349 because it previously had neither been signed by Dos Santos nor been approved by the commissioner. We reverse the board’s decision.

The following facts are undisputed. On September 17,1986, Dos Santos suffered injury to his chest, ribs and legs during the course of his employment with Rich. As a result of this injury, he has been totally disabled since September 18,1986, and has received temporary total disability benefits from Rich pursuant to General Statutes (Rev. to 1985) § 31-307. He also has received payment from Rich for his medical and hospital bills pursuant to General Statutes (Rev. to 1985) § 31-294.

On May 25,1988, Rich sent to Dos Santos a voluntary agreement that had been signed by Fidelity, but that did not bear Dos Santos’ signature or a notation of the approval of the commissioner. See General Statutes (Rev. to 1985) § 31-296. Dos Santos signed the voluntary agreement and returned it to Rich on June 28, 1988.

On that same day, May 25, 1988, the defendants mailed a certified letter with return receipt requested to the treasurer of the state of Connecticut to provide the fund with notice of their intent to transfer to the fund, pursuant to § 31-349, liability for Dos Santos’ claim for workers’ compensation benefits. Along with this letter, the defendants included all records and documentation concerning Dos Santos’ claim, including a copy of the voluntary agreement that had been signed by Fidelity, but that had neither been signed by Dos Santos nor been approved by the commissioner. The fund acknowledged receipt of this letter by correspondence dated May 27,1988. The fund then mailed to the defendants a letter dated May 31, 1988, that again acknowledged the fund’s receipt of the letter of May 25,1988, and, further, advised the defendants that the information they had furnished was “complete and up to date.” On July 11,1988, the defendants mailed the fully executed voluntary agreement to the commissioner, and the commissioner approved it on July 14, 1988.

On August 24,1988, the defendants sent to the fund a copy of the fully signed and approved voluntary agreement related to Dos Santos’ claim. The defendants subsequently filed with the fund additional medical reports pertaining to Dos Santos’ claim. On May 13,1991, after contacts between the defendants and the fund pertaining to the transfer of Dos Santos’ claim, the fund formally advised the defendants that it would not accept transfer of Dos Santos’ case because of late notice to the fund. Following a formal hearing before a workers’ compensation commissioner on September 10, 1991, the commissioner agreed with the fund that the notice was defective because the defendants’ “failure to file with the Fund within the prescribed period both the notice and [an] executed and approved Voluntary Agreement or [a] Finding and Award constituted a failure to comply with the requirements of Section 31-349.” Further, the commissioner rejected the defendants’ estoppel claim on the ground that they had failed to establish “that the party against whom estop-pel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury.”

The defendants then appealed that decision to the board pursuant to General Statutes § 31-301. Noting that § 31-349 is subject to strict interpretation and that § 31-296 requires voluntary agreements to be signed by the parties and approved by a commissioner, the board agreed with the commissioner’s interpretation of § 31-349. The board also concluded that the commissioner had properly rejected the defendants’ estoppel argument and, accordingly, affirmed the commissioner’s finding. The defendants appealed the board’s decision to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

The defendants claim that the board incorrectly concluded that the notice provisions of § 31-349 are only satisfied by the filing of an agreement if such agreement previously had been signed by the parties, including the claimant, and approved by the commissioner. The defendants contend that the plain meaning of the phrase “copy of the agreement” in § 31-349 requires only a copy of the agreement that, in fact, existed between the parties, not a fully signed and approved “voluntary agreement” pursuant to § 31-296. (Emphasis added). They also argue that their proffered interpretation is the most logical reading of that phrase in light of the purposes of § 31-349 and the remainder of the act’s provisions. We agree with the defendants on all points.

“In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature. United Illuminating Co. v. Groppo, 220 Conn. 749, 755, 601 A.2d 1005 (1992).” (Internal quotation marks omitted.) Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 390, 618 A.2d 1340 (1993). “It is an axiom of statutory construction that legislative intent is to be determined by an analysis of the language actually used in the legislation. Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 666, 560 A.2d 975 (1989).” Vaillancourt v. New Britain Machine/Litton, supra, 391. “[W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. American Universal Ins. Co. v. DelGreco, 205 Conn. 178,193, 530 A.2d 171 (1987). We have acknowledged, however, in the context of workers’ compensation legislation, that [s]uch guidance is often of little help . . . since words seldom have precise and unvarying meanings. Jacques v. H. O. Penn Machinery Co., 166 Conn. 352, 359 n.3, 349 A.2d 847 (1974). Weinberg v. ARA Vending Co., 223 Conn. 336, 340-41, 612 A.2d 1203 (1992).

“When the language of a statute is unclear, we may ascertain the intent of the legislature by looking beyond the language to the statute’s legislative history and the purpose that the statute was intended to serve. [Weinberg v. ARA Vending Co., supra, 223 Conn.] 341. We have previously recognized that our construction of the Workers’ Compensation Act should make every part operative and harmonious with every other part insofar as is possible .... Mingachos v. CBS, Inc., 196 Conn. 91,104, 491 A.2d 368 (1985). In applying these principles, we are mindful that the legislature is presumed to have intended a just and rational result. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991).” (Internal quotation marks omitted.) Vaillancourt v. New Britain Machine/Litton, supra, 224 Conn. 390-91. Finally, although we ordinarily accord deference to the construction of the act by the commissioner and the board; see Crochiere v. Board of Education, 227 Conn. 333, 354, 630 A.2d 1027 (1993); we do not do so in this case because the meaning of “agreement” under § 31-349 is a question of law that previously has not been subject to judicial scrutiny. Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995).

Our primary focus, therefore, is on the express language of § 31-349. This section provides, inter alia, as follows: “As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier must, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award together with all information purporting to support his claim as to the liability of the second injury fund, and shall make available to the custodian all medical reports as the custodian shall desire.” General Statutes (Rev. to 1985) § 31-349. The language is clear that, in addition to providing the fund with notice “of the pending case,” the employer or insurer must provide the fund with a copy of either the agreement or the award.

In this case, it is undisputed that the defendants did not provide the fund with a copy of an award within the prescribed period. It is also uncontested, however, that Dos Santos has been receiving workers’ compensation benefits since his injury in 1986 and that the defendants, within the statutory period, did provide the fund with a copy of an agreement that was subsequently signed by Dos Santos and approved by the commissioner. Thus, the resolution of this case depends upon whether the agreement of May 25,1988, was an “agreement” within the meaning of § 31-349.

The defendants, quoting Sage v. Wilcox, 6 Conn. 81, 85 (1826), contend that the term “agreement” under § 31-349 clearly means “no more than concord-, the union of two or more minds; or a concurrence of views and intention. ... In short, every thing done or omitted, by the compact of two or more minds, is universally and familiarly called an agreement, by every one, who understands the use and meaning of language.” (Emphasis in original.) On the basis of this premise, they argue that “[njothing in this settled definition requires that an agreement be signed. . . .’’Accordingly, they claim that, because Dos Santos unquestionably had been receiving compensation benefits pursuant to an agreement with Rich and Fidelity since September 18,1986, the May 25,1988 document did not need to be signed to qualify as an “agreement” within the meaning of § 31-349. Moreover, they claim that the plain meaning of “agreement” does not require the commissioner’s prior approval.

The fund contends, on the other hand, that we should construe the term “agreement” under § 31-349 as equivalent to the phrase “voluntary agreement” under § 31-296. Emphasizing that “[t]he term voluntary agreement [under § 31-296] means a written agreement reflecting a meeting of the minds or the parties, and approved by a Commissioner if he ‘finds such agreement to conform to the provisions of this chapter in every regard,’ ” the fund argues that the defendants’ unsigned and unapproved agreement therefore fails to qualify under § 31-349. Moreover, the fund argues that “[i]t is most reasonable that in requiring the employer, or its carrier, to submit certain documents in the alternative, that the choice provided by the conjunctive ‘or’ was for the providing of documents of equivalent binding value. The voluntary agreement, alternatively referred to as the ‘agreement’ in § 31-296 becomes the equivalent legally binding instrument as a Finding and Award only after all of the statutory requisites, including the commissioner’s approval, have been met.”

These arguments indicate that the fund does not dispute the defendants’ contention that the plain and ordinary meaning of “agreement” requires neither the signatures of the parties nor the approval of the commissioner. Instead, apparently recognizing that the term “agreement” is not susceptible, in and of itself, to an interpretation that requires the present agreement to have the signatures of the parties or the formal approval of the commissioner, the fund substantially argues that the term “agreement” should be construed in light of the remainder of the act as requiring the formalities necessary for a “voluntary agreement” within the meaning of § 31-296. Consequently, we believe that the merits of the fund’s arguments and the board’s decision turn on the narrow question of whether the legislature intended the term “agreement” in § 31-349 to encompass the formalities demanded of a “voluntary agreement” under § 31-296.

Our analysis of the structure of the act and the purposes that it serves persuades us that the legislature did not intend the term “agreement” under § 31-349 to have a meaning identical to that of the term “voluntary agreement” as defined in § 31-296. First, we look to the legislature’s use of the term “agreement” in § 31-349. We presume that the legislature had a purpose in inserting in § 31-349 the word “agreement” rather than the term “voluntary agreement.” See Kinney v. State, 213 Conn. 54, 62, 566 A.2d 670 (1989), cert. denied, 498 U.S. 890, 111 S. Ct. 251, 112 L. Ed. 2d 209 (1990). That the legislature did not intend the term “agreement” to be a synonym for “voluntary agreement” is illustrated, for example, by the language of General Statutes (Rev. to 1985) § 31-303, which provides: “Payments agreed to under a voluntary agreement shall commence on or before the tenth day from the date of agreement. Payments due under an award shall commence on or before the tenth day from the date of such award.” If, as argued by the fond, the term “agreement” in the act was intended always to have the exact meaning of “voluntary agreement,” then the legislature likely would have used the term “agreement” consistently throughout the act and would have had no need to use the specific term “voluntary agreement” in § 31-303 or any other provision.

Also, a 1989 amendment to § 31-303 illustrates that the legislature knows how to require formalities in connection with an “agreement,” such as those required of a “voluntary agreement” under § 31-296, when it wants to do so. In No. 89-70 of the 1989 Public Acts, the legislature added a provision that “[p]ayments due from the Second Injury Fund shall be payable on or before the tenth business day after receipt of a fully executed agreement." (Emphasis added.) Again, if the term “agreement” already required the formalities of signatures and a commissioner’s approval, then the legislature would have had no need to use the modifier “fully executed.” Thus, although we acknowledge that relevant statutes should be interpreted consistently because “the legislature is presumed to have created a consistent body of law”; BayBank Connecticut, N.A. v. Thumlert, 222 Conn. 784, 790, 610 A.2d 658 (1992); we cannot presume, as urged by the fund, that the terms “agreement” and “voluntary agreement” are interchangeable synonyms regardless of the context within which they appear.

We are also unpersuaded by the fund’s argument that the conjunction “or” between the phrase “the copy of the agreement” and the term “award” indicates the legislature’s intent to give the two terms equivalent meanings. Although such a conjunction may indicate the legislature’s intent, in this case that intent, without further contextual support, is unclear. Indeed, although the fund argues that the conjunction indicates their equivalence, the appellants assert an equally plausible interpretation that, because § 31-296 gives “voluntary agreements” the practical effect of “awards,” the legislature must have intended “agreement” in § 31-349 to mean something other than “voluntary agreement” or it simply would have used only the term “award” to cover both awards and “voluntary agreements.” We decline to give weight to such an ambiguous grammatical distinction.

Second, we disagree with the fund that our interpretation somehow conflicts with the purposes underlying the creation of the fund and the purposes served by the notice requirement. “[I]n 1945, the legislature established the fund, primarily to encourage the employment of persons with an existing disability and, at the same time, to provide adequate workers’ compensation benefits for them. Civardi v. Norwich, supra, 231 Conn. 293; Hernandez v. Gerber Group, 222 Conn. 78, 82, 608 A.2d 87 (1992); Jacques v. H. O. Penn Machinery Co., supra, 166 Conn. 355. Additionally, by creating the fund, the legislature intended to relieve employers from the hardship of liability for those consequences of compensable injury not attributable to their employment . . . Civardi v. Norwich, supra, 293, quoting Hernandez v. Gerber Group, supra, 82; Plesz v. United Technologies Corp., 174 Conn. 181, 185, 384 A.2d 363 (1978); Jacques v. H. O. Penn Machinery Co., supra, 356; 2 A. Larson, Workmen’s Compensation Law (1994) § 59.31 (a), p. 10-492.399 and § 59.34 (a) (1), p. 10-528 . . . .” (Internal quotation marks omitted.) Davis v. Norwich, supra, 232 Conn. 320.

“The object of the ninety-day statutory notice is to enable the fund to be apprised promptly of such a claim being made, to obtain a copy of the agreement or award and to have immediate access to all medical reports. Such information is essential to enable the fund to assess promptly its alleged liability and to establish immediately its financial reserves. A further objective is to give the fund a reasonable period of time within which to investigate the claim and to prepare to meet it. Vaillancourt v. New Britain Machine/Litton, [supra, 224 Conn. 392] (construing notice requirements of § 31-349 to require strict compliance), quoting Plesz v. United Technologies Corp., supra, 174 Conn. 188.” (Internal quotation marks omitted.) Davis v. Norwich, supra, 232 Conn. 321. Our interpretation in no way frustrates the purposes of the notice requirements under § 31-349. Under our construction of the statute, in order properly to notify the fund an employer must at least submit a copy of the actual agreement between the parties, along with medical and other documentation, as required by § 31-349. These documents will, at a minimum, provide the fund with timely notice of the financial agreement reached between the parties, the nature of the employee’s claim and other medical information necessary for the fund to determine its liability. In other words, the fund is in no worse position to evaluate the proposed transfer of a particular case merely because it must look to a valid, yet unsigned and unapproved, agreement between the parties.

At the same time, our interpretation properly fulfills the reasonable expectations of employers that have hired employees with previous disabilities. These employers may hire particular employees based on their ability to look to the fund in the event of a second injury. Thus, although we note that payment from the fund “ ‘should be made only in accordance with express statutory authority’ id., 324; Civardi v. Norwich, supra, 231 Conn. 294; we conclude that the fund’s “interpretation would require a strained reading of the statute. ’ ’ Vaillancourt v. New Britain Machine/Litton, supra, 224 Conn. 392.

In sum, we conclude that a document qualifies as a copy of the “agreement” under § 31-349 if it fairly reflects the material terms of the actual arrangement for workers’ compensation benefits to which the employer (or its insurer) and the employee have assented. We agree with the defendants that the plain meaning of “agreement” under § 31-349 requires no more. Further, contrary to the fund’s position, we believe that consideration of the placement and use of the word “agreement” in the act reinforces, rather than undermines, our interpretation. Accordingly, we agree with the defendants that where, as here, “the employer/ insurer unilaterally agree to pay compensation, do pay compensation, and the employee accepts those payments, there is a binding agreement [within the meaning of § 31-349] without the employee’s signature or the commissioner’s approval.” See Adzima v. UAC/ Norden Division, 177 Conn. 107,112 n.4, 411 A.2d 924 (1979). Because the defendants delivered a copy of their actual agreement with Dos Santos to the fund within the applicable period of time, this notice was timely. Consequently, the board, relying on its determination that notice was untimely and defective, incorrectly affirmed the commissioner’s denial of the defendants’ claim for transfer of liability.

The decision of the compensation review board is reversed and the case is remanded to the board with direction to remand the case to the commissioner with direction to grant the defendants’ claim for transfer.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1985) § 31-349 provides in relevant part: “compensation FOR SECOND DISABILITY. PAYMENT OF INSURANCE COVERAGE for totally incapacitated persons. The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom. If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability, including total disability .... The employer by whom the employee is employed at the time of the injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier must, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award together with all information purporting to support his claim as to the liability of the second injury fund, and shall make available to the custodian all medical reports as the custodian shall desire. . . .”
      We look to the statute in effect at the date of injury to determine the rights and obligations between the parties. See Civardi v. Norwich, 231 Conn. 287, 293 n.8, 649 A.2d 523 (1994); Iacomacci v. Trumbull, 209 Conn. 219, 222, 550 A.2d 640 (1988). This rule applies to the employer’s right to transfer liability to the fund pursuant to § 31-349. See Plesz v. United Technologies Corp., 174 Conn. 181, 186-87 and n.2, 384 A.2d 363 (1978).

       The fund was also a defendant in the administrative proceedings. For purposes of this opinion, however, references to the defendants are to F. D. Rich Construction Company, Inc., and United States Fidelity and Guaranty Company.

       Rich also claims that the board improperly affirmed the commissioner’s determination that the second injury fund was not estopped from asserting lack of proper notice under § 31-349. In view of our determination of Rich’s first claim, we do not address its estoppel claim.

       General Statutes (Rev. to 1985) § 31-307 provides in relevant part: “compensation FOE total INCAPACITY. If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of injury . . . .”

       General Statutes (Rev. to 1985) § 31-294 provides, inter alia, that “[tjhe employer, as soon as he has knowledge of any such injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish such medical and surgical aid or hospital or nursing service as such physician or surgeon deems reasonable or necessary.”

       General Statutes (Rev. to 1985) § 31-296 provides in relevant part: “voluntary agreements. If an employer and an injured employee, or in case of fatal injury his legal representative or dependent, at a date not earlier than the expiration of the waiting period, reach an agreement in regard to compensation, such agreement shall be submitted in writing to the commissioner by the employer with a statement of the time, place and nature of the injury upon which it is based; and, if such commissioner finds such agreement to conform to the provisions of this chapter in every regard, he shall so approve it. A copy of the agreement, with a statement of the commissioner’s approval thereof, shall be delivered to each of the parties and thereafter it shall be as binding upon both parties as an award by the commissioner.”

       Section 31-349 required an employer, as a precondition to the transfer of liability to the fund, to provide notice “ninety days prior to the expiration of the one-hundred-four-week period.” In this case, because Dos Santos had been receiving benefits continuously since September 18, 1986, the statutory period ended on September 15, 1988, and ninety days prior to that date was June 18, 1988. Thus, this letter dated May 25, 1988, was within the required period of time.


text:
    Connecticut Alcohol and Drug Abuse Commission et al. v. Freedom of Information Commission et al.
    (15133)
    Peters, C. J., and Borden, Norcott, Katz and Palmer, Js.
    Argued February 8
    decision released May 9, 1995

      Kenneth H. Kennedy, Jr., assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellants (plaintiffs).

      Colleen M. Murphy, commission counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).
   Borden, J.

The dispositive issue in this appeal is whether, under the circumstances of this case, an investigative file of a sexual harassment complaint by one employee of a state agency against a coworker constitutes a “personnel or . . . similar” file within the meaning of General Statutes § 1-19 (b) (2) of the Freedom of Information Act (act). The plaintiffs, the Connecticut alcohol and drug abuse commission (CADAC) and Patricia C. Lempicki, CAD AC’s personnel administrator, appeal from the judgment of the trial court dismissing its administrative appeal from an order by the defendant freedom of information commission (FOIC). The FOIC had ordered CADAC to disclose a redacted version of an internal investigation file regarding a sexual harassment complaint. Because we conclude that this investigation file is similar to a personnel file, we reverse the trial court’s judgment and remand the case to that court with direction to remand the case to the FOIC for consideration of whether disclosure of the file would constitute an invasion of personal privacy of either of the individuals involved.

The following procedural background is undisputed. Charlene McBroom and Noemi Reyes, CADAC employees working as police officers at Blue Hills Hospital (hospital) in Hartford, had made allegations of sexual harassment against a fellow officer, Kelvin Moore. Following an internal investigation of these charges conducted by CADAC’s affirmative action officer, Moore was dismissed from his position. Thereafter, Moore filed a grievance concerning his dismissal with the state board of labor relations. Moore also filed a request with the personnel director of the hospital, who referred the matter to CADAC’s personnel administrator to examine and to copy: (1) the personnel files of McBroom and Reyes; and (2) “[a]ny and all information regarding previous complaints of sexual harassment filed by officers McBroom and Reyes, the investigation regarding these complaints and the findings by CAD AC.” It is this second portion of Moore’s request that is at issue in this case. CADAC denied Moore’s request pursuant to General Statutes § l-20a (c), because McBroom and Reyes had filed timely objections to the release of the information.

Moore appealed to the FOIC, alleging that CAD AC’s refusal to disclose the requested materials violated the act. A hearing was held before commissioner Joan M. Fitch, who had been designated as the hearing officer for the case. McBroom and Reyes were granted party status pursuant to General Statutes § l-21i (b) (l).

CADAC informed the FOIC that, in addition to the personnel files of McBroom and Reyes, it had two files concerning an investigation of a sexual harassment complaint, other than the complaint against Moore, that had been brought previously by McBroom or Reyes against a coworker other than Moore (investigation file). CADAC claimed that: (1) the personnel files of McBroom and Reyes were exempt from disclosure in their entirety pursuant to § 1-19 (b) (2); see footnote 1; (2) the investigation file constituted a “similar file” that was exempt from disclosure pursuant to § 1-19 (b) (2); see footnote 1; and (3) the investigation file was exempt from disclosure pursuant to General Statutes (Rev. to 1993) § 46a-83 (b), now § 46a-83 (g), which protects against disclosure of investigatory materials of the state commission on human rights and opportunities (CHRO).

At the conclusion of the hearing, CAD AC submitted the documents at issue to the hearing officer for an in camera inspection. Subsequently, the hearing officer filed a proposed decision that the FOIC adopted as a final decision. The FOIC determined that portions of the personnel files were exempt from disclosure pursuant to § 1-19 (b) (2) because disclosure of those portions would constitute invasions of the personal privacy of McBroom and Reyes. The FOIC ordered CAD AC to disclose only those portions of the files not exempt from disclosure, and permitted CAD AC to redact portions of the records containing information not sought by Moore. CAD AC has not challenged this part of the FOIC order.

The FOIC also determined that the investigation file did not constitute a “similar file” within the meaning of § 1-19 (b) (2), and was not, therefore, subject to exemption from disclosure pursuant to that section. Furthermore, the FOIC concluded that § 46a-83 (b) did not apply to the investigation file, because that section “applies to the confidentiality of information concerning discriminatory practice complaints filed with CHRO and does not prohibit the respondent CAD AC from disclosing records pertaining to its internal investigations of sexual harassment complaints.” See footnote 9. The FOIC concluded, therefore, that the investigation file was subject to disclosure pursuant to the disclosure provisions of the act.

The FOIC then reviewed each document in the investigation file and, in certain instances, “decline[d] to order disclosure of the information” contained therein, purportedly as an act of discretion pursuant to General Statutes § l-21i (b) (2), because such information pertained to third parties, would subject them to embarrassment or ridicule, and redaction would render the documents incomprehensible. The FOIC ordered disclosure of selected documents from the investigation file, namely, the investigative report and certain correspondence pertaining to the investigative report. See footnote 8. The FOIC stated, however, that CADAC may redact “those portions of the records that reveal the names of third parties and/or witnesses and any personally identifiable information concerning them.”

CADAC filed this administrative appeal in the trial court, challenging the FOIC’s order to release the investigation file. The trial court, O’Neill, J., stayed enforcement of the FOIC order pending the resolution of the administrative appeal.

In the trial court, CADAC renewed its claims that: (1) the investigation file constitutes a “similar file” to a personnel file, the disclosure of which would constitute an invasion of personal privacy pursuant to § 1-19 (b) (2); and (2) release of the investigation file would violate § 46a-83 (b), pertaining to CHRO investigations. Additionally, CADAC claimed for the first time that release of the file would “affect the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state,” in violation of General Statutes (Rev. to 1993) § l-19b (b) (l), because it would affect the discovery rights involved in Moore’s pending grievance before the state board of labor relations.

The trial court, Maloney, J., determined that: (1) the FOIC had properly concluded that the investigation file does not constitute a similar file; (2) the CHRO provisions of the General Statutes were inapposite; and (3) CADAC had failed to identify what rights it might have under the law of discovery or how disclosure of the file as ordered by the FOIC would affect those rights, and therefore, CADAC had not met its burden of proving an exemption under § l-19b (b) (1). Accordingly, the court dismissed CADAC’s administrative appeal. This appeal followed.

In this appeal, CADAC’s principal claim is that the investigation file constitutes a “similar file” and is exempt from disclosure pursuant to § 1-19 (b) (2). We agree that the investigation file constitutes a file similar to a personnel file. Because the FOIC did not, however, reach the question of whether disclosure of the investigation file would also constitute an invasion of personal privacy, further proceedings are required.

“When [a] claim for exemption involves § 1-19 (b) (2), the plaintiffs must meet a twofold burden of proof .... First, they must establish that the files in question are within the categories of files protected by the exemption, that is, personnel, medical or ‘similar’ files. Second, they must show that disclosure of the records would constitute an invasion of personal privacy.” (Internal quotation marks omitted.) Perkins v. Freedom of Information Commission, 228 Conn. 158, 168, 635 A.2d 783 (1993). Determination as to whether either prong has been satisfied is, in the first instance, a question of fact for the FOIC, to be determined pursuant to the appropriate legal standards. See id., 158; Chairman v. Freedom of Information Commission, 217 Conn. 193, 204, 585 A.2d 96 (1991) {Borden, J., concurring). We turn, therefore, to the question of whether the FOIC employed the proper legal standard in reaching its factual determination that the investigation file was not similar to a personnel file.

“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. Ottochian v. Freedom of Information Commission, 221 Conn. 393, 397, 604 A.2d 351 (1992). 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. . . . New Haven v. Freedom of Information Commission, 205 Conn. 767, 774, 535 A.2d 1297 (1988). Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . . Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986); see also New Haven v. Freedom of Information Commission, supra, 773-74; Wilson v. Freedom of Information Commission, 181 Conn. 324, 342-43, 435 A.2d 353 (1980).” (Internal quotation marks omitted.) Perkins v. Freedom of Information Commission, supra, 228 Conn. 164-65.

Nevertheless, we conclude that the FOIC improperly determined that the investigation file is not a “similar file.” After reviewing the documents at issue, we conclude that, properly interpreting the term “similar file,” the FOIC could only reasonably conclude that the documents at issue constitute a similar file.

Although we have delineated the applicable legal standard pertaining to the invasion of personal privacy prong of the § 1-19 (b) (2) exemption; id., 168; we have not had occasion to explain fully the scope of what constitutes a “similar” file within the meaning of the section. We are not entirely without guidance, however, because we have determined that “similar” relates back to “personnel or medical files” and, therefore, the scope of the exception is limited. “We interpret the term ‘similar files’ to encompass only files similar in nature to personnel or medical files. This interpretation is consistent with our policy of narrowly construing exceptions to the [a]ct.” (Internal quotation marks omitted.) Superintendent of Police v. Freedom of Information Commission, 222 Conn. 621, 627-28, 609 A.2d 998 (1992); Hartford v. Freedom of Information Commission, 201 Conn. 421, 432 n.11, 518 A.2d 49 (1986).

This case presents the question of when a file is “similar in nature” to personnel or medical files. We con-elude that such a determination requires a functional review of the documents at issue. Just as a “medical” file of an individual has as one of its principal purposes the furnishing of information for making medical decisions regarding that individual, a “personnel” file has as one of its principal purposes the furnishing of information for making personnel decisions regarding the individual involved. If a document or file contains material, therefore, that under ordinary circumstances would be pertinent to traditional personnel decisions, it is “similar” to a personnel file. Thus, a file containing information that would, under ordinary circumstances, be used in deciding whether an individual should, for example, be promoted, demoted, given a raise, transferred, reassigned, dismissed or subject to other such traditional personnel actions, should be considered “similar” to a personnel file for the purposes of § 1-19 (b) (2).

In this case, the FOIC made a finding of fact, without revealing its analysis, that the investigation file was not a “similar file.” The trial court, Maloney, J., in dismissing CADAC’s appeal, adopted the reasoning the FOIC espoused before it, which was that similar files “are those containing work related personnel matters such as performance evaluations and attendance records, as well as details of the employee’s personal and family life. Separate reports of incidents occurring in the workplace and investigations thereof are not ‘personnel files,’ as the FOIC interprets that term in the statute.” Although it agreed with CAD AC that its broader interpretation of the statute was not unreasonable, the court determined that, because CADAC had the burden of proving the FOIC’s interpretation unreasonable, the FOIC’s position must prevail.

We believe that the trial court gave undue deference to the interpretation of the meaning of the statute by the FOIC. The FOIC’s interpretation would limit the term “similar files” to what are, for all intents and purposes, personnel files and would render the language “similar files” superfluous. “We presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous.” (Internal quotation marks omitted.) Gateway v. DiNoia, 232 Conn. 223, 237, 654 A.2d 342 (1995); Frillici v. Westport, 231 Conn. 418, 432, 650 A.2d 557 (1994).

We see no basis for a determination that the investigation file at issue in this case is not a “similar file” as we interpret that term. While reports of incidents occurring in the workplace are not “personnel files” per se, they may be similar to personnel files in that they may contain information that would ordinarily be considered in making personnel decisions regarding the individuals involved. Such reports would be functionally similar to information contained in the individual's personnel files. Section 1-19 (b) (2) requires a case-by-case analysis to determine whether a particular file is a “similar file.”

Our in camera review of the investigation file at issue in this case leads us to conclude that it falls squarely within our definition of a “similar file.” Not only did the investigation concern issues that had the potential for the dismissal of the accused employee, the investigation file also contains a good deal of information that would be directly relevant to traditional personnel decisions regarding both the accused employee and the coworker who had filed the complaint, and that would ordinarily be considered in making such decisions. Indeed, the file discloses that certain personnel actions were taken with regard to both employees involved. We conclude, therefore, that the investigation file is similar to a personnel file with regard to both parties at issue therein.

We turn next to the second prong of the § 1-19 (b) (2) exemption, namely, whether disclosure of the file would be an invasion of personal privacy as to either or both of these employees. In Perkins v. Freedom of Information Commission, supra, 228 Conn. 175, we determined that “the invasion of personal privacy exception of § 1-19 (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.” Thus, CAD AC must show that disclosure of the file would constitute an invasion of personal privacy as we defined that phrase in Perkins. “Only by proving both prongs of this standard by a preponderance of the evidence can a party establish a right to invoke the statutory exemption so as to preclude disclosure. As we explained in Perkins, this standard implements the underlying principle that disclosure is the general rule under the [act] with exceptions to this rule being narrowly construed. The burden of establishing the applicability of an exemption clearly rests upon the party claiming the exemption. New Haven v. Freedom of Information Commission, [supra, 205 Conn. 775]. Perkins v. Freedom of Information Commission, supra, 167.” (Internal quotation marks omitted.) Kureczka v. Freedom of Information Commission, 228 Conn. 271, 277, 636 A.2d 777 (1994).

Because the FOIC determined that the investigation file was not subject to exemption pursuant to § 1-19 (b) (2), it made no determination as to whether disclosure of the documents would constitute an invasion of privacy of the complaining officer or the subject of the investigation. Such a determination is for the FOIC in the first instance. See Perkins v. Freedom of Information Commission, supra, 228 Conn. 158; Chairman v. Freedom of Information Commission, supra, 217 Conn. 204 (Borden, J., concurring). Furthermore, although the officer who had filed the sexual harassment complaint was a party to the FOIC action, the person who was the subject of the investigation, for whom the investigation file is similar to a personnel file, was not given notice or an opportunity to intervene pursuant to § l-21i (b) (1). We are compelled, therefore, to remand the matter to the FOIC, so that proper notice and an opportunity to intervene may be given to the subject of the investigation, and for a subsequent determination as to whether release of the investigation file would constitute an invasion of the privacy of the complaining officer or the subject of the investigation.

The judgment is reversed and the case is remanded to the trial court with direction to vacate the FOIC’s order compelling disclosure of the investigation file, and to remand the case to the FOIC for proper notice to the individuals involved and for a determination of whether the disclosure of any information in the investigation file would constitute an invasion of personal privacy.

In this opinion the other justices concurred.

       General Statutes § 1-19 provides in relevant part: “access to public records, exempt records . (a) Except 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 inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located or of the secretary of the state, as the case may be. Any certified record hereunder attested as a true copy by the clerk, chief or deputy of such agency or by such other person designated or empowered by law to so act, shall be competent evidence in any court of this state of the facts contained therein. Each such agency shall make, keep and maintain a record of the proceedings of its meetings.
      “(b) Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of . . . (2) per

        sonnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . (Emphasis added.)
      Unless otherwise noted, we use the current statutes throughout this opinion because there are no relevant substantive differences between these statutes and those in effect during the administrative proceedings and trial.

       Although both CADAC and its personnel administrator were plaintiffs in the trial court and are appellants in this appeal, we refer herein to the plaintiffs as CADAC.

       CADAC appealed from the dismissal of its administrative appeal to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       Moore was also named as a defendant in the trial court, but did not file a brief or otherwise participate in this appeal.

       General Statutes § l-20a provides in relevant part: “public employment CONTRACTS AS PUBLIC RECORD. OBJECTION TO DISCLOSURE OF PERSONNEL OR MEDICAL FILES. . . .
      “(b) Whenever a public agency receives a request to inspect or copy records contained in any of its employees’ personnel or medical files and similar files and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency shall immediately notify in writing (1) each employee concerned, provided such notice shall not be required to be in writing where impractical due to the large number of employees concerned and (2) the collective bargaining representative, if any, of each employee concerned. Nothing herein shall require an agency to withhold from disclosure the contents of personnel or medical files and similar files when it does not reasonably believe that such disclosure would legally constitute an invasion of personal privacy.
      “(c) A public agency which has provided notice under subsection (b) of this section shall disclose the records requested unless it receives a written objection from the employee concerned or the employee’s collective bargaining representative, if any, within seven business days from the receipt by the employee or such collective bargaining representative of the notice or, if there is no evidence of receipt of written notice, not later than nine business days from the date the notice is actually mailed, sent, posted or otherwise given. Each objection filed under this subsection shall be on a form prescribed by the public agency, which shall consist of a statement to be signed by the employee or the employee’s collective bargaining representative, under the penalties of false statement, that to the best of his knowledge, information and belief there is good ground to support it and that the objection is not interposed for delay. Upon the filing of an objection as provided in this subsection, the agency shall not disclose the requested records unless ordered to do so by the Freedom of Information Commission pursuant to section l-21i. Failure to comply with a request to inspect or copy records under this section shall constitute a denial for the purposes of section 1-211. Notwithstanding any provision of this subsection or subsection (b) of section l-21i to the contrary, if an employee’s collective bargaining representative files a written objection under this subsection, the employee may subsequently approve the disclosure of the records requested by submitting a written notice to the public agency.”

       General Statutes § l-21i provides in relevant part: “denial of access TO PUBLIC RECORDS OB MEETINGS. APPEALS. NOTICE. ORDERS. CIVIL PENALTY. SERVICE OF PROCESS UPON COMMISSION. FRIVOLOUS APPEALS. . . .
      “(b) (1) Any person denied the right to inspect or copy records under section 1-19 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by sections 1-15, l-18a, 1-19 to l-19b, inclusive, l-20a and 1-21 to l-21k, inclusive, 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 within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held. For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken. Upon receipt of such notice, the commission shall serve upon all parties, by certified or registered mail, a copy of such notice together with any other notice or order of such commission. In the case of the denial of a request to inspect or copy records contained in a public employee’s personnel or medical file or similar file under subsection (c) of section l-20a, the commission shall include with its notice or order an order requiring the public agency to notify any employee whose records are the subject of an appeal, and the employee’s collective bargaining representative, if any, of the commission’s proceedings and, if any such employee or collective bargaining representative has filed an objection under said subsection (c), the agency shall provide the required notice to such employee and collective bargaining representative by certified mail, return receipt requested or by hand delivery with a signed receipt. A public employee whose personnel or medical file or similar file is the subject of an appeal under this subsection may intervene as a party in the proceedings on the matter before the commission. Said commission shall, after due notice to the parties, hear and decide the appeal within one year after the filing of the notice of appeal, by confirming the action of the agency or ordering the agency to comply forthwith with such relief as the commission, in its sound discretion, believes appropriate to rectify the denial of any right conferred by said sections. The commission shall adopt regulations in accordance with chapter 54, establishing criteria for those appeals which shall be privileged in their assignment for hearing. Any such appeal shall be heard within thirty days after receipt of a notice of appeal and decided within sixty days after the hearing. If a notice of appeal concerns an announced agency decision to meet in executive session or an ongoing agency practice of meeting in executive sessions, for a stated purpose, the commission or a member or members of the commission designated by its chairperson shall serve notice upon the parties in accordance with this section and hold a preliminary hearing on the appeal within seventy-two hours after receipt of the notice, provided such notice shall be given to the parties at least forty-eight hours prior to such hearing. If after the preliminary hearing the commission finds probable cause to believe that the agency decision or practice is in violation of sections l-18a and 1-21, the agency shall not meet in executive session for such purpose until the commission decides the appeal. If probable cause is found by the commission, it shall conduct a final hearing on the appeal and render its decision within five days of the completion of the preliminary hearing. . . .” (Emphasis added.)

       CADAC did not disclose which officer, McBroom or Reyes, had filed this earlier claim, and it did not reveal the name of the coworker who had been accused of sexual harassment.

       The materials concerning the sexual harassment complaint were physically contained in two physical files. Because both files pertained to the same single allegation and investigation, and were treated as a single unit by the FOIC, we analyze these files as if they were one and refer to them in the singular. In using the term “investigation file” herein, we refer to those portions of the investigation report and the related correspondence that the FOIC ordered to be disclosed.

       General Statutes § l-21i provides in relevant part: “DENIAL OF ACCESS TO PUBLIC RECORDS OR MEETINGS. APPEALS. NOTICE. ORDERS. CIVIL PENALTY. SERVICE OF PROCESS UPON COMMISSION. FRIVOLOUS APPEALS. . . .
      “(b) (2) In any appeal to the Freedom of Information Commission under subdivision (1) of this subsection or subsection (c) of this section, the commission may confirm the action of the agency or order the agency to provide relief that the commission, in its discretion, believes appropriate to rectify the denial of any right conferred by sections 1-15, l-18a, 1-19 to l-19b, inclusive, l-20a, and 1-21 to l-21k, inclusive. The commission may declare null and void any action taken at any meeting which a person was denied the right to attend and may require the production or copying of any public record. In addition, upon the finding that a denial of any right created by sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars. . . .”

       General Statutes (Rev. to 1993) § l-19b provides in relevant part: “AGENCY ADMINISTRATION. DISCLOSURE OF PERSONNEL, BIRTH AND TAX records. Judicial records and proceedings. . . .
      “(b) Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be deemed in any manner to (1) affect the status of judicial records as they existed prior to October 1, 1975, nor to affect the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state or (2) require disclosure of any record of a personnel search committee which, because of name or other identifying information, would reveal the identity of an executive level employment candidate without the consent of such candidate.”

       CADAC claimed that even though the investigation file was compiled by it through an internal investigation and was not the product of a CHRO investigation, the file was nonetheless exempt from disclosure. CADAC argued that because General Statutes § 46a-68 requires that state agencies adopt and implement affirmative action plans that must be approved by the CHRO, the results of an internal investigation that had been conducted in accordance with that approved plan are subject to the same confidentiality requirements granted by § 46a-83 to the results of investigations conducted by the CHRO itself.
      CADAC also claimed exemption from disclosure because some or all of the documents at issue were obtained by the CHRO during the course of its independent investigation of the same charges. To allow disclosure of these documents, CADAC argued, would essentially nullify the confidentiality requirements of § 46a-83.
      CADAC does not reiterate these claims in this' appeal and we therefore need not address their merits.

       CADAC also makes three claims that require little discussion. CADAC claims that: (1) we are not bound to follow the FOIC’s interpretation of the statute; (2) the FOIC was prohibited from ordering the disclosure of the documents because, with respect to Moore’s pending grievance, such disclosure would affect the rights of the parties under the discovery laws of this state in violation of § l-19b (b); and (3) the FOIC had no discretion to withhold portions of the investigation file in the absence of a statutory exemption from disclosure.
      CADAC’s first argument, that we are not bound by the FOIC’s interpretation of the statute, is essentially a question of our scope of review, which we address in the context of resolving CADAC’s substantive claim.
      We need not determine the merits of CADAC’s claim that § l-19b (b) prohibits the disclosure of records if such disclosure would affect the discovery rights of litigants. We agree with the trial court that because CADAC offered no evidence at the FOIC hearing as to the discovery rights of the parties in the grievance action brought by Moore, CADAC failed to demonstrate that release of the documents would affect the discovery rights of litigants in the grievance action.
      “[T]he general rule under the Freedom of Information Act is disclosure with the exceptions to this rule being narrowly construed. The burden of establishing the applicability of an exemption clearly rests upon the party claiming the exemption.” (Internal quotation marks omitted.) Perkins v. Freedom of Information Commission, 228 Conn. 158, 167, 635 A.2d 783 (1993). Assuming, without deciding, that, during the pendency of litigation, § l-19b (b) exempts from disclosure information beyond that which is available through discovery, CADAC failed to meet its burden of establishing the applicability of the exemption because it failed to present any evidence to support its claim. Even if § l-19b (b) provides such an exemption, therefore, CADAC could not have been found to have established an entitlement to it. It would be impossible for the FOIC, the trial court, or this court to determine whether disclosure of the investigation file would conflict with the discovery provided for in the pending grievance action where no evidence was offered as to what discovery is, in fact, available.
      CADAC’s third claim, that the FOIC did not have discretion to withhold portions of documents not subject to statutory exemption, consists of two elements: (1) the FOIC went beyond its statutory authority by not releasing all the documents not subject to statutory exemption; and (2) the FOIC, by shielding certain materials from disclosure, in effect determined that these materials would constitute an invasion of personal privacy. Because CADAC sought to shield all the documents from review, it cannot claim to be aggrieved by the FOIC’s shielding of some of them. We therefore decline to review the first element of this claim. As to the second element of the claim, we leave the determination of whether disclosure of the investigation file would constitute an invasion of personal privacy to the FOIC on remand.

       After examining the legislative history of the act, and also reviewing federal case law on the corresponding section of the federal Freedom of Information Act, we conclude that neither source provides useful insight into the meaning of “similar file” under our act. The legislative history is silent on the question of the meaning of “similar file.” The federal case law is not useful because the federal courts have construed the term “similar file” differently from how we have done so. See United States Dept. of State v. Washington Post Co., 456 U.S. 595, 102 S. Ct. 1957, 72 L. Ed. 2d 358 (1982).

        Hartford v. Freedom of Information Commission, supra, 201 Conn. 421, concerned the release of police department internal investigation records arising out of a citizen complaint of misconduct. Although we concluded that such records were personnel or “similar” files, the basis of our conclusion was that the trial court had implicitly adopted this characterization and it was not contested on appeal. Superintendent of Police v. Freedom of Information Commission, supra, 222 Conn. 621, concerned the disclosure of municipal permits to carry pistols or revolvers. We determined that such permits were not “similar” to medical or personnel files.