author: Peters, C. J. Borden J.,

text:
    Karen Perkins v. Freedom of Information Commission et al.
    (14733)
    Peters, C. J., Callahan, Borden, Norcott and Palmer, Js.

      Argued September 21—
    decision released December 21, 1993

      Regina M. Hopkins-Griggs, commission counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellant (named defendant).

      William J. Dolan, for the appellee (plaintiff).
   Peters, C. J.

The principal issue in this appeal is the proper scope of the “invasion of personal privacy” exception codified in General Statutes § 1-19 (b) (2) of the Freedom of Information Act (FOIA). The defendant freedom of information commission (FOIC), ordered the defendant John Gawrys, superintendent of the New Fairfield public schools, to disclose the sick leave records of the plaintiff school teacher, Karen Perkins, to the defendants Arthur E. Azzarito and the New Fairfield Taxpayers Association (association). The plaintiff appealed to the Superior Court, which reversed the decision of the FOIC on the ground that the FOIC lacked authority to require disclosure because the request in question was purely for information rather than one for specifically identifiable records. The FOIC appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We disagree with the trial court’s ruling and therefore reverse its order sustaining the plaintiff’s appeal.

The material facts are undisputed. On June 17,1991, Azzarito, the president of the association, made a written request to the holder of records of the New Fair-field board of education for information pertaining to sick leave records regarding the psychologist position held by the plaintiff at Consolidated School. The purpose of his request was to ascertain the number of sick days that she had accumulated, the amount of money that had been paid to her to the date of his request, and the date on which she had last worked.

On June 17, 1991, pursuant to General Statutes § l-20a (b), Gawrys sent a letter to the plaintiff notifying her that the school district had received a request for the disclosure of her accumulated sick leave prior to the commencement of her sick leave for the current year, and that the district had denied the request on the grounds that disclosure would constitute an invasion of her privacy. The letter also informed the plaintiff that she had four business days from the receipt of the letter to notify the school district as to whether she had an objection to the disclosure of those records, and that the records would be disclosed absent such an objection.

The plaintiff filed a timely objection with Gawrys, who, in turn, sent a letter to Azzarito denying the records request. Thereafter, Azzarito and the association sent a letter to the FOIC urging it to require compliance with their request.

After an evidentiary hearing, the FOIC rendered its final decision ordering Gawrys to provide copies of the requested records to Azzarito and the association. The FOIC found that Azzarito had requested information limited to records concerning the plaintiffs sick pay rather than information about the nature of her illness or the state of her health. The FOIC determined that the plaintiff “has no reasonable expectation of confidentiality regarding the characterization of her compensation and absence from work so long as the characterization [is congruent with] the terms of her contract . . . .” Stating that “a reasonable person would not suffer embarrassment as a result of the disclosure of information concerning sick time and compensation, because sick time is an ordinary benefit of employment that is generally used by employees in accordance with specific contract provisions,” the FOIC decided that the “invasion of personal privacy” exception of § 1-19 (b) (2) did not apply because “the exemption was not intended to shield the misconduct of public officials from public knowledge.” Id., 3. The FOIC concluded, therefore, that Gawrys and the plaintiff had not met their burden of proof with respect to the invasion of privacy exception.

The plaintiff filed a timely appeal to the Superior Court. After a hearing, the trial court sustained her appeal. Having first determined that the plaintiff was aggrieved by the FOIC decision requiring disclosure of her sick leave records, the court then, sua sponte, framed and resolved an issue concerning the nature of the request for disclosure made by Azzarito and the association. Relying on the definition of “public records or files” contained in General Statutes § l-18a (d), the court determined that Azzarito’s request was one “for answers to questions and not a request for access to public records which might contain the answers to his questions. His request [sought] pure information and not specifically identifiable records.” (Emphasis in original.) Explaining that this distinction was “not a formal or hypertechnica! one,” the court concluded that Azzarito had failed to meet his burden of identifying the records that he sought to inspect. In the absence of a proper request, the court held that the FOIC had no way of knowing the type of documents or materials that were being sought and, thus, could not properly determine whether a FOIA violation had occurred or a FOIA exemption was applicable.

The FOIC has appealed from the trial court’s judgment sustaining the plaintiff’s appeal. The FOIC first maintains that the trial court mistakenly concluded that the form of the request made by the defendants, Azzarito and the association, deprived the FOIC of authority to find a FOIA violation. Second, the FOIC argues that the trial court should have found that, under General Statutes § 4-183 (j), the administrative record contained substantial evidence to support the commission’s order of disclosure and that its order is justified by an appropriately limited construction of the “invasion of personal privacy” exception found in § 1-19 (b) (2). We agree with both contentions.

I

We must first resolve the issue of the nature of the request that Azzarito and the association made to Gawrys. All of the parties to this case, including the FOIC, treated the request as one for the plaintiff’s sick leave records and, thus, within the province of the FOIA. The trial court nonetheless, sua sponte, characterized the request as one for “pure information,” “answers to questions,” and “not specifically identifiable [public] records,” outside the scope of the FOIC’s authority. (Emphasis in original.) We disagree with the trial court’s characterization.

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. (Emphasis added.) . . . 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.” (Citations omitted; internal quotation marks omitted.) 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.” (Citation omitted; internal quotation marks omitted.) 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).

The FOIA states that “[e]xcept as otherwise provided by any federal law or state statute [including the exceptions to the FOIA], all records maintained or kept on file by any public agency . . . 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. . . .” General Statutes § 1-19 (a). The act specifically defines “ ‘[p]ublic records or files’ ” to include “any recorded data or information relating to the conduct of the pub-lie’s business prepared, owned, used, received or retained by a public agency . . . .” General Statutes § M8a (d).

Azzarito and the association made a written request to Gawrys pertaining to the plaintiff’s sick leave records that was consistently treated, by all the parties, as a request for records. See footnote 8. Neither the plaintiff nor Gawrys ever asked for any clarification regarding the specific information that Azzarito and the association sought, and none of the parties to this case ever made any suggestion that the requested information was not part of the plaintiff’s existing public record.

Although we have not previously had the occasion to articulate an interpretation of what constitutes a FOIA records request, this issue is similar to others in which courts must defer to the exercise of administrative judgment. “The FOIC has full authority to determine the existence of public records and the propriety of their disclosure.” Board of Education v. Freedom of Information Commission, 208 Conn. 442, 454, 545 A.2d 1064 (1988). The FOIC properly, albeit implicitly, reached the conclusion that Azzarito and the association had submitted a request for records. The trial court’s contrary conclusion relied on distinctions that are overly formal and legalistic in light of the public policy expressed by the FOIA. The overarching legislative policy of the FOIA is one that favors “the open conduct of government and free public access to government records.” Wilson v. Freedom of Information Commission, supra, 328; Chairman v. Freedom of Information Commission, 217 Conn. 193, 196, 585 A.2d 96 (1991); Maher v. Freedom of Information Commission, 192 Conn. 310, 315, 472 A.2d 321 (1984). As we have repeatedly noted, “[o]ur construction of the FOIA must be guided by the policy favoring disclosure. . . .” Superintendent of Police v. Freedom of Information Commission, 222 Conn. 621, 626, 609 A.2d 998 (1992).

As a practical matter, the FOIA is used repeatedly by members of the public who are unschooled in technical, legalistic language distinctions. It would be unreasonable to deny a member of the public access to the FOIA simply because of arguable imperfections in the form in which a request for public records is couched. A talismanic insistence on the use of the word “record” would be inconsistent with the spirit and the policy of the FOIA. The trial court’s contrary ruling cannot, therefore, be sustained.

II

Although the request for the plaintiff’s sick leave records was a request within the jurisdiction of the FOIC, the question remains whether the records were exempt from disclosure pursuant to the “invasion of personal privacy” exception contained in § 1-19 (b) (2). We conclude that, in the circumstances of this case, because the inquiry was limited to a request for numerical data, the FOIC correctly ordered disclosure.

A

“[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.” New Haven v. Freedom of Information Commission, supra, 775; Superintendent of Police v. Freedom of Information Commission, supra; Ottochian v. Freedom of Information Commission, supra; Rose v. Freedom of Information Commission, 221 Conn. 217, 232, 602 A.2d 1019 (1992); Hartford v. Freedom of Information Commission, 201 Conn. 421, 431, 518 A.2d 49 (1986); Maher v. Freedom of Information Commission, supra; Wilson v. Freedom of Information Commission, supra, 329.

When the claim for exemption involves § 1-19 (b) (2), “[t]he 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.’ ” Hartford v. Freedom of Information Commission, supra, 431-32; Superintendent of Police v. Freedom of Information Commission, supra; Ottochian v. Freedom of Information Commission, supra, 399-400; Chairman v. Freedom of Information Commission, supra; Board of Education v. Freedom of Information Commission, 210 Conn. 590, 595, 556 A.2d 592 (1989). In this case, because the defendants have conceded, at oral argument, that the FOIA request sought the disclosure of personnel records, we need only determine whether their request “constitute[s] an invasion of personal privacy.” General Statutes § 1-19 (b) (2).

The FOIA contains no definition of the phrase “invasion of personal privacy.” Moreover, the parties have cited no relevant legislative history that sheds light on its meaning and we have found none. The legislature substituted the current phraseology in 1967; Public Acts 1967, No. 723, § 1; for a provision in the original FOIA, enacted in 1957, that denied access to a public record if “necessary to provide reasonable protection to the reputation or character of any person.” Public Acts 1957, No. 428, § 2. At the time of the statutory change, Representative Robert B. August stated, on the floor of the house, that its interpretation would be left to the courts. 7 H.R. Proe., Pt. 5, 1957 Sess., p. 2655.

Although this court has had previous occasions to apply the statutory exemption for “invasion of personal privacy” in the circumstances of a particular case; see, e.g., Chairman v. Freedom of Information Commission, supra, 198; we have not undertaken to articulate a comprehensive definition of what this phrase means. We have, in effect, imposed a burden of proof on a claimant for an exemption without providing guidelines as to what such a claimant must show in order to obtain relief from the general rule that public records are subject to public disclosure. The time has come to fill this void.

In the absence of express statutory guidance on the meaning of the phrase, “invasion of personal privacy,” the legislature has required us to inquire whether this phrase is a legal term of art that has “acquired a peculiar and appropriate meaning in the law” so to require it to be “construed and understood accordingly.” General Statutes § 1-1 (a). This court has stated that “legal terms . . . absent any legislative intent shown to the contrary, are to be presumed to be used in their legal sense. . . . Words with a fixed legal or judicially settled meaning must be presumed to have been used in that sense. ... In ascertaining legislative intent [rjather than using terms in their everyday sense, [t]he law uses familiar legal expressions in their familiar legal sense. ...” (Citations omitted; internal quotation marks omitted.) Peck v. Jacquemin, 196 Conn. 53, 70-71, 491 A.2d 1043 (1985); see also Southington v. State Board of Labor Relations, 210 Conn. 549, 561, 556 A.2d 166 (1989) (terms not defined in statutes should be given common or legal understanding); Doe v. Manson, 183 Conn. 183, 186, 438 A.2d 859 (1981); Faulkner v. Solazzi, 79 Conn. 541, 546, 65 A. 947 (1907). We therefore deem it appropriate to construe the phrase, “invasion of personal privacy,” according to its common-law meaning.

As a common-law matter, the privacy concerns embedded in the “invasion of personal privacy” exemption from the FOIA mirror developing notions of protection for personal privacy that have emerged in a variety of legal contexts since the latter part of the nineteenth century. Although the precise definition of a right to privacy varies with the particular context in which the right has been recognized, the statutory exemption finds its most persuasive common-law counterpart in the tort of invasion of privacy, particularly in that aspect of the tort of invasion of privacy that provides a remedy for unreasonable publicity given to a person’s private life. 3 Restatement (Second), Torts § 652D (1977). “[T]he context in which [this tort] has emerged and the considerations surrounding its development are uniquely analogous to the values and interests [that the state FOIA exemption] appears designed to protect.” Hearst Corp. v. Hoppe, 90 Wash. 2d 123, 136, 580 P.2d 246 (1978).

Section 652D of the Restatement (Second) of Torts defines a tort action for the invasion of personal privacy as being triggered by public disclosure of any matter that “(a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” By its terms, therefore, the tort action provides a private remedy to implement a public policy that closely approximates the public policy embodied in § 1-19 (b) (2) of the FOIA.

The commentary accompanying § 652D underscores the close relationship between the tort action and the statutory exemption. Comment (b) of § 652D describes the types of personal and private information that are given protection under the law of torts: “Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man’s life in his home, and some of his past history that he would rather forget. When these intimate details of his life are spread before the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of his privacy, unless the matter is one of legitimate public interest.” 3 Restatement (Second), Torts § 652D, comment b (1977).

Comment (c) of § 652D recognizes, however, that not all personal and private information is protected from public disclosure: “The rule stated in [§ 652D] gives protection only against unreasonable publicity, of a kind highly offensive to the ordinary reasonable [person]. The protection afforded to the plaintiff’s interest in his privacy must be relative to the customs of the time and place, to the occupation of the plaintiff and to the habits of his neighbors and fellow citizens. Complete privacy does not exist in this world except in a desert, and anyone who is not a hermit must expect and endure the ordinary incidents of the community life of which he is a part. . . . Even minor and moderate annoyance . . . is not sufficient to give him a cause of action under the rule stated in this Section. It is only when the publicity given to him is such that a reasonable person would feel justified in feeling seriously aggrieved by it, that the cause of action arises.” Finally, the Restatement recognizes that there is no invasion of a right to privacy when the subject matter of the publicity is of legitimate public concern. 3 Restatement (Second), Torts § 652D, comment (d) (1977).

The analogy between the tort action for “publicity given to private life” and the statutory exemption for invasion of personal privacy under § 1-19 (b) (2) of the FOIA is close and compelling. We have recognized that a reasonable expectation of privacy must be viewed from the vantage point of an objective, ordinary reasonable person when we have held that a “person’s reasonable expectation of privacy ... [is a] significant factor ... in determining if disclosure [of public records] would constitute an invasion of privacy.” (Internal quotation marks omitted.) West Hartford v. Freedom of Information Commission, 218 Conn. 256, 263, 588 A.2d 1368 (1991); Chairman v. Freedom of Information Commission, supra, 198. Therefore, the tort standard would only supply a remedy for, and § 1-19 (b) (2) of the FOIA would only bar disclosure of, information that is highly offensive to the ordinary reasonable person. The legislature has, furthermore, determined that disclosures relating to the employees of public agencies are presumptively legitimate matters of public concern. That presumption is not, however, conclusive. In Chairman v. Freedom of Information Commission, supra, we held that the disclosure of internal, departmental, personnel evaluations would constitute an invasion of privacy in part because the evaluations were conducted under appropriate confidential circumstances with the employees, thereby making such reports matters that do not legitimately concern the public. See id., 205 (Borden, J., concurring) (“[disclosing [personnel evaluations] would severely undermine the policy of full and frank exchange of information underlying the need for such reports”). On the other hand, the fact that a personnel file includes information about the acceptance of a bribe by a public employee or a medical file includes information about the incapacity of a high ranking public official to perform his or her duties because of an illness that would be considered highly offensive to a reasonable person would not preclude its disclosure if such information were determined to be of legitimate public concern.

Informed by the tort standard, the invasion of personal privacy exception of § 1-19 (b) (2) precludes disclosure, therefore, 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. Enunciation of this standard does not signal a return to the invocation of a balancing test, which we explicitly rejected in Chairman v. Freedom of Information Commission, supra, 200-201. We conclude, as have courts in other jurisdictions, that an objective standard derived from the law of torts affords useful insight into the meaning of the phrase “invasion of personal privacy.” See, e.g., Harris v. Cox Enterprises, Inc., 256 Ga. 299, 348 S.E.2d 448 (1986) (applying common-law tort standard with language similar to the Restatement standard); Webb v. Shreveport, 371 So. 2d 316 (La. App.), cert. denied, 374 So. 2d 657 (La. 1979) (applying common-law tort standard); State Employees Assn. v. Dept. of Management & Budget, 428 Mich. 104, 404 N.W.2d 606 (1987) (applying common-law standard); Jordan v. Motor Vehicles Division, 308 Or. 433, 781 P.2d 1203 (1989) (applying common-law standard); Industrial Foundation v. Texas Industrial Accident Board, 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931, 97 S. Ct. 1550, 51L. Ed. 2d 774 (1977) (applying common-law tort standard with language similar to the Restatement standard); Child Protection Group v. Cline, 177 W. Va. 29, 350 S.E.2d 541 (1986) (applying common-law tort standard with language similar to the Restatement standard); Hearst Corp. v. Hoppe, supra (applying Restatement standard). Instead, we are judging an invasion of personal privacy in terms of the objective common law concept of the “reasonable person.”

B

Having articulated the standard and burden of proof that a party must meet in order to claim an “invasion of personal privacy” exemption, we must now determine whether the plaintiff has met her burden in this case. We conclude that the FOIC correctly determined that she had failed to do so.

The plaintiff, relying on the authority of New London v. Freedom of Information Commission, Superior Court, judicial district of New London at New London, Docket No. 28067 (October 25,1978), claims that any disclosure of a named employee’s sick leave records constitutes a per se invasion of privacy. She argues that disclosure of her sick leave records would allow the recipient to compare them with the number of sick leave days allowed by her contract, enabling the recipient to know whether the plaintiff is “sickly” or “healthy.” Such knowledge, she contends, could lead to a public discussion of her health and, thus, result in her embarrassment and an invasion of her personal privacy.

“ [Unsupported conclusory allegations of counsel are not evidence and are insufficient for the application of an exemption from disclosure.” New Haven v. Freedom of Information Commission, supra, 776. “The burden of establishing the applicability of an exemption . . . requires the claimant . . . to provide more than conclusory language, generalized allegations or mere arguments of counsel. Rather, a sufficiently detailed record must reflect the reasons why an exemption applies to the materials requested.” (Citations omitted.) Id., 775-76; Superintendent of Police v. Freedom of Information Commission, supra, 627; Hartford v. Freedom of Information Commission, supra, 434-35.

We disagree with the plaintiff that a request for the numerical data dealing with a public employee’s sick leave records constitutes a per se invasion of personal privacy. The plaintiff’s proof consisted of little more than conclusory language and resort to unsubstantiated hypotheticals. Because of the lack of evidence in the record from which the FOIC could reasonably have found support under either the new standard articulated herein or the prior standard for her conclusions and hypotheticals, the plaintiff cannot possibly prove that disclosure of the numerical data in her sick leave records would be highly offensive to a reasonable person. Thus, it does not have to be determined if the disclosure of such records is of legitimate concern to the public. The plaintiff has not met her burden under the statute and, therefore, she may not prevent disclosure of the requested records by virtue of the exemption contained in § 1-19 (b) (2).

Finally, we note that when a person accepts public employment, he or she becomes a servant of and accountable to the public. As a result, that person’s reasonable expectation of privacy is diminished, especially in regard to the dates and times required to perform public duties. The public has a right to know not only who their public employees are, but also when their public employees are and are not performing their duties. We conclude that a records request under the FOIA for disclosure of the numerical data concerning an employee’s attendance records, including or limited to sick leave, does not constitute an invasion of personal privacy within the meaning of § 1-19 (b) (2). Disclosure in this instance is required.

The judgment is reversed and the case is remanded with direction to dismiss the plaintiffs appeal.

In this opinion Callahan, Norcott and Palmer, Js., concurred.

Borden J.,

concurring.

I agree with part I of the majority opinion, and with the result reached in part II. I disagree, however, with the analysis in part II. With respect to part II, namely, the application of the statutory phrase, “invasion of personal privacy,” to the facts of this case, I reach the same result as does the majority, but by a different route.

The majority opinion essentially rests on four related arguments. First, because neither the statute nor our cases have articulated a comprehensive definition of the phrase, “invasion of personal privacy,” as it is used in General Statutes § 1-19 (b) (2), guidelines are needed to fill that gap so that claimants of the statutory exemption may know what they must show. Second, the majority suggests that the legislature, by using the phrase “invasion of personal privacy,” intended the courts to construe that phrase according to its common-law meaning, by virtue of General Statutes § 1-1 (a). Third, the most persuasive common-law counterpart to the statutory phrase is the tort of invasion of privacy, particularly that strand of the tort defined by § 652D of the Restatement (Second) of Torts (1977). Fourth, the Restatement definition of the tort of invasion of privacy is public disclosure of any matter that “(a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” Thus, according to the majority, those two elements define the meaning of “invasion of privacy” as used in § 1-19 (b) (2).

I agree with the majority to the extent that its first argument rests on the notion that some further judicial definition of the statutory phrase is needed. I disagree, however, that it is now necessary to arrive at a “comprehensive definition” that will “fill the gap” purportedly encountered by claimants who wish to avail themselves of the privacy exemption in § 1-19 (b) (2). For the reasons stated below, I prefer to continue to carve out the meaning of the phrase on a case-by-case basis, as opposed to adopting a definition that is, in my view, not well adapted to the interests implicated in the Freedom of Information Act (FOIA). I also believe that such a gradual adjudicative process was what the legislature intended when it enacted the phrase in 1967.

I disagree with the suggestion of the majority that the legislature intended the phrase, “invasion of personal privacy,” as used in § 1-19 (b) (2), to have the same meaning as § 652D of the Restatement. That phrase is not, as the majority suggests, a legal term of art that has acquired a peculiar and appropriate meaning in the law, within the contemplation of § 1-1 (a). The phraseology used by the Restatement is not “invasion of personal privacy” but “one who invades the right of privacy of another.” 3 Restatement (Second), Torts § 652A (1977). Similarly, the phraseology used by our cases is “an invasion of privacy action.” Venturi v. Savitt, Inc., 191 Conn. 588, 591, 468 A.2d 933 (1983). While this may appear to be semantic quibbling, I suggest that semantic differences, albeit slight, do or should affect the determination of whether the legislature has, by using particular language, intended the language as a term of art that incorporates another body of law.

This is particularly apt here where, contrary to the majority assertion that there is no relevant legislative history, the legislative history suggests to the contrary. The quotation from Representative Robert B. August regarding the meaning of “invasion of personal privacy” is like Sherlock Holmes’ inference from the silence of a dog that usually howled: it is relevant for what it does not say. If the legislature had intended to incorporate, by virtue of the operation of § 1-1 (a), the common-law tort of invasion of privacy, as ultimately reflected in § 652D of the Restatement,1 would have thought that, when addressing the particular issue, someone would have said so, rather than saying something quite different. Instead, Representative August’s statement is more plausibly understood as an invitation to the courts to develop our own interpretive gloss on the statutory phrase based, not on the common law of torts, but on the language and purposes of the FOIA.

Moreover, my conclusion that “invasion of personal privacy” is not a term of art within the meaning of § 1-1 (a) so as to invoke § 652D of the Restatement is buttressed by the fact that, as the majority recognizes, invasion of privacy has many different meanings in the law, all of which depend on the particular context and on the particular interests that are at stake. See majority opinion, footnote 15. Thus, contrary to the majority’s argument, “invasion of personal privacy” is not a phrase that has “acquired a peculiar and appropriate meaning in the law” so as to require it to be “construed and understood accordingly.” (Emphasis added.) General Statutes § 1-1 (a). Instead, it is a phrase that has acquired a number of meanings in the law, and absent some indication that the legislature intended it to have a particular one of those meanings, we cannot say that it was intended to have a particular “peculiar and appropriate meaning.”

This brings me to another fundamental difference with the analysis employed by the majority. Section 652D of the Restatement addresses the question of the circumstances under which a tort action for invasion of the right to privacy exists. Like all tort law, it is concerned with who shall bear the loss—whether the defendant should be required to compensate the plaintiff for harm caused by the disclosure of certain private facts. It addresses the question of whether, the disclosure already having been made, the courts ought to require money to change hands. Thus, it is concerned mainly with loss shifting interests, principally between private, not governmental, parties. This set of interests simply does not fit the quite different inquiry, required by § 1-19 (b) (2), of whether presumptive disclosure by the government is prohibited.

Furthermore, the standard in § 652D of the Restatement that the information “is not of legitimate concern to the public,” adopted by the majority as part of the meaning of “invasion of personal privacy,” necessarily returns us to the balancing test that we explicitly rejected in Chairman v. Freedom of Information Commission, 217 Conn. 193, 585 A.2d 96 (1991), the disclaimer of the majority to the contrary notwithstanding. The language of the Restatement is derived from, and the commentary specifically invokes, Cox Broadcasting Corp. v. Cohen, 420 U.S. 469, 95 S. Ct. 1029, 43 L. Ed. 2d 328 (1975). See 3 Restatement (Second), Torts § 652D, comment (d) (1977). In explaining that concept in Cox Broadcasting Corp., the United States Supreme Court indicated, implicitly at least, that a balancing test was involved. “If there are privacy interests to be protected in judicial proceedings, the States must respond by means which avoid public documentation or other exposure of private information. Their political institutions must weigh the interests in privacy with the interests of the public to know and of the press to publish. ” (Emphasis added.) Cox Broadcasting Corp. v. Cohen, supra, 496.

Once we embark, in the FOIA context, on determining whether the information sought is of “legitimate concern to the public,” it will be very difficult to avoid balancing the public’s need to know with the individual’s assertion of privacy. Notions of legitimacy are necessarily contextual and fact driven, and will end up in balancing, either explicitly, or implicitly without acknowledgment. Indeed, even the fourth amendment concept of a criminal defendant’s “legitimate expectation of privacy” sometimes involves a balancing test. See State v. Mooney, 218 Conn. 85, 96, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991), citing Hudson v. Palmer, 468 U.S. 517, 527, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984) (no legitimate expectation of privacy in prison cell because society’s interest in security of penal institutions outweighs prisoner’s interest in privacy within cell).

Moreover, even if we are somehow able to avoid a balancing test, the majority, by emphasizing that offensiveness and legitimacy are two separate prongs, both of which must be established independently, has nonetheless engrafted a new concept onto the language of § 1-19 (b) (2). That section provides only that certain records are exempt from disclosure if disclosure would constitute an invasion of personal privacy. It does not provide that the invasion must be accompanied by a lack of legitimate public need for disclosure.

This conclusion is reinforced by § 1-19 (b) (l), which explicitly mentions the public’s interest in disclosure. The absence of any such language in subdivision (2) indicates that the legislature did not intend the public interest to be a factor under subdivision (2). See Chairman v. Freedom of Information Commission, supra, 200, in which we adopted the same reasoning in eschewing a balancing test in subdivision (2).

I recognize that it is convenient to adopt the Restatement formulation of the tort of invasion of privacy, because it gives us an entire body of law and analytical framework, rather than having to struggle with the concept of invasion of personal privacy on a case-by-case basis, as we have been doing. I suggest, however, that that body of law and framework are simply not what the legislature meant, and were not designed to govern issues of disclosure under the FOIA. Indeed, that body of law may well give us more than we want, because in future cases we will inevitably be confronted with precedents under § 652D of the Restatement that will be pressed upon us, with considerable persuasive force, but that may well prove unsuited to the interests protected by the FOIA.

What, then, would I substitute for the test adopted by the majority in this case? Although I agree with the majority that further guidance on the meaning of the statutory language is in order, I disagree that a comprehensive definition is now needed in order “to fill this gap.” I see no evidence, either in this record or in our cases under the FOIA generally, to suggest that the case-by-case adjudication method of defining the statutory meaning of “invasion of privacy” has hindered such claimants from securing their rights under the exemption, where warranted. Since we abandoned the balancing test in 1991; see Chairman v. Freedom of Information Commission, supra; this is only the second case that has called upon us to evaluate a claim that disclosure of material would constitute an “invasion of [the] personal privacy” of the claimant. See West Hartford v. Freedom of Information Commission, 218 Conn. 256, 588 A.2d 1368 (1991) (although ordinarily an address is not a private fact, municipal retirees should be afforded opportunity to show that, by virtue of their significant efforts, they have a reasonable expectation of privacy in their addresses). It may be, as the majority suggests, that the absence of a comprehensive definition makes it more difficult for such claimants than would otherwise be the case, but that is simply the inevitable result of being required by the legislature to meet a standard that necessarily is broadly phrased and that requires a case-by-case treatment—at least until there are sufficient cases decided that suggest, by their facts and reasoning, more definite contours.

I would conclude, instead, that the statutory language does not warrant anything more than the adoption of a general objective standard of reasonableness under all of the circumstances, in the determination of whether disclosure would constitute such an invasion. I would continue to fill the gap by referring to what we said in Chairman v. Freedom of Information Commission, supra, with further refinements required by the facts and claims in this case. In Chairman, we outlined several “significant factors in determining if disclosure would constitute an invasion of privacy.” Id., 198. These were: (1) whether the claimant had a “reasonable expectation of privacy” in the material sought to be disclosed; id.; (2) the “potential for embarrassment”; id.; (3) “whether the individual [whose privacy is at stake] originally gave the information to the government agency with the reasonable expectation that the material would be considered private”; id.; (4) the interest of government officials “in preserving the secrecy of matters that conceivably could subject them to annoyance or harassment in either their official or private lives”; id., 199; and (5) whether disclosure would severely undermine a strong public policy, such as “the need for full and frank exchange of information relating to the evaluation of public employees.” Id., 204 (Borden, J., concurring).

The plaintiff’s claims in this case warrant further explication of the first factor noted above, namely, whether the claimant had a reasonable expectation of privacy in the material. As with any elaboration of reasonableness, the standard must be applied in light of all of the circumstances of the case. In this respect, I agree with the majority that the language of comment (b) to § 652D of the Restatement is useful for that further explication—not, however, because § 652D is suggested by § 1-19 (b) (2), but because that language is simply a very good description of what a reasonable expectation of privacy is and is not in this day and age.

I would, therefore, add to the factors listed above the following additional guide to the application of the general standard of reasonableness: The protection afforded by the statutory language, “invasion of personal privacy,” must be gauged in relation to the customs of the time and place, to the occupation of the claimant, including the fact that he may be a public employee rather than a private citizen, and to the habits of his neighbors and fellow citizens. See 3 Restatement (Second), Torts § 652D, comment (c) (1977). As the commentary to the Restatement states, “[cjomplete privacy does not exist in this world except in a desert, and anyone who is not a hermit must expect and endure the ordinary incidents of the community life of which he is a part.” Id. Even moderate annoyance is not sufficient to justify the statutory privacy exemption. Only when the disclosure would be such that a reasonable person would be justified in feeling seriously aggrieved by it does the statutory exemption apply. See id.

Applying these factors, I have no difficulty concluding that, under the facts of this case, the plaintiff has not established her entitlement to the exemption. The specific information sought in this case was the number of sick days that the plaintiff had accumulated, the amount of money paid to her up to the date of the request, and the date on which she had last worked. Without belaboring the point, I would conclude that none of the factors listed above would justify the application of the statutory exemption to this information. Thus, I agree with the majority’s conclusion that disclosure in this instance is required.

       General Statutes § 1-19 provides in pertinent part: “access to public RECORDS. EXEMPT RECORDS. . . .
      “(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) personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .” (Emphasis added.)

       The Freedom of Information Act (FOIA) in its entirety is found in General Statutes §§ 1-15, l-18a, 1-19 through l-19c, l-20a through l-21a, and l-21c through l-21k.

       Although the defendants Azzarito, the association and Gawrys are appellants of record, the appeal has been prosecuted by the FOIC.

       General Statutes § l-20a provides in pertinent part: “(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 .... 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.”

       General Statutes § l-18a (d) defines “ ‘[p]ublic records or files’ ” as “any-recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.”

       General Statutes § 4-183 provides in pertinent part: “APPEAL TO SUPERIOR court. . . .
      “(j) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment.”

       Azzarito’s request stated the following: “I Arthur E. Azzarito am requesting the following information pertaining to the psychologist position held by [the plaintiff] at Consolidated School. This request according to persons at the F.O.I. Commission is not considered personal or medical. (1) Total number of sick days that were accumulated from her first day of employment up to her last day of performing her duties on 1/1/91. (2) Total number of sick days paid to her from the first day of her employment up to this date of request. (3) Total number of sick days remaining from this date of request. (4) Actual amount of monies paid to her up to the day of this request. (5) Last day she actually performed duties.”

       In the FOIC’s final decision, its repeated reference to the request made by Azzarito and the association as one for records must be taken to include an implicit ruling that the request was one for records within the jurisdiction of the FOIA. The plaintiff, in her complaint to the Superior Court, similarly characterized the request for her records. Gawrys, in all of his correspondence regarding this matter, also referred to the request as one for the plaintiffs sick leave records.

       The FOIC is an administrative agency; General Statutes § l-21j; and is, thus, governed by the Uniform Administrative Procedure Act; General Statutes § 4-166 et seq.; including § 4-183 (j), which describes the Superior Court’s standard of review of an agency decision. See footnote 6.

       General Statutes § 1-15 provides in pertinent part: “(a) Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. . . .”

       The request was actually made to the Holder of Records, Business Office, Board of Education, New Fairfield, CT, as per the instructions of Gawrys.

         Section 2 of No. 428 of the 1957 Public Acts provides: “Notwithstanding the provisions of section 1 hereof the body, agency, commission or official who has custody or control of any such public record shall refuse permission to so inspect or copy such record or records if such inspection or copying would adversely affect the public security or the financial interests of the state or any of its political subdivisions or if such denial is necessary to provide reasonable protection to the reputation or character of any person. Any such denial of such right of inspection shall be made to such resident, in writing, generally stating the reason therefor.” (Emphasis added.)

       Representative Robert B. August specifically stated: “I believe the intent of the Committee was that if the record is kept that it shall be a public record unless the custodian feels that it would not provide reasonable protection to the character or reputation of any person. The courts will decide how far this situation may go.” 7 H.R. Proc., Pt. 5,1957 Sess., pp. 2654-55.

       The notion of personal privacy first appeared as “the right to be let alone” by Judge Cooley in 1888; T. Cooley, Law of Torts (2d Ed. 1888) p. 29; and later appeared in the famous law review article by Samuel Warren and Louis Brandéis. S. Warren & L. Brandéis, “The Right to Privacy,” 4 Harv. L. Rev. 193 (1890). Since that time, numerous commentaries have been written on the subject of a right to privacy. See, e.g., H. MacNeil, Without Consent: The Ethics of Disclosing Personal Information in Public Archives (1992); comment, "A Constitutional Right to Avoid Disclosure of Personal Matter: Perfecting Privacy Analysis in J.P. v. DeSanti, 635 F.2d 1080 (6th Cir. 1981),” 71 Geo. L.J. 219 (1982); A. Kronman, “The Privacy Exemption to the Freedom of Information Act,” 9 J. Legal Stud. 727 (1980); F. McCarthy, “Privacy: Burgeoning Rights and Remedies,” 38 Conn. B.J. 555 (1964); W. Prosser, “Privacy,” 48 Cal. L. Rev. 383 (1960). For a concise treatment of the development of the right to privacy in tort law, see W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 117; W. Prosser, supra.
      In terms of the common law, almost all states recognize the right to privacy in the context of the tort of invasion of privacy. W. Prosser & W. Keeton, supra; 3 Restatement (Second), Torts §§ 652A through 652E (1977); W. Prosser, supra.

       See, e.g., Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977); Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, reh. denied, 410 U.S. 959, 93 S. Ct. 1409, 35 L. Ed. 2d 694 (1973) (abortion); Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972) (contraception); Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965) (contraception); McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 699-702, 710-11, 553 A.2d 596 (1989) (linking Connecticut case law with United States Supreme Court jurisprudence concerning the right to privacy in the context of a decision to terminate life support systems); Doe v. Maher, 40 Conn. Sup. 394, 418-32, 515 A.2d 134 (1986) (recognizing state constitutional right to privacy in context of state funding of abortions).
      Numerous commentators have attempted to define the right to privacy. For example, Ruth Gavison has defined privacy as “our concern over our accessibility to others: the extent to which we are known to others, the extent to which others have physical access to us, and the extent to which we are the subject of others’ attention.” R. Gavison, “Privacy and the Limits of Law,” 89 Yale L.J. 421, 423 (1980). Charles Fried has defined privacy as “the control we have over information about ourselves.” (Emphasis in original.) C. Fried, “Privacy,” 77 Yale L.J. 475, 482 (1968); see also W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 117. Black’s Law Dictionary defines “invasion of privacy” as “[t]he unwarranted appropriation or exploitation of one’s personality, publicizing one’s private affairs with which public has no legitimate concern, or wrongful intrusion into one’s private activities, in such a manner as to cause mental suffering, shame or humiliation to person of ordinary sensibilities. Shorter v. Retail Credit Co., D.C.S.C., 251 F.Supp. 329, 330 [D.S.C. 1966]. Violation of right which one has to be left alone and unnoticed if he so chooses. Such invasion by an individual or the government may constitute an actionable tort; though public figures have less protection than private persons.” Black’s Law Dictionary (6th Ed. 1990). This definition clearly implicates the tort of invasion of privacy stated in the Restatement. 3 Restatement (Second), Torts § 652A (2) (1977).

       See, e.g., W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 117; W. Prosser, “Privacy,” 48 Cal. L. Rev. 383 (1960).
      The American Law Institute has stated that the tort of invasion of privacy actually comprises “four distinct wrongs, whose only relation to one another is that each involves interference with the interest of the individual in leading, to some reasonable extent, a secluded and private life, free from prying eyes, ears and publications of others.” 3 Restatement (Second), Torts § 652A, comment (b) (1977). “The right of privacy is invaded by:
      “(a) unreasonable intrusion upon the seclusion of another ... or
      “(b) appropriation of the other’s name or likeness ... or
      “(c) unreasonable publicity given to the other’s private life . . . or
      “(d) publicity that unreasonably places the other in a false light before the public . . . .” Id., § 652A (2).
      Connecticut has recognized the tort of invasion of privacy. Venturi v. Savitt, Inc., 191 Conn. 588, 468 A.2d 933 (1983); Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 448 A.2d 1317 (1982); see also D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed. 1991) § 166. The tort of invasion of privacy was first recognized in Connecticut in 1959. Korn v. Rennison, 21 Conn. Sup. 400, 156 A.2d 476 (1959). This recognition occurred two years after the FOIA was first enacted and before the 1967 amendments which included the current “invasion of privacy” phraseology. See id.

       A number of other jurisdictions have reached the same conclusion under their FOIAs regarding attendance, employment or sick leave records. See, e.g., Jafari v. Dept. of Navy, 728 F.2d 247 (4th Cir. 1984) (authorizing disclosure of military reservist’s attendance records under federal FOIA); Brogan v. School Committee of Westport, 401 Mass. 306, 516 N.E.2d 159 (1987) (authorizing disclosure of attendance and absentee records of school employees); Capital Newspapers v. Burns, 67 N.Y.2d 562, 496 N.E.2d 665, 505 N.Y.S.2d 576 (1986) (authorizing disclosure of police officer’s absentee records); Buffalo News v. Housing Authority, 163 App. Div. 2d 830, 558 N.Y.S.2d 364 (1990) (requiring disclosure of public housing authority employee payroll, attendance and disciplinary records).

       General Statutes § 1-1 provides in pertinent part: “words and phrases. (a) In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.”

       When the phrase was first introduced, Representative Robert B. August stated: “I believe the intent of the Committee was that if the record is kept that it shall be a public record unless the custodian feels that it would not provide reasonable protection to the character or reputation of any person. The courts will decide how far this situation may go. ” (Emphasis added.) 7 H.R. Proc., Pt. 5, 1957 Sess., pp. 2654-55. See majority opinion, footnote 13.

       A. Doyle, Silver Blaze (1892). In this story, Sherlock Holmes solved the mystery by reasoning backwards from the fact that a dog, which usually barked, had been silent.

       I recognize, as does the majority, that § 652D of the Restatement (Second) of Torts was not formulated until 1977, ten years after the enactment of the statutory phrase at issue in this case. I also recognize that the majority’s argument is not that the legislature intended in 1967 to adopt a standard that was not formulated until 1977, but that the legislature intended the phrase to be read in its common-law meaning, and that the most persuasive common-law counterpart to the statutory phrase is the tort of invasion of privacy, which is generally understood to be defined by § 652D.

       Indeed, if the legislature had intended in 1967 simply to incorporate the common-law tort of invasion of privacy because the legislative phrase had acquired a peculiar and appropriate legal meaning, it is curious that, until the majority’s argument in this case, no one, including the freedom of information commission, which has been charged with enforcing the FOIA, has even suggested such an interpretation for the twenty-six years that the phrase has been employed under the FOIA.

       Indeed, the Restatement itself, as the majority recognizes, identifies four different types of “invasion of the right of privacy of another,” none of which has much if anything to do with the other three. I do not agree that we can legitimately say that the legislature intended one of those four to define the contours of the legislative language simply because that one seems to deal with issues similar to the legislative language, albeit in a very different context and for very different purposes.

       Indeed, under the FOIA it is the government that discloses, and, insofar as I know, there is no waiver of sovereign immunity for harm caused by such a disclosure. It is therefore anomalous to employ a standard of tort law that would not even apply to the party who makes the disclosure. In effect, the majority has substituted the administrative appeal process (assuming that the person whose privacy has purportedly been invaded appeals a freedom of information commission determination of disclosure) for what would otherwise have been a tort remedy against the disclosing agency for its past disclosure. That may be a rational public policy, but I cannot find it expressed anywhere in the FOIA.

       General Statutes § 1-19 provides in pertinent part: “access to public RECORDS. EXEMPT RECORDS. . . .
      “(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 (1) preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure . . . .”

       I note here that it is possible that some information sought to be shielded from disclosure pursuant to General Statutes § 1-19 (b) (2) may relate, not to the public employee whose personnel or medical files contains the information, but to a third party mentioned therein.


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    Louis DeBeradinis v. Zoning Commission of the City of Norwalk et al.
    (14777)
    Peters, C. J., Borden, Norcott, Katz and Palmer, Js.

      Argued October 27, 1993—
    decision released January 4, 1994

      Frank W. Murphy, with whom was Barbara Coughlan, for the appellant (plaintiff).

      Peter J. Strassberger, for the appellee (named defendant).

      David H. Wrinn, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Janet P. Brooks and Joseph Rubin, assistant attorneys general, for the appellee (defendant commissioner of environmental protection).
   Norcott, J.

In this administrative appeal, a landowner contests the validity of a trial court judgment setting aside the approval of his coastal site plan with conditions because of the statutory invalidity of one of the conditions of the approval. The plaintiff, Louis DeBeradinis, filed with the defendant zoning commission of the town of Norwalk (commission) an application for coastal site plan review to allow the expansion of an existing recycling operation onto an adjoining parcel of real estate located within the Connecticut coastal area and Norwalk coastal boundary as delineated by General Statutes § 22a-94. The commission approved the plan after a public hearing, but added six conditions including a grant by the plaintiff of an easement to provide public access along the Norwalk River. The plaintiff appealed the commission’s decision to the Superior Court. The commissioner of environmental protection (commissioner), on his own motion, was made a party defendant in the appeal. The commissioner argued that a remand was necessary as a result of the commission’s failure to make written findings as required by General Statutes § 22a-106.* * The trial court retained jurisdiction over the matter, but ordered a remand “for the limited purpose of having the defendant zoning commission submit written findings for the decision entered on the plaintiff’s application.” After the submission of written findings by the commission, the trial court heard the plaintiff’s appeal, found that a condition imposed by the commission was illegal because it did not mitigate the potential adverse impacts of the plaintiff’s plan and reversed the commission’s decision to approve the plan. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm.

The relevant facts are as follows. The plaintiff owns two adjoining parcels of real estate located within the coastal boundary of the town of Norwalk. One of the lots (lot one) is located inland of the other (lot two), which fronts along the Norwalk River. On lot one, the plaintiff operates a recycling business for which he received zoning and coastal site plan approval from the commission in 1988. The operation consists of a warehouse, repair shop and rock crushing machinery. The recycling procedure involves the receipt from local contractors of blasted rock, concrete and other demolition by-products, which the plaintiff processes into crushed stone, aggregate and other usable construction materials. As part of the operation, the plaintiff also stockpiles both raw and recycled materials until they have been processed and sold. In 1990, due to decreased demand for the plaintiff’s product and increased demand from local contractors for the disposal of the raw materials, the plaintiff began stockpiling materials on lot two.

In August, 1990, in order to bring the operation into compliance with the local zoning ordinances, the plaintiff filed an application for zoning approval and coastal site plan review with the commission. The plan called for the expansion of the plaintiff's recycling operation. Specifically, the plaintiff sought approval for the temporary stockpiling of recyclable material on lot two. The Norwalk zoning enforcement officer found that this practice complied with the Industrial Zone designation of the lot and approved the use.

In a subsequent letter, the department of environmental protection (department), per General Statutes § 22a-109 (d), offered its comments and recommendations with regard to the plaintiffs application. In its letter, the department noted that the expansion of the recycling operation is not a water-dependent use and suggested that it could be made water-dependent by the addition of a public access walkway running along the Norwalk River.

The commission held a public hearing regarding the coastal site plan. At the hearing, the plaintiffs attorney, Kenneth Hapke, made opening and closing statements and answered questions posed by the commission. Arguing for the approval of the plan without modifications or conditions, Hapke emphasized the fact that the ongoing recycling operation is in compliance with the zoning of lot two, the Norwalk noise ordinance and the air pollution control laws of the state. In response to the department’s letter, he argued that due to issues of safety, public access to the river via lot two would be incompatible with the plaintiff’s proposed industrial use. In response to a question from the commission regarding the future use of lot two, Hapke stated that “a water related use is a real possibility,” but that the plaintiff had not yet settled on a firm plan. The plaintiff testified as to the specific operation of the recycling plant. He stressed the temporary nature of the use, noting that the machinery and equipment used is all portable and could easily be removed from the property. The plaintiff also offered the testimony of nine local contractors. The testimony of all nine focused on the need for a local recycling operation and the good character of the plaintiff. One attendee, Norwalk councilman Hempstead, spoke in opposition to the site plan on behalf of the residents of the neighborhood in which the plaintiff’s operation is located. Hempstead voiced concerns regarding excessive levels of noise and flying dust. He also expressed concern that the proposed stockpiling had already begun without approval and that there was possible dumping in the river.

At its next regularly scheduled meeting, the commission began deliberations on the application. The commission discussed the need to make the use water-dependent as pointed out by the letter from the department and raised concerns regarding containment of the stockpiles. At this meeting, the commission voted to condition any future approval of the plaintiff’s application on the provision, by easement, of a fifteen foot wide public accessway and construction of a nine foot wide earthen berm to protect the riverfront. By way of clarification, the commission decided that the easement was to be granted immediately, but that an actual walkway would not be built until sometime in the future. At its next meeting, the commission decided to approve the plaintiffs application for coastal site plan review with six stipulated conditions, including the access easement.

The plaintiff appealed to the trial court, which reversed the commission’s decision. In reaching its decision, the trial court reviewed the record before the commission and concluded that it contained sufficient evidence to support the commission’s finding that the potential adverse impacts of the plaintiff’s proposal on future water-dependent development opportunities and activities were unacceptable. The trial court, however, also concluded, on statutory grounds, that the commission had acted illegally by conditioning the approval of the plaintiff’s application on the grant of a public access easement along the waterfront because the condition did not mitigate the potential adverse impacts of the proposal. Having determined that the invalid condition was an “essential component” of the approval of the plaintiff’s application, the court rendered judgment reversing the commission’s decision, thereby voiding the approval of the plaintiff’s application.

The plaintiff has appealed from the judgment, claiming that the trial court improperly: (1) declined to decide whether conditioning the commission’s approval of the coastal site plan on the grant of a public access easement resulted in an unconstitutional taking without compensation; (2) concluded that there was sufficient evidence in the record to support the commission’s finding that the proposed use had potential adverse impacts on future water-dependent development activities; and (3) concluded that the commission’s entire decision was invalidated as a result of the illegality of the fourth condition.

I

The plaintiff first claims that the trial court improperly failed to conclude that conditioning the commission’s approval of his coastal site plan on the grant of a public access easement resulted in an unconstitutional taking. We disagree. The trial court properly followed “ ‘ “the recognized policy of self-restraint and the basic judicial duty to eschew unnecessary determinations of constitutional questions.” Negron v. Warden, 180 Conn. 153, 166, 429 A.2d 841 (1980).’ ” State v. Champagne, 206 Conn. 421, 437, 538 A.2d 193 (1988). Indeed, wherever possible, it is incumbent upon a court to consider statutory issues before reaching constitutional questions. Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 586 n.4, 590 A.2d 447 (1991).

The trial court first concluded on statutory grounds that the condition was illegal and therefore unenforceable. The power of the commission to require that the plaintiff file a coastal site plan and impose conditions on its approval is derived from the Coastal Management Act (act), General Statutes §§ 22a-90 through 22a-112. The act “delegates the administration of the state-wide policy of planned coastal development to local agencies charged with responsibility for zoning and planning decisions. See General Statutes §§ 22a-105, 22a-106. The act envisages a single review process, during which proposals for development within the coastal boundary will simultaneously be reviewed for compliance with local zoning requirements and for consistency with the policies of planned coastal management.” Vartuli v. Sotire, 192 Conn. 353, 358, 472 A.2d 336 (1984). Toward this end, the city of Norwalk has enacted § 118-1110 of its municipal code, which requires that for property located within the coastal boundary “[a]n application for coastal site plan review in accordance with Sections 22a-105 (c) and 22a-106 (c) of the [act], as amended, shall be filed with the Zoning Inspector in addition to an application for zoning approval, zoning variance, Special Permit or special exception.” Norwalk Code § 118-1110 B (2) (b).

Once an application for coastal site plan review is filed, the zoning commission is empowered to “approve, modify, condition or deny the activity proposed . . . to ensure that the potential adverse impacts of the proposed activity on both coastal resources and future water-dependent development activities are acceptable.” General Statutes § 22a-105 (e). The scope of the conditions that may be imposed by the commission is limited by the requirement that they mitigate the adverse impacts of the proposed use. General Statutes § 22a-106 (e).

The trial court held that the commission was not authorized to condition its approval of the plaintiffs coastal site plan as it did “because the condition does not mitigate the adverse impacts as required under General Statutes § 22a-106 (e).” Having found the condition unenforceable under the act, the trial court properly concluded that “the constitutional issues raised by the plaintiff need not be reached.”

Although none of the parties has challenged the trial court’s ruling invalidating the condition under the act, the plaintiff, nonetheless, claims that it was improper for the court not to decide his claim that the imposition of the condition resulted in an unconstitutional taking. He argues that the clear intention of the commission to reimpose the condition of a public access easement requires us to reach this issue. This claim is without merit.

Before being entitled to judicial review of his takings claim, the plaintiff has the burden of showing that he has been finally deprived by the commission of the use of his property. Smith v. Zoning Board of Appeals, 227 Conn. 71, 99, 629 A.2d 1089 (1993); Gil v. Inland Wetlands Agency, 219 Conn. 404, 415, 593 A.2d 1368 (1991). As a threshold matter, the plaintiff thus bears the difficult burden of proving that the commission will not allow any reasonable use of his property. Gil v. Inland Wetlands Agency, supra. The plaintiff has failed to cite to, and our review has failed to reveal, any evidence in the record manifesting an intent on behalf of the commission to disregard the ruling of the trial court. Although the commission may in fact impose a condition on a subsequent application, this court may not speculate as to whether or how the commission might condition its subsequent approval of a future application. Consequently, we decline, as the trial court properly did, to address the plaintiff’s constitutional claim.

II

The plaintiff next claims that the trial court improperly concluded that there was sufficient evidence in the record to support the commission’s finding that the proposed use had potential adverse impacts on future water-dependent development activities. The plaintiff argues that, as a result, the commission lacked the power to impose conditions on the approval of his application. We disagree. While it is true that the act requires a finding of adverse impact antecedent to the imposition of conditions, the plaintiffs claim must fail because, as the trial court properly concluded, there was substantial evidence in the record to support the commission’s finding.

With respect to review of a coastal site plan, “ '[proceedings before planning and zoning commissions are classified as administrative.’ Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, 212 Conn. 727, 733, 563 A.2d 1347 (1989). ‘Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached. Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979). The action of the commission should be sustained if even one of the stated reasons is sufficient to support it.’ Primerica v. Planning & Zoning Commission, 211 Conn. 85, 96, 558 A.2d 646 (1989); see also Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539-40, 525 A.2d 940 (1987). ‘The evidence, however, to support any such reason must be substantial . . . .’ Huck v. Inland Wetlands & Watercourses Agency, supra, 540. ‘This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. . . . [It] is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration. . . . [It] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action. . . . [I]t is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.’ (Citations omitted; internal quotation marks omitted.) Id., 541.” Property Group, Inc. v. Planning & Zoning Commission, 226 Conn. 684, 697-98, 628 A.2d 1277 (1993).

Adverse impacts on future water-dependent development opportunities and activities “include but are not limited to (A) locating a non-water-dependent use at a site that (i) is physically suited for a water-dependent use for which there is a reasonable demand or (ii) has been identified for a water-dependent use in the plan of development of the municipality or the zoning regulations . . . .” General Statutes § 22a-93 (17). “ ‘Water-dependent uses’ means those uses and facilities which require direct access to, or location in, marine or tidal waters and which therefore cannot be located inland, including but not limited to: Marinas, recreational and commercial fishing and boating facilities, fínfish and shellfish processing plants, waterfront dock and port facilities, shipyards and boat building facilities, water-based recreational uses . . . and uses which provide general public access to marine or tidal waters.” (Emphasis added.) General Statutes § 22a-93 (16).

It is undisputed that the stockpiling of materials on lot two is a “non-water-dependent use.” In order to prevail, therefore, the plaintiff must show that there is not substantial evidence in the record that the property either is suitable for a water-dependent use for which there is a reasonable demand or is identified for such use in the Norwalk plan of development.

A review of the record reveals substantial evidence that the site is suitable for a water-dependent use and that there is a reasonable demand for that use. The department, in its letter to the commission, stated its opinion that the site was reasonably suited for a water-dependent use. Specifically, the department suggested that the site was suitable to provide general public access to the Norwalk River through the erection of a walkway that could easily be linked to an existing riverfront walkway located on property abutting lot two to the north.

The record also contains a list of six improved properties located along the Norwalk River, including the site abutting lot two to the north, that have provided public access to the river in order to gain coastal site plan approval. The plaintiff argues that these grants of public access do not support the commission’s findings because they are merely examples of acquiescence by other property owners and not evidence of adverse impacts. These grants, however, do support the commission’s finding in two ways. First, they are evidence that similarly situated properties are suitable for a water-dependent use. The commission could have inferred from this evidence that the plaintiff’s property was also so suited. Second, they are evidence of a demand for this water-dependent use in the plaintiff’s locality.

Moreover, there is substantial evidence in the record showing that the plaintiff’s property has been identified for a water-dependent use in the plan of development of the city of Norwalk. The commission had before it six separate plans of development passed by the Norwalk common council and other municipal agencies dating from 1979 through 1990. These plans advocate obtaining public walkway easements from riverfront property owners to increase public access to the Norwalk River and are evidence of a longstanding plan of development contemplating the same.

On the basis of this record, we conclude that there is substantial evidence supporting the commission’s finding of potential adverse impacts on future water-dependent development opportunities and activities.

Ill

The plaintiff next claims that the trial court improperly reversed the entire decision of the commission. He argues that the trial court should have stricken from the commission’s decision the illegal condition requiring a public access easement, but permitted its approval of his application to stand. Although the imposition of an unlawful condition does not necessarily render a zoning authority’s entire decision illegal and inefficacious; Beckish v. Planning & Zoning Commission, 162 Conn. 11, 18, 291 A.2d 208 (1971); where the void condition was an essential or integral component of the zoning authority’s decision it cannot be upheld. Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 66, 574 A.2d 212 (1990). We conclude that in this case, the grant of public access was an essential and integral element of the commission’s decision and that its invalidation required reversal of the entire decision.

As noted earlier in this opinion, the commission found that the plaintiff’s proposal had potential adverse impacts on future water-dependent development opportunities and activities. The void condition was imposed by the commission in order to mitigate the potential adverse impacts of the plaintiff’s proposal by adding a water-dependent component to the proposed use that was not water-dependent. See General Statutes §§ 22a-105 and 22a-106. None of the other five conditions imposed on the approval of the plaintiff’s coastal site plan can be read as serving this purpose. See footnote 6. Under these circumstances, we cannot conclude that the commission would have approved the plaintiff’s application if it had been aware that the condition it had imposed could not be enforced. The condition was, therefore, an essential component of the commission’s decision. As a result, the trial court properly held that the avoidance of the condition required reversal of the commission’s decision in its entirety.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 22a-109 provides in relevant part: “(a) A coastal site plan shall be filed with the municipal zoning commission to aid in determining the conformity of a proposed building, use, structure, or shoreline flood and erosion control structure as defined in subsection (c), fully or partially within the coastal boundary, with the specific provisions of the zoning regulations of the municipality and the provisions of sections 22a-105 and22a-106 . . . and any regulations adopted thereunder. . . . A coastal site plan required under this section may be modified or denied if it fails to comply with the requirements already set forth in the zoning regulations of the municipality and, in addition, the coastal site plan may be modified, conditioned or denied in accordance with the procedures and criteria listed in sections 22a-105 and 22a-106. . . . Review of a coastal site plan under the requirements of this section shall supersede any review required by the municipality under subsection (g) of section 8-3 and shall be in addition to any applicable zoning regulations of any special district exercising zoning authority under special act. The provisions of this section shall not be construed to limit the authority of the commissioner of environmental protection under sections 22a-359 to 22a-363, inclusive.”

       General Statutes § 22a-94 provides in relevant part: “coastal area; COASTAL BOUNDARY, commissioner to prepare maps, (a) The Connecticut coastal area shall include the land and water within the area delineated by the following: The westerly, southerly and easterly limits of the state’s jurisdiction in Long Island Sound; the towns of Greenwich, Stamford, Darien, Norwalk, Westport, Fairfield, Bridgeport, Stratford, Shelton, Milford, Orange, West Haven, New Haven, Hamden, North Haven, East Haven, Branford, Guilford, Madison, Clinton, Westbrook, Deep River, Chester, Essex, Old Saybrook, Lyme, Old Lyme, East Lyme, Waterford, New London, Montville, Norwich, Preston, Ledyard, Groton and Stonington.
      “(b) Within the coastal area, there shall be a coastal boundary which shall be a continuous line delineated on the landward side by the interior contour elevation of the one hundred year frequency coastal flood zone, as defined and determined by the National Flood Insurance Act, as amended (U.S.C. 42 Section 4101, P.L. 93-234), or a one thousand foot linear setback measured from the mean high water mark in coastal waters, or a one thousand foot linear setback measured from the inland boundary of tidal wetlands mapped under section 22a-20, whichever is farthest inland; and shall be delineated on the seaward side by the seaward extent of the jurisdiction of the state. . . .
      “(f) A municipal coastal boundary may be adopted by the municipal planning commission of each coastal municipality in accordance with the notice, hearing and other procedural requirements of section 8-24. Such boundary may be delineated by roads, property lines or other identifiable natural or man-made features, provided such boundary shall approximate and in no event diminish the area within the coastal boundary as defined in subsection (b) and as mapped under subsection (d). Such boundary shall be sufficiently precise to demonstrate whether the holdings of a property owner, or portions thereof, lie within the boundary. Upon adoption such boundary shall be submitted to the commissioner for mapping in accordance with subsection (c). The municipal planning commission may, at its own discretion or upon request of a property owner, amend the coastal boundary in accordance with the procedures and criteria of this subsection.
      “(g) All property lying within the coastal boundary shall be subject to the regulatory, development and planning requirements of this chapter.”

       General Statutes § 22a-106 provides in relevant part: “(d) A municipal board or commission approving, modifying, conditioning or denying a coastal site plan on the basis of the criteria listed in subsection (b) of this section shall state in writing the findings and reasons for its action.
      “(e) In approving any activity proposed in a coastal site plan, the municipal board or commission shall make a written finding that the proposed activity with any conditions or modifications imposed by the board: (1) Is consistent with all applicable goals and policies in section 22a-92; (2) incorporates as conditions or modifications all reasonable measures which would mitigate the adverse impacts of the proposed activity on both coastal resources and future water-dependent development activities.”

       General Statutes § 22a-109 (d) provides: “A copy of each coastal site plan submitted for any shoreline flood and erosion control structure shall be referred to the commissioner of environmental protection within fifteen days of its receipt by the zoning commission. The day of receipt shall be determined in accordance with subsection (c) of section 8-7d. The commissioner may comment on and make recommendations on such plans. Such comments and recommendations shall be submitted to the zoning commission within thirty-five days of the date of receipt of the coastal site plan by the commissioner and shall be considered by the zoning commission before final action on the plan. If the commissioner fails to comment on a plan within the thirty-five-day period or any extension granted by the zoning commission, the zoning commission may take final action on such plan. Failure to comment by the commissioner shall not be construed to be approval or disapproval.”

       General Statutes § 22a-109 (e) provides in relevant part: “The zoning commission may, at its discretion, hold a hearing on a coastal site plan required by this section.”

       The commission, by a four to three vote, passed the following resolution: “RESOLVED that CAM application # 17-90, L. DeBeradinis, 5 South Street, for the expansion of a rock/concrete recycling/processing operation be approved with the following conditions:
      1. That a surety in the amount of $25,000 be submitted to guarantee the construction of the proposed berm and associated landscaping; and
      2. That the area waterward of the berm be stabilized; and
      3. That proper erosion controls be installed and maintained until the berm is stabilized; and
      4. That a 15' wide public access easement acceptable to the Commission and the Corporation Council be granted along the waterfront; and
      5. That the landscaping be continued along the entire length of the berm; and
      6. That proper dust control measures be used to minimize any possible dust problem; and
      Be It Further Resolved that the proposal complies with applicable coastal resource and use policies; and
      Be It Further Resolved that the effective date of this approval shall be December 7, 1990.”

       The commissioner argues that the commission never made a determination that there were potential adverse impacts. The commissioner relies on the language in General Statutes § 22a-106 (d), which provides that municipal boards and commissions “shall state in writing the findings and reasons for its action.” The commission’s written finding is inadequate, the commissioner claims, because it states that the potential adverse impacts are unacceptable, but does not specifically identify them. As a result, the commissioner argues, the case should have been remanded to allow the commission “to fulfill its statutory duty.”
      This claim should properly have been raised by a cross appeal. Practice Book § 4005. Although the commissioner has not filed a cross appeal, it is within the discretion of this court to address the issue despite the procedural defect. See Prokolkin v. General Motors Corp., 170 Conn. 289, 304, 365 A.2d 1180 (1976); DiSesa v. Hickey, 160 Conn. 250, 262, 278 A.2d 785 (1971). Because the issue has been fully briefed and it appears that the parties will not be prejudiced, we consider the commissioner’s claim on its merits and reject it for the following reasons. It is clear from the commission’s written finding that it found potential adverse impacts. As the commissioner correctly argues, it is impossible to find that something is unacceptable without first finding that it exists. The fact that the commission did not explicitly list the potential adverse impacts found does not invalidate its decision. We have consistently held that it is the duty of a reviewing court to search the record before it for evidence supporting the decision of a local zoning board. Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 608, 569 A.2d 1094 (1990); A. P. & W. Holding Corp. v. Planning & Zoning Board, 167 Conn. 182, 186, 355 A.2d 91 (1974); Morningside Assn. v. Planning & Zoning Board, 162 Conn. 154, 156, 292 A.2d 893 (1972). We recently have held that this is true where an agency is directed by statute to state its findings and reasons therefor on the record. Samperi v. Inland Wetlands Agency, 226 Conn. 579, 589, 628 A.2d 1286 (1993). In Samperi, we recognized that “ ‘[c]ourts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions.’ ” Id., 596. Such caution is particularly appropriate when reviewing the decision of a local land use commission composed of laypersons whose procedural savoir-faire may not rise to the sophisticated level needed to achieve strict compliance with the statutory directions under which they operate. Id. This reasoning applies with equal force to the Coastal Management Act directive at issue in the present case. The commission’s written finding clearly implies that it found potential adverse impacts. Such a finding satisfies the statutory directive subject to the necessity that it must be supported by substantial evidence in the record.

       In its brief to this court, the commission notes that the plaintiff has admitted, both before the trial court and in the plaintiffs brief to this court, that the property is suitable for future water-dependent uses. Specifically, the plaintiff asserted that he purchased lot two in order to gain access to the water. On appeal to the trial court, the plaintiff offered the testimony of John Roberge, an engineer specializing in dredging and construction of coastal structures. Roberge testified that it was feasible to install an 800 foot bulkhead suitable for the mooring of barges capable of shipping raw and processed materials to and from the recycling operation. Furthermore, Frank Brennan, the plaintiffs real estate appraiser, testified before the trial court that the highest and best use of lot two would be the expansion of the recycling operation to include the maritime shipping component. Because we conclude that the administrative record supports the findings regarding water-dependent use, we need not consider this argument of the commission.


author: Per Curiam.

text:
    First Charter National Bank v. Robert A. Ross et al.
    (14688)
    Peters, C. J., Borden, Norcott, Katz and Palmer, Js.
    Argued December 7, 1993—
    decision released January 4, 1994

      Richard L. Newman, with whom, on the brief, was Thomas S. Hyman, for the appellant (defendant Ann Ross).

      Michael S. McKenna, for the appellee (plaintiff).
   Per Curiam.

In this foreclosure action, we granted certification to review a determination by the Appellate Court that the fraudulent conduct of one guarantor of a corporate obligation in procuring the signature of a coguarantor should not be imputed to the creditor named in the guarantee. The plaintiff, First Charter National Bank, initiated an action to foreclose a mortgage executed by the defendants Robert A. Ross and Ann D. Ross in conjunction with their written guarantee of a $250,000 loan to the Midland Textile Corporation by a bank that was a predecessor of the plaintiff.

After a default by the defendant Robert A. Ross, the trial court rendered judgment ordering foreclosure by sale against his interest in the mortgaged property. The defendant Ann D. Ross, however, asserted a number of defenses to the plaintiff’s foreclosure action. In one of these defenses she alleged, and the trial court found, that she had been fraudulently induced to execute the mortgage by the intentional misrepresentations of her former husband, the defendant Robert A. Ross. The trial court further found that the misrepresentations of the defendant Robert A. Ross were to be imputed to the plaintiff because of the existence of an agency relationship between the plaintiff and the defendant Robert A. Ross.

On the plaintiff’s appeal to the Appellate Court, that court reversed the trial court’s judgment with respect to the defendant Ann D. Ross and ordered a new trial. First Charter National Bank v. Ross, 29 Conn. App. 667, 617 A.2d 909 (1992). Although concurring in the trial court’s finding that the signature of the defendant Ann D. Ross on the mortgage had been fraudulently procured, the Appellate Court concluded that the fraud of the defendant Robert A. Ross could not be imputed to the plaintiff. The Appellate Court determined that there was no evidence in the record to support the trial court’s finding of an agency relationship between the plaintiff and the defendant Robert A. Ross. Id., 673. To review the propriety of the Appellate Court’s appraisal of the relationship between the parties, this court granted a petition for certification filed by the defendant Ann D. Ross.

After examining the record on appeal and after considering the briefs and the arguments of the parties, we have concluded that certification was improvidently granted and that the appeal should be dismissed. The issues raised by the certified appeal have been fully and persuasively considered in the opinion of the Appellate Court; id.; and it would serve no useful purpose for us to repeat the discussion therein contained. See Arway v. Bloom, 227 Conn. 799, 801-802, 633 A.2d 281 (1993); Fleet Bank of Connecticut v. Dowling, 225 Conn. 447, 449, 623 A.2d 1005 (1993); Hyatt v. Milford, 224 Conn. 441, 445, 619 A.2d 450 (1993).

The appeal is dismissed.

       The Concord National Bank was the creditor to whom Midland Textile Corporation was indebted, and was the named promisee of the guarantee issued by the Rosses. Subsequently, the Concord National Bank consolidated its banking operations with another bank to become First Charter National Bank, the plaintiff in this case.

       The Appellate Court also dismissed, for lack of aggrievement, a cross appeal filed by the defendant Ann D. Ross. First Charter National Bank v. Ross, 29 Conn. App. 667, 674-75, 617 A.2d 909 (1992).

       We granted the petition for certification limited to the following issue: “Was the Appellate Court correct when it reversed the trial court’s determination that Robert A. Ross acted as the plaintiff’s agent and, as such, his fraud should be imputed to the plaintiff?” First Charter National Bank v. Ross, 225 Conn. 903, 621 A.2d 286 (1993).