author: KATZ, J.

text:
    FRANK WITT ET AL. v. ST. VINCENT’S MEDICAL CENTER ET AL.
    (SC 16115)
    Borden, Norcott, Katz, Sullivan and Vertefeuille, Js.
    Argued January 21
    officially released March 14, 2000

      Joel T. Faxon, with whom were Christopher D. Bernard and, on the brief, Joshua D. Koskoff for the appellants (plaintiffs).

      Gaileen F. Kaufman, with whom, on the brief, were Garie T. Mulcahey and R. J. Weber III, for the appellee (defendant David Lobdell).
   Opinion

KATZ, J.

In this certified appeal, the plaintiff claims that the trial court improperly concluded, in granting the motion for summary judgment filed by the defendant David Lobdell (defendant), that his action was barred by the three year statute of repose contained in General Statutes § 52-584. We conclude that there is a genuine issue of material fact as to whether the statute of repose contained in § 52-584 was tolled by the continuing course of conduct doctrine because of the defendant’s alleged ongoing failure to report to the plaintiff the totality of his diagnosis. Accordingly, we reverse the judgment of the Appellate Court affirming the trial court’s summary judgment rendered in favor of the defendant.

The opinion of the Appellate Court sets forth the following pertinent facts. “In September, 1983, [the plaintiff] was sent by his family physician to a surgeon, Vincent Donnelly, to perform a biopsy on an enlarged cervical lymph node. Donnelly excised the node on September 26, 1983, and sent the node to [the defendant], a pathologist. [The defendant] examined the tissue the following day and wrote a report in which he stated that his diagnosis was ‘atypical lymphoid hyper-plasia’ of the cervical lymph node. [The plaintiff] relied on this diagnosis and did not pursue any treatment for his persistent neck swelling.

“Eleven year’s later, in November, 1994, [the plaintiff] discovered that he was suffering from non-Hodgkin’s lymphoma. On October 19, 1994, [his] treating oncologist, Barry Meisenberg, requested from [the defendant] the original slides of the excised lymph node. [The defendant] complied and sent the slides as well as a copy of the medical report. At the bottom of the report, [the defendant] wrote a note to Meisenberg that stated: ‘I’d be interested in a follow up on this patient!! I think at the time we were concerned that [the plaintiff] might be evolving a small lymphocytic lymphoma/CCL.’

“Thereafter, the [plaintiff] filed this four count medical malpractice suit on March 27,1995, within two years of [his] learning that he had cancer and five months after learning of [the defendant’s] comment to Meisenberg on the medical report. Counts one and two of the complaint set foith claims on behalf of [the plaintiff] against St. Vincent’s Medical Center and [the defendant], respectively. Count three sets forth claims on behalf of [the plaintiffs wife and son], for loss of consortium and loss of parental consortium, against St. Vincent’s Medical Center. Count four sets forth these claims against [the defendant],

“On September 25, 1996, [the defendant] filed a motion for summary judgment on counts two and four of the complaint, alleging that those claims were barred by the applicable statute of limitations. The [plaintiff] filed a memorandum in opposition to the motion for summary judgment on May 2, 1997, arguing that the statute of limitations was tolled because of [the defendant’s] continuous duty to warn [the plaintiff] of his condition and because there was a genuine issue of material fact raised by [the defendant’s] admission by way of his sworn affidavit to the trial court. On September 29, 1997, the trial court, granted [the defendant’s] motion for summary judgment as to both counts.” Witt v. St. Vincent’s Medical Center, 52 Conn. App. 699, 701-702, 727 A.2d 802 (1999).

Following the decision by the Appellate Court, which affirmed the judgment of the trial court and concluded that there was no issue of material fact regarding the continuous course of conduct doctrine that could serve to toll the statute of limitations; id., 705; the plaintiff petitioned this court for certification. We granted the petition limited to the following issue. “Did the Appellate Court properly conclude that the defendant pathologist had no continuing duty to report his actual medical findings and diagnosis concerning the plaintiffs suspected medical conditions?” Witt v. St. Vincent’s Medical Center, 249 Conn. 910, 733 A.2d 228 (1999).

The plaintiff claims that in granting the defendant’s motion for summary judgment, the trial court improperly concluded that the three year statute of repose contained in § 52-584 barred his negligence claim. That statute provides in relevant part that “[n]o action . . . caused by negligence . . . or by malpractice of a physician . . . may be brought more than three years from the date of the act or omission complained, of . . . .” (Emphasis added.) See footnote 3 of this opinion. The plaintiff claims, however, that although the defendant was aware of the possibility of cancer, he failed to disclose that concern to the plaintiff. That failure was tantamount to a failure of his ongoing duty to wain, a duty that triggered the continuing course of conduct doctrine. Therefore, the plaintiff claims that the continuing course of conduct doctrine tolled the commencement of the running of the three year statute of repose contained in § 52-584 until October, 1994, when the defendant advised the plaintiff of his concern of cancer in a note to the plaintiffs then current physician. The plaintiff further claims that, because he brought this action against the defendant on March 27, 1995, it was timely commenced and the defendant’s motion for summary judgment should have been denied.

The defendant claims that the three year period of the statute of repose began to run on September 29, 1983, when he examined a specimen of the plaintiffs enlarged cervical lymph node that had been removed by Donnelly. Although the defendant recognizes that, under some circumstances, the continuing course of conduct doctrine serves to toll a statute of limitations, he denies the applicability of that doctrine in this case.

We conclude that, based upon the materials presented to the trial court, there is a sufficient question of fact regarding the applicability of the continuing course of conduct doctrine so as to preclude summary judgment for the defendant. Accordingly, we reverse the judgment.

I

We begin with the appropriate standard of review. “The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Id., 745. The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book § 381 [now § 17-46]. . . . Suarez v. Dick-mont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994).” (Internal quotation marks omitted.) Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 380-81, 713 A.2d 820 (1998). In the present case, an affidavit, attesting to the fact that the 1983 pathology report was the only medical service the defendant had ever provided to the plaintiff, was offered by the defendant in support of his motion. As an exhibit accompanying his objection to the defendant’s motion, the plaintiff submitted the note from the defendant, dated October, 1994, reflecting his concern in 1983 that the plaintiff might be developing lymphoma. In deciding whether the trial court properly concluded that § 52-584 bars this action, therefore, we are confined solely to the complaint, the defendant’s affidavit, his note to the plaintiffs treating physician and to the statute under consideration.

II

It is well established that “the relevant date of the act or omission complained of, as that phrase is used in § 52-584, is the date when the negligent conduct of the defendant occurs and . . . not the date when the plaintiff first sustains damage.” (Internal quotation marks omitted.) Blanchette v. Barrett, 229 Conn. 256, 265, 640 A.2d 74 (1994). Therefore, an action commenced more than three years from the date of the negligent act or omission complained of is barred by the statute of limitations contained in § 52-584, regardless of whether the plaintiff had not, or in the exercise of care, could not reasonably have discovered the nature of the injuries within that time period. Stein v. Katz, 213 Conn. 282, 285, 567 A.2d 1183 (1989).

As we recently reiterated in Sherwood v. Danbury Hospital, 252 Conn. 193, 202-203, 746 A.2d 730 (2000), a statute of limitations or repose “may be tolled under the . . . continuing course of conduct doctrine, thereby allowing a plaintiff to commence his or her lawsuit at a later date. ... [T]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong. . . . Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act.” (Citations omitted; internal quotation marks omitted.)

Ill

In deciding whether the trial court properly granted the defendant’s motion for summary judgment, we must determine if there is a genuine issue of material fact with respect to whether the defendant: (1) committed an initial wrong upon the plaintiff; (2) owed a continuing duty to the plaintiff that was related to the alleged original wrong; and (3) continually breached that duty.

We first consider whether there is a genuine issue of material fact with regard to whether the defendant committed an initial wrong upon the plaintiff. The plaintiff alleged in his complaint, inter alia, that the defendant had failed to: (1) properly diagnose, monitor and supervise the plaintiffs medical condition; (2) make an accurate and correct pathology diagnosis; (3) diagnose non-Hodgkin’s lymphoma; (4) consult with other pathologists regarding the diagnosis; and (5) discuss the diagnosis and pathology findings with the referring surgeon. The defendant answered the complaint, denying these allegations and offered no other evidence regarding the alleged initial malpractice in connection with his motion for summary judgment. Accordingly, in the absence of any evidentiary foundation to eliminate the existence of the alleged original malpractice, there was a genuine issue of material fact with regard to whether the defendant had committed an initial wrong upon the plaintiff.

We next consider whether there was a genuine issue of material fact with regard to whether the defendant owed the plaintiff “a duty that remained in existence after commission of the original wrong related thereto.” (Internal quotation marks omitted.) Blanchette v. Barrett, supra, 229 Conn. 275. The plaintiff acknowledges that, in the absence of a continuing special relationship, there must be a subsequent wrongful act that is related to the prior negligence. In determining whether the continuing course of conduct doctrine applies to toll the repose section of the statute of limitations contained in § 52-584, we have thrice held, in the medical treatment context, that continuing “wrongful conduct may include acts of omission as well as affirmative acts of misconduct . . . .” Id., 264; see Sherwood v. Danbury Hospital, supra, 252 Conn. 205, and the cases cited therein.

In this case, the plaintiff claims that the subsequent wrongful conduct is an omission — the defendant’s continuing failure to report to the plaintiff his actual findings and diagnosis. According to the plaintiff, the defendant’s note of October, 1994, reflecting a concern about evolving cancer, read together with the report from 1983, at best, renders it impossible to know what the defendant’s actual findings were, and at worst, demonstrates that tire initial report was dangerously incomplete. The plaintiff argues that, if the two are read together, a jury could find that, although the defendant had some concerns in September, 1983, they were not expressed in the report, and that, therefore, a complete diagnosis had not been conveyed to him or the referring surgeon. We read this record as one in which the plaintiff claims that the defendant’s malpractice consisted of both an improper diagnosis and an incomplete diagnosis in September, 1983.

The plaintiffs complaint alleges that, although the defendant was aware of the risk of cancer developing, he “failed to discuss the diagnosis and pathology findings with the referring surgeon . . . .” Assuming the truth of this allegation, which we do for purposes of a summary judgment motion, a jury could reasonably conclude that, had such a discussion taken place, the defendant would have related his concern about cancer. It is this concern of cancer that, if it existed at the time of his initial diagnosis, gave rise to the defendant’s continuing duty to warn, which in turn triggered the continuing course of conduct doctrine. We conclude that these allegations in the complaint, read together with the note from the defendant, were sufficient to raise a genuine issue of material fact as to whether the defendant had a continuing duty to report completely his findings from 1983 — a continuing duty related to the original wrong.

Finally, we consider whether there was a genuine issue of material fact with regard to whether there was a continuing breach of that duty, that is, whether there was subsequent wrongful conduct. Here that conduct was the defendant’s alleged continuing failure to indicate his concern for cancer throughout the period of time following the initial findings. A fact finder could find evidence that the defendant had a concern about cancer in 1983 from the note written by the defendant in 1994, which accompanied the medical slide he sent in response to a request from the plaintiffs then treating physician. The duty to make the report commenced when the information became available, which a jury could find was in 1983, and that the duty continued until disclosure resulting in a complete diagnosis was made, that is, until such time as the findings were reported in their entirety. In this case, the plaintiff alleged that the defendant failed to report his actual medical findings to him and that this concern of cancer was not expressed until October, 1994. This continuous failure to notify is similar to the continuous failure to warn that we found actionable in Sherwood v. Danbury Hospital, supra, 252 Conn. 209; to the continuous failure to monitor we found actionable in Blanchette v. Barrett, supra, 229 Conn. 280; and to the continuous failure to warn we found actionable in Cross v. Huttenlocher, supra, 185 Conn. 400-401. Therefore, we conclude that the allegations of the defendant’s continuous failure to report, combined with the note evidencing knowledge of the defendant’s concern for the possibility of cancer, were sufficient to create a genuine issue of material fact with regard to whether the defendant was in continual breach of his ongoing duty to the plaintiff.

The defendant has argued that this case falls within the determination in Blanchette that a physician who has made a misdiagnosis has no continuing duty to correct that diagnosis in the absence of proof that he subsequently learned that his diagnosis had been incorrect. Blanchette v. Barrett, supra, 229 Conn. 284. The defendant argues that, unlike in Blanchette, there was no reason to assume that he would discover any earlier mistake.

The plaintiff is not, however, simply asserting a misdiagnosis claim. The plaintiff argues that the 1994 notation does not show that he subsequently learned of his earlier misdiagnosis, but, rather, it shows that at the time of the diagnosis in 1983 the defendant had some level of knowledge that should have been disclosed to the forwarding physician. In other words, the plaintiffs argument is that the notation would permit a fact finder to find some degree of knowledge on the defendant’s part that there was more to be concerned about in 1983, and that, based on expert testimony that he will proffer at trial regarding the applicable standard of care, the defendant was required in 1983 to express his misgivings as part of his diagnosis. The defendant acknowledges that, had he stated in the 1994 note that he wanted to know what happened to the plaintiff because, despite what he had written in 1983, at the time of that examination, he believed that the plaintiff was developing cancer, there would have been enough evidence upon which a jury could conclude, both that he had been negligent for preparing an incomplete report in 1983, and that he had known more at the time of diagnosis than he actually had conveyed. The duty to correct a diagnosis that a physician subsequently learns was incorrect, as alleged in Blanchette, and the duty to correct a diagnosis that he had reason to question in the first instance, as alleged in this case, both implicate the continuing course of conduct doctrine. What level of certainty is required to trigger these duties is necessarily a matter of expert testimony, which the plaintiff will have the opportunity to present at trial. That is, whether the defendant actually knew or suspected something in 1983 that he had failed to report and that he was required by the standard of care to express that knowledge or suspicion are facts that the plaintiff will have to prove to the jury at trial to establish that the continuing course of conduct doctrine applies.

Therefore, we conclude that, because the plaintiff presented evidence, specifically the note from the defendant to the plaintiffs treating physician, from which a jury could infer that the defendant knew in 1983 that there was a concern about evolving cancer that he failed to relate, this case sufficiently resembles the case of a physician who, upon subsequently learning that his initial diagnosis was incorrect, has a continuing duty to disclose that has been triggered by the subsequent discovery. See id., 284. We conclude that there existed a genuine issue of material fact with respect to whether the repose section of the statute of limitations contained in § 52-584 was tolled by the defendant’s ongoing failure to warn the plaintiff of his concern of cancer, triggering the continuing course of conduct doctrine. Accordingly, we conclude that it was improper for the trial court to have concluded that, as a matter of law, there was no continuing course of conduct, and, therefore, it was improper for the trial court to have granted the defendant’s motion for summary judgment.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court for further proceedings according to law.

In this opinion the other justices concurred.

       The plaintiffs in this case are Frank Witt, his wife, Rebecca Witt, and their minor child, Frank Joseph Witt. In the interest of clarity, we refer to them singularly as the plaintiff.

       The named defendant in this case, St. Vincent’s Medical Center, is not involved in this appeal. References herein to the defendant are to Lobdell only.

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for ipjury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ... .” (Emphasis added.)

       The claim for loss of parental consortium on behalf of the plaintiffs son, on which summary judgment was rendered, was not raised as an issue in the appeal.

       “Although this court occasionally has referred to the statutory language in § 52-584 that ‘no such action may be brought more than three years from the date of the act or omission complained of as part of the ‘statute of limitations’ contained in § 52-584; see, e.g., Blanchette v. Barrett, supra, 229 Conn. 274; this restrictive language in § 52-584 has been referred to more precisely as the ‘repose section of tire statute of limitations.’ Id., 258; see also id., 258 n.1. Likewise in this case, the repose section of § 52-584 is at issue.” Sherwood v. Danbury Hospital, supra, 252 Conn. 202-203 n.9.

       See Sherwood v. Danbury Hospital, supra, 252 Conn. 208-209 (hospital’s failure to notify patient of untested nature of blood she had received during transfusion while at hospital was continuing course of conduct tolling statute of limitations); Blanchette v. Batrett, supra, 229 Conn. 264 (doctor’s failure to monitor patient subsequent to initial diagnosis was continuing course of conduct that tolled statute of limitations); Cross v. Huttenlocher, 185 Conn. 390, 400, 440 A.2d 952 (1981) C‘[b]ecause the negligent failure to warn is a continuing course of conduct, the statute of limitations does not begin to run until the course of conduct is completed”); cf. Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957) (failure of manufacturer to perform its continuing duty to warn of defective gun cartridge sold to public tolls statute of limitations).

       It is true that in all three of the cases in which this court has held that there was sufficient evidence for a jury to have concluded that a defendant health care provider had a duty to take some affirmative conduct subsequent to an initial medical procedure, the plaintiff presented expert testimony. See Sherwood v. Danbury Hospital, supra, 252 Conn. 207 (plaintiff presented expertwitness who stated that" ‘good medical practice’ ’’required defendant to have taken steps, in form of notifying plaintiff of untested nature of blood she had received, subsequent to transfusion); Blanchette v. Barrett, supra, 229 Conn. 279 (“[t]he testimony of the plaintiffs expert witness . . . which the jury might have found credible, was sufficient to find not only ... a continuing duty on the part of the defendant . . . but also continuing negligence on the part of the defendant based upon a breach of his professional duty of care to the plaintiff”); Cross v. Huttenlocher, 185 Conn. 390, 402, 440 A.2d 952 (1981) (plaintiff presented expert testimony that, “if credited by the jury, could have been sufficient to make out a case of negligent failure to warn”).
      In this case, the plaintiff did not offer an affidavit from an expert that the defendant, in order to meet the applicable standard of care, would have been required, as part of his 1983 diagnosis, to express the concern regarding cancer that he referred to in his 1994 statement. We do not, however, deem that failure to be fatal. Whether there was an initial wrong and whether there existed a duty that remained in existence after the commission of the original wrong related thereto were issues on which the defendant, as the summary judgment movant, bore the burden of proof. “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him 1 o a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent..... Because the supporting affidavits of the defendant. . . fail to show that there are no genuine issues of fact, the factual issues alleged and contested in the pleadings remain unresolved. The court, therefore, erred in granting summary judgment.” (Citations omitted; internal quotation marks omitted.) D.H.R Construction Co. v. Donnelly, supra, 180 Conn. 434. Similarly, in this case, the defendant’s affidavit does not defeat conclusively the plaintiffs claims that the defendant had an ongoing duty to convey his complete diagnosis. We assume that, at trial, the plaintiff will be able to establish that, in 1983, the defendant breached the applicable standard of care by not expressing then in his diagnosis the concerns that he later expressed in 1994.

       The defendant tries to distinguish Blanchette based upon the fact that the physician in that case was a treating physician, who, therefore, had many opportunities to make the subsequent discovery. That distinction is in no way dispositive. As we recently explained in Sherwood v. Danbury Hospital, supra, 252 Conn. 210, “we do not read Blanchette to require an ongoing physician-patient relationship in all instances in the medical context in which the continuing course of conduct doctrine may apply.” (Emphasis in original.) In this case, as in Sherwood, the defendant’s affirmative duty to notify the plaintiff was not conditioned upon the plaintiff maintaining an ongoing relationship with the defendant.

       The defendant also argues that both the pathology report and the note essentially speak to the same medical condition, and that, therefore, there is no medical basis upon which to conclude that he did not convey his actual diagnosis. As the defendant conceded in oral argument before this court, however, this is an argument that was not raised in the motion for summary judgment before the trial court, and did not serve as a basis for its opinion or indeed the opinion of the Appellate Court. The defendant, as the moving party, was required to assert and support this claim with adequate documentation at trial. In the absence of such evidence, this court is not able to assess that claim properly.
      Additionally, the defendant argues that, despite the plaintiffs assertions to the contrary, he did provide a complete diagnosis by identifying the tissue sample as being “atypical.” Whether that term is too vague to be meaningful, whether it is sufficient for a pathologist to provide only what he considers to be the most likely impression of a tissue sample, whether he need only relate actual findings of cancer as opposed to “concerns,” and whether the standard of care requires him to provide a list of possible interpretations when he is unable to arrive at a specific diagnosis, are all issues that are directed more accurately to the substantive allegations of negligence, and not to whether there was a continuing duty that tolls the statute of limitations.


source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    CHIEF OF POLICE, HARTFORD POLICE DEPARTMENT v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (SC 16092)
    Borden, Katz, Callahan, Vertefeuille and Flynn, Js.

      Argued December 1, 1999
    officially released March 14, 2000

      Ivan A. Ramos, assistant corporation counsel, with whom, on the brief, was Kevin G. Dubay, corporation counsel, for the appellant (plaintiff).

      Victor R. Perpetua, appellate attorney, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).

      Richard Blumenthal, attorney general, and Carolyn K. Querijero and Eliot D. Prescott, assistant attorneys general, filed a brief for the attorney general as ami-cus curiae.

      John M. Bailey, chief state’s attorney, and Timothy J. Sugrue, senior assistant state’s attorney, filed a brief for the division of criminal justice as amicus curiae.

      Mary-Michelle U. ITirschoff filed a brief for the Connecticut Conference of Municipalities as amicus curiae.
   Opinion

BORDEN, J.

The principal issue in this certified appeal involves the meaning and scope of General Statutes § 1-213 (b), which provides in pertinent part: “Nothing in the Freedom of Information Act shall be deemed in any manner to: (1) . . . limit the rights of litigants, including parties to administrative proceedings, under the laws of discoveiy of this state . . . -” Following our grant of certification, the plaintiff, the chief of police of the Hartford police department, appeals from the judgment of the Appellate Court affirming the judgment of the trial court. The trial court had dismissed the plaintiffs administrative appeal from an order of the named defendant, the freedom of information commission, requiring the disclosure of certain documents involving an internal affairs investigation of the Hartford police department, which had been the subject of discovery proceedings in the United States District Court for the District of Connecticut.

The plaintiff claims that the documents in question were exempt from disclosure under the Freedom of Information Act (act) because: (1) to require their disclosure would limit the rights of the plaintiff as a litigant under the laws of discovery in violation of § 1-213 (b) (1); and (2) the question of their disclosure was governed by the Federal Rules of Civil Procedure and, therefore, they were exempt from the provisions of the act pursuant to General Statutes § 1-210 (a), which makes the act inapplicable where “ ‘otherwise provided by any federal law . . . .’ ” We disagree with both claims and, accordingly, we affirm the judgment of the Appellate Court.

Terence P. Sexton made a request under the act for the plaintiff to provide him with copies of certain reports of the internal affairs division of the Hartford police department. Upon the plaintiffs refusal to provide the reports, Sexton filed this complaint with the defendant. The defendant ordered the plaintiff to provide Sexton with the reports, and further ordered that “[h]enceforth, the [plaintiff] shall strictly comply with the public records requirements set forth in [General Statutes §§ 1-212 and 1-210 (a)].” The plaintiff appealed from that order to the trial court, which dismissed the appeal. The plaintiff appealed from the trial court’s judgment to the Appellate Court, which affirmed the judgment. Chief of Police v. Freedom of Information Commission, 52 Conn. App. 12, 18, 724 A.2d 554 (1999). This certified appeal followed.

The facts and procedural history are undisputed. Sexton is an attorney who represented Carmen Delia Soto. In February, 1995, Sexton requested from the plaintiff copies of all “ ‘documents, reports and memoranda concerning any Internal Affairs or Patrol Operations Division investigations relating to Officer Raymondo Diaz’ . . . .” Shortly thereafter, Sexton filed a civil action, in the United States District Court for the District of Connecticut, on behalf of Soto against the city of Hartford and Diaz alleging violations of Soto’s civil rights.

In May, 1995, the plaintiff declined to comply with Sexton’s freedom of information request on the ground that the requested records were exempt from disclosure pursuant to § 1-213 (b) (l). In June, 1995, Sexton filed this complaint with the defendant.

In the then pending civil action in the federal court, Sexton filed a discovery request for production of documents relating to Diaz, including “ ‘Internal Affairs reports or investigations.’ ” The city objected to the discovery request, and no further action was taken with respect thereto.

In May, 1996, the defendant rejected the plaintiffs claim of exemption from the act, ordered the plaintiff to provide Sexton with the requested records, and further ordered that “[h]enceforth, the [plaintiff] shall strictly comply with the public records requirements set forth in [the act and § 1-210 (a)].” The plaintiff appealed from that order to the trial court.

Prior to the hearing in the trial court, the federal civil action was settled and withdrawn. Nonetheless, the trial court correctly determined that the case was not moot because of the order by the defendant that the plaintiff henceforth must comply with § 1-210 (a) regarding such records. See Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 240 Conn. 1, 8-9, 688 A.2d 314 (1997). The trial court rejected the plaintiffs claim that the records were exempt from disclosure pursuant to § 1-213 (b) (1), and dismissed the appeal.

The plaintiff appealed from that judgment to the Appellate Court, claiming that § 1-213 (b) (1) “provides an exemption from disclosure under the act if the same records have also been sought through the use of the discovery process in civil litigation.” Chief of Police v. Freedom of Information Commission, supra, 52 Conn. App. 15. The Appellate Court focused on the language of § 1-213 (b) (1), namely, that “[njothing in the Freedom of Information Act shall be deemed in any manner to . . . limit the rights of litigants . . . under the laws of discovery of this state . . . .” (Emphasis added.) Reasoning that the “right of a litigant to discovery is primarily the right to obtain information”; Chief of Police v. Freedom of Information Commission, supra, 16; and relying on the fact that in 1994, the legislature, in the wake of our decision in Gifford v. Freedom of Information Commission, 227 Conn. 641, 631 A.2d 252 (1993), had changed the word “affect” to “limit” in § 1-213 (b) (1); Chief of Police v. Freedom of Information Commission, supra, 17; the Appellate Court concluded that § 1-213 (b) (1) “should be interpreted as prohibiting the use of the act to restrict the rights of parties seeking information through discovery.” (Emphasis added.) Id., 17-18. Thus, in the Appellate Court’s view, § 1-213 (b) (1) operates as an exemption in only one direction: it cannot limit or restrict a litigant’s right to seek discovery of documents; but at the same time, it cannot be used as a source of exemption from the act by a litigant who seeks to resist discovery. Accordingly, the Appellate Court affirmed the judgment of the trial court. Id., 18.

In this court, the plaintiff claims that the Appellate Court’s judgment is flawed in two respects. First, the plaintiff claims that the Appellate Court’s interpretation of § 1-213 (b) (1) is improper because “requiring the disclosure of these documents would limit its right as a litigant under the laws of discovery, particularly since these documents were not discoverable in the Federal Court litigation.” Second, the plaintiff claims that the act is entirely inapplicable to the request filed by Sexton “because the legal matter in question was ‘otherwise provided by . . . federal law,’ ” namely, the Federal Rules of Civil Procedure, as provided by § 1-210 (a). See footnote 4 of this opinion.

We reject both claims. We conclude that the language of § 1-213 (b) (1) at issue in the present case means that requests for records under the act are to be determined by reference to the provisions of the act, irrespective of whether they are or otherwise would be disclosable under the rules of state discovery; see footnote 7 of this opinion; whether civil or criminal. We also conclude that questions of discovery under the Federal Rules of Civil Procedure are not what is meant by the phrase “otherwise provided by any federal law” as used in § 1-210 (a). We therefore affirm the judgment of the Appellate Court.

I

We first consider the claim of the plaintiff that the documents in question were exempt from disclosure under the act because, under § 1-213 (b) (1), to order their disclosure would “limit” the plaintiffs rights as a litigant “under the laws of discovery . . . .” We disagree.

This claim presents a question of statutory interpretation. “Statutory interpretation is a matter of law over which this court’s review is plenary. ... In construing statutes, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Doyle v. Metropolitan Property & Casualty Ins. Co., 252 Conn. 79, 84, 743 A.2d 156 (1999).

This question of statutory interpretation also must be resolved in light of certain general principles governing the act. First, we have often recognized “the longstanding legislative policy of the [act] favoring the open conduct of government and free public access to government records. . . . [Glastonbury Education Assn. v. Freedom of Information Commission, 234 Conn. 704, 712, 663 A.2d 349 (1995)]; see Perkins v. Freedom of Information Commission, 228 Conn. 158, 166, 635 A.2d 783 (1993); Board of Education v. Freedom of Information Commission, 208 Conn. 442, 450, 545 A.2d 1064 (1988); Wilson v. Freedom of Information Commission, 181 Conn. 324, 328, 435 A.2d 353 (1980). We consistently have held that this policy requires us to construe the provisions of the [act] to favor disclosure and to read narrowly that act’s exceptions to disclosure. See, e.g., Gifford v. Freedom of Information Commission, [supra, 227 Conn. 651]; Superintendent of Police v. Freedom of Information Commission, 222 Conn. 621, 626, 609 A.2d 998 (1992).” (Internal quotation marks omitted.) Waterbury Teachers Assn. v. Freedom of Information Commission, 240 Conn. 835, 840, 694 A.2d 1241 (1997). Second, whether records are disclosable under the act does not depend in any way on the status or motive of the applicant for disclosure, because the act vindicates the public’s right to know, rather than the rights of any individual. See Rose v. Freedom of Information Commission, 221 Conn. 217, 233, 602 A.2d 1019 (1992).

With these principles in mind, we begin with the language in question: “(b) Nothing in the Freedom of Information Act shall be deemed in any manner to: (1) . . . limit the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state . . . .” General Statutes § 1-213 (b) (1). The last three words — “of this state” — themselves render the particular discovery dispute involved in this case inapplicable to § 1-213 (b) (1). A discovery procedure in the federal court, under the Federal Rules of Civil Procedure, cannot be considered as coming within the language, “under the laws of discovery of this state . . . .” (Emphasis added.) General Statutes § 1-213 (b) (1). We do not rest our decision on that narrow ground, however, because § 1-213 (b) (1) is entirely neutral with reference to state discovery proceedings as well.

The language of § 1-213 (b) (1), read in its entirety, strongly suggests that it is intended to exempt entirely from the operation of the act questions of discovery that may arise in the course of litigation, whether in court or in administrative proceedings. In other words, the most plausible interpretation of the language of subsection (b) (1) is that questions of whether records are disclosable under the act are separate from questions of whether the same records are or would be discoverable in litigation. The language specifically provides that “[njothing in the [act] shall be deemed in any manner to: (1) Affect the status of judicial records as they existed prior to October 1, 1975, nor to limit the [state discovery] rights of litigants . . . .” General Statutes § 1-213 (b) (1).

The emphatic sense of “[n]othing” and “in any manner,” and the linkage between the judicial records prior to October 1, 1975, and the discovery rights of litigants — both being treated in the same subsection and in essentially the same manner — strongly indicate an intention to make the act simply inapplicable to such records and rights. The most plausible way to effect such an intention is to read the language as meaning that the two issues — disclosability under the act, and rights under discovery laws — are separate and independent of each other. Indeed, reading the statutory language as the plaintiff would have us do would mean that, although the statute explicitly provides that nothing in the act shall be deemed to limit the rights of litigants under the laws of discovery, nonetheless the rights of litigants under the laws of discovery implicitly limit the rights of the public under the act. We decline to infer from statutory language an implicit meaning that would undermine the statute’s explicitly barred meaning.

The legislative history of the language, scant as it is, is consistent with this interpretation. This provision was part of the original act, enacted in 1975, which provided that nothing in the act would “be deemed in any manner to affect the status of judicial records as they existed prior to October 1, 1975, nor to affect the rights of litigants, including the parties to administrative proceedings, under the laws of discovery of this state.” (Emphasis added.) General Statutes (Rev. to 1977) § 1-19b (3). Here, the linkage between the judicial records exemption and the rights of litigants under discovery laws was even more clear than it currently is, because both exemptions were introduced by the general term “affect,” and the clear import of the exemption from the act of judicial records prior to October 1,1975, was linguistically shared by the exemption of the “rights of litigants . . . under the laws of discovery of this state.” General Statutes (Rev. to 1977) § l-19b (3).

Furthermore, the only reference in the legislative debate to the provision in question was in a colloquy between Representatives Paul C. Manchester and Martin B. Burke, the sponsor of the legislation. Representative Manchester asked: “Is it the intention of this Bill to make available to the public, appraisals rendered in tax appeal cases?” Representative Burke responded: “I think that’s covered in the area of records pertaining to pending claims or litigation and further covered by the [laws of discovery] of production lawsuits.” (Emphasis added.) 18 H.R. Proc., Pt. 8, 1975 Sess., p. 3950. We do not read this brief exchange as inconsistent with our conclusion that § 1-213 (b) (1) renders the provisions of the act and questions of state discovery independent of each other. In accordance with Practice Book §• 13-4 (4), and its predecessors, and as a matter of long-standing practice, the reports of appraisers in tax appeals are routinely discoverable by each party. Thus, we read this colloquy as indicating no more than that the rules of discovery would govern any such document.

In 1993, this court considered, in Gifford v. Freedom of Information Commission, supra, 227 Conn. 642, “whether a municipal police department arrest report must be disclosed by the police department to the public, pursuant to the [act]; General Statutes [Rev. to 1993] §§ 1-7 through 1-2 lk; while the criminal prosecution that is related to the arrest report is pending.” We first assumed, without deciding, that such a report was “not a record of the [criminal justice] division pursuant to General Statutes [Rev. to 1993] §§ l-18a and 1-19.” Gifford v. Freedom of Information Commission, supra, 653 n.13. We concluded that, pursuant to the then current version of the act, such an arrest report was disclosable under the act, but only to the extent of the name and address of the person arrested, the date, time and place of the arrest, and the offense for which the person was arrested. Id., 654-62. In doing so, we specified that the issue specifically was governed by General Statutes (Rev. to 1993) § l-20b.

We then added, however, in dictum, which we now regard as ill-advised, that “our conclusion is supported by reference to [General Statutes (Rev. to 1993)] § l-19b (b)”; Gifford v. Freedom of Information Commission, supra, 227 Conn. 662; the provision specifically at issue in the present case. We stated: “Public access to arrest reports while the prosecution is pending would affect the rights of litigants under the laws of discovery” because the criminal defendant would have immediate access under the act to documents otherwise unavailable under our discovery rules, and the state’s attorney’s rights would be adversely affected by being required to disclose to the defendant documents upon which he might be relying to make strategic decisions. Id., 663-65. In light of those considerations, we declined to read General Statutes (Rev. to 1993) § l-20b more broadly than its terms plainly specified. Id., 665-66.

In 1994, the legislature, by virtue of Public Acts 1994, No. 94-246, § 15 (P.A. 94-246), amended the statute involved in the present case by substituting “limit” for “affect” in the clause dealing with discovery rights. Public Act 94-246 was a lengthy enactment entitled “An Act Concerning a DNA Data Bank, the Registration of Sexual Offenders and the Disclosure of Arrest Record Information.” As its title indicates, most of it concerned the creation of a deoxyribonucleic acid (DNA) data bank from blood samples of persons convicted of certain crimes; P.A. 94-246, §§ 1 through 7; a system of registration of the identities of persons convicted of certain sexual offenses; P.A. 94-246, §§ 8 through 12; an amendment of General Statutes (Rev. to 1993) § 1-20b regarding the scope of disclosure of arrest records; P.A. 94-246, § 13; and an amendment of General Statutes (Rev. to 1993) § 1-19 (b) (3) regarding the scope of disclosure of the identity and signed statements of witnesses. P.A. 94-246, § 14. Only § 15 of the P.A. 94-246 concerned the provision at issue in this case.

The legislative history for P.A. 94-246 is bereft of any discussion of § 15. There was no discussion of the dictum in Gifford regarding the scope of the discovery exemption, or of the effect of changing “affect” to “limit.” The only legislative discussion of our decision in Gifford focused on that part of its ruling defining the meaning of arrest records under then § l-20b. See, e.g., 37H.R. Proc., Pt. 20, 1994 Sess., p. 7388, remarks of Representative Dale W. Radcliffe; id., pp. 7391-92, remarks of Representative Radcliffe; 37 S. Proc., Pt. 6,1994 Sess., p. 1936, remarks of Senator George C. Jepsen; id., p. 1961, remarks of Senator William A. DiBella; id., p. 1966, remarks of Senator Jepsen; id., pp. 1968-69, remarks of Senator DiBella; id., p. 1969, remarks of Senator John A. Kissel. Thus, whatever the intent or meaning of the change from “affect” to “limit,” we can find nothing in either the language or legislative history of P.A. 94-246 to indicate that § 1-213 (b) (1) means anything different now from what it meant when it originally was enacted, namely, that the provisions of the act do not affect or limit discovery rights, and discovery rights do not affect or limit the provisions of the act. The two operate separately and independently.

Finally, the procedures in this case supply a scenario that suggests an additional reason that § 1-213 (b) (1) has the meaning that we have ascribed to it. In this case, the discovery dispute over the documents at issue was never resolved by the federal court. Therefore, despite the plaintiffs assertion that the documents in question were not discoverable in the federal action, we cannot know whether an order of disclosure under the act would have limited the right that the plaintiff asserted under the federal discovery rules to withhold the documents.

Therefore, in the absence of a definitive prior discovery ruling regarding documents involved in both a judicial discovery dispute and a request under the act, the defendant, or a court reviewing the defendant’s action, in attempting to apply the discovery exemption, would be required to determine whether the documents sought under the act would be subject to discovery under the applicable procedural court rules. Many discovery questions, however, are highly discretionary in nature. It would be very difficult, if not impossible, for the defen-danl or a court to determine accurately how that discretion would be exercised. It is unlikely that in enacting § 1-213 (b) (1), the legislature intended to place such a difficult and conjectural burden on the defendant or a court. The more plausible interpretation is that each determination — disclosure under the act, and disclosure under discovery rules — is made solely by the body charged with that responsibility: the defendant or the court applying the act; and the court applying its discovery rules.

The plaintiff argues that requiring disclosure of the documents in question “limits the rights of litigants because it forces public agencies to litigate in an [unlevel] playing field, particularly with respect to discovery matters. The decision appealed herein gives a private party litigating against a public agency the advantage of obtaining much more information in preparation for litigation than its opponents.” We do not deny that, except to the extent that other provisions of the act exempt documents from disclosure, the practical effect of our interpretation is that a member of the public might be able to secure under the act documents from an agency that he is suing or intends to sue that he might not be able to secure through discovery in the litigation. The reason for that, however, is rooted in the fundamental purposes of the act, which presumptively make public documents available to the public, and in the notion that the act and judicial discovery rules are designed with different aims and limitations in mind. Although in many cases the two routes for disclosure might overlap, in some cases they might ar rive at different destinations. The fact that a member of the public might also be an adversary of the agency, however, does not by itself strip him of his rights under the act. Moreover, there may also be instances in which a litigant would be able to secure documents through discovery that are exempt from disclosure under the act. The reason for that is, likewise, rooted in the fact that the act and discovery rules have different purposes and limits.

The plaintiff also relies on our statement in Gifford v. Freedom of Information Commission, supra, 227 Conn. 665-66, that the discovery exemption is intended to avoid transforming “the commission, an executive agency, into the overseer of . . . discovery rules.” As we previously have indicated, that statement, and the discussion of § 1-213 (b) (1) of which it was a part, were dictum. Our holding was that the specific statutory language of General Statutes (Rev. to 1993) § l-20b controlled the disposition of that case. Moreover, as we also previously have indicated, that dictum was ill-advised. Construing the language to mean that the two questions^ — disclosability under the act, and discovery under litigation rules — are independent of each other does not, as we suggested in Gifford, make the defendant an overseer of discovery rules. It simply divides into separate spheres those questions that most appropriately are decided in those spheres. Furthermore, our dictum ignored the most plausible interpretation of the language at issue in the present case, and it ignored the concomitant result that, by making disclosure under the act dependent on an actual or hypothetical discovery ruling, it transformed a court dealing with separate litigation into an overseer of the provisions of the act. We do not think that § 1-213 (b) (1) contemplates such a result.

II

The plaintiff also claims that the act is inapplicable to the documents at issue in this case because § 1-210 (a) makes public records available “[e]xcept as otherwise provided by any federal law . . . .” (Emphasis added.) See footnote 4 of this opinion for the text of § 1-210 (a). The plaintiff contends that the documents “in question in the present case [are] ‘otherwise provided by [any] federal law’ because the Federal Rules of Civil Procedure already provide a legal process for [their] disclosure . . . .” We disagree. We conclude that the language in question does not include questions of discovery under the Federal Rules of Civil Procedure.

First, the phrase at issue in § 1-210 (a) provides in relevant part: “Except as otherwise provided by any federal law or state statute . . . .” State discovery rules are governed generally by rules of the court, not by statutes. Thus, linking a total federal exemption from the disclosure provisions of the act with a parallel reference to state statutes strongly suggests that the reference to “federal law” was not intended to encompass federal litigation engendered issues of discovery. It suggests, instead, a reference to federal and state laws that, by their terms, provide for confidentiality of records or some other similar shield from public disclosure.

Indeed, the only references in the entire legislative history of the act to the language in question are consistent with the suggestion that it was intended to refer to other federal and state laws that by their terms shield specific information from disclosure. There is nothing therein, therefore, that suggests that the legislature intended this very general language to encompass the kinds of individualized and possibly hypothetical determinations under federal discovery rules that the plaintiffs argument would suggest. Indeed, there is no reference at all to federal discovery rules.

Third, we already have determined that § 1-213 (b) (1), which specifically refers to “the laws of discovery of this state,” does no more than make state discovery questions irrelevant to the question of disclosure under the act. It would be incongruous for a specific reference to state discovery rules to have that meaning, but a general reference to “any federal laws” to mean that the applicability of the act depends on questions of discovery under the Federal Rules of Civil Procedure.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 1-213 provides: “Agency administration. Disclosure of personnel, birth and tax records. Judicial records and proceedings, (a) The Freedom of Information Act shall be:
      “(1) Construed as requiring each public agency to open its records concerning the administration of such agency to public inspection; and
      “(2) Construed as requiring each public agency to disclose information in its personnel files, birth records or confidential tax records to the individual who is the subject of such information.
      “(b) Nothing in the Freedom of Information Act shall be deemed in any manner to:
      “(1) Affect the status of judicial records as they existed prior to October 1,1975, nor to limit the rights of litigants, including parties to administrative proceedings, under the laws of discoveiy of this state; or
      “(2) Require disclosure of any record of a personnel search committee which, because of name or other identifying information, would reveal the identity of an executive level employment candidate without the consent of such candidate.”

       We granted the plaintiffs petition for certification to appeal, limited to the following issues: “1. Whether the Appellate Court properly required the disclosure of documents pertaining to a matter in litigation before the federal court, despite General Statutes (Rev. to 1997) § l-19b (b) (1), which provides that, the disclosure requirements of the Freedom of Information Act shall not ‘limit the rights of litigants . . . under the laws of discovery?’
      “2. Whether the trial court was barred from applying the Freedom of Information Act to the present case because the legal matter in question was ‘otherwise provided by federal law?’ ” Chief of Police v. Freedom of Information Commission, 248 Conn. 914, 734 A.2d 564 (1999).

        General Statutes § l-19b (b) (1) has been transferred to § 1-213 (b) (1). Moreover, the specific statutory section quoted in the second certified question was, at the time, General Statutes (Rev. to 1997) § 1-19. That section has been transferred to General Statutes § 1-210 (a). We therefore refer throughout this opinion to §§ 1-213 (b) (1) and 1-210 (a) as the applicable statutes.

       Terence P. Sexton, an attorney who was the applicant before the freedom of information commission for disclosure of the documents in question, also was named as a defendant in the trial court. He has not participated in this appeal. We therefore refer herein to the commission as the defendant.

       General Statutes § 1-210 provides in relevant part: “Access to public records. Exempt records, (a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located or of the Secretary of the State, as the case may be. Any certified record hereunder attested as a true copy by the clerk, chief or deputy of such agency or by such other person designated or empowered by law to so act, shall be competent evidence in any court of this state of the facts contained therein. Each such agency shall make, keep and maintain a record of the proceedings of its meetings. . . .”

       General Statutes § 1-212 provides: “Copies of public records, fees, (a) Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. The fee for any copy provided in accordance with the Freedom of Information Act:
      “(1) By an executive, administrative or legislative office of the state, a state agency or a department, institution, bureau, board, commission, authority or official of the state, including a committee of, or created by, such an office, agency, department, institution, bureau, board, commission, authority or official, and also including any judicial office, official or body or committee thereof but only in respect to its or their administrative functions, shall not exceed twenty-five cents per page; and
      “(2) By all other public, agencies, as defined in section 1-200, shall not, exceed fifty cents per page. If any copy provided in accordance with said Freedom of Information Act requires a transcription, or if any person applies for a transcription of a public record, the fee for such transcription shall not exceed the cost thereof to the public agency.
      “(b) The fee for any copy provided in accordance with subsection (a) of section 1-211 shall not exceed the cost thereof to the public agency. In determining such costs for a copy, other than for a printout which exists at the time that the agency responds to the request for such copy, an agency may include only:
      “(1) An amount equal to the hourly salary attributed to all agency employees engaged in providing the requested computer-stored public record, including their time performing the formatting or programming functions necessary to provide the copy as requested, but not including search or retrieval costs except as provided in subdivision (4) of this subsection;
      “(2) An amount equal to the cost to the agency of engaging an outside professional electronic copying service to provide such copying services, if such service is necessary to provide the copying as requested;
      “(3) The actual cost of the storage devices or media provided to the person making the request in complying with such request; and
      “(4) The computer time charges incurred by the agency in providing the requested computer-stored public record where another agency or contractor provides the agency with computer storage and retrieval services. Notwithstanding any other provision of this section, the fee for any copy of the names of registered voters shall not exceed three cents per name delivered or the cost thereof to the public agency, as determined pursuant to this subsection, whichever is less. The Department of Information Technology shall monitor the calculation of the fees charged for copies of computer-stored public records to ensure that such fees are reasonable and consistent among agencies.
      “(c) A public agency may require the prepayment of any fee required or permitted under the Freedom of Information Act if such fee is estimated to be ten dollars or more. The sales tax provided in chapter 219 shall not be imposed upon any transaction for which a fee is required or permissible under this section or section 1-227.
      “(d) The public agency shall waive any fee provided for in this section when:
      “(1) The person requesting the records is an indigent individual;
      “(2) The records located are determined by the public agency to be exempt from disclosure under subsection (b) of section 1-19; or
      “(3) In its judgment, compliance with the applicant’s request benefits the general welfare.
      “(e) Except as otherwise provided by law, the fee for any person who has the custody of any public records or files for certifying any copy of such records or files, or certifying to any fact appearing therefrom, shall be for the first page of such certificate, or copy and certificate, one dollar; and for each additional page, fifty cents. For the purpose of computing such fee, such copy and certificate shall be deemed to be one continuous instrument.
      “(f) After consultation with the chairman of the Freedom of Information Commission, a representative of the Connecticut Conference of Municipalities and a representative of the Council of Small Towns, the Secretary of the State shall propose a fee structure for copies of public records provided in accordance with the sections set forth in subsection (a) of this section, and submit such proposal to the General Assembly not later than January 15, 1995.”
      See footnote 4 of this opinion for the text of § 1-210 (a).

       All references to Sexton throughout this opinion are to Sexton acting on behalf of Soto.

       The plaintiff also claimed that the records were exempt as “[pjersonnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy” under General Statutes (Rev. to 1995) § 1-19 (b) (2). That section has been transferred to § 1-210 (b) (2). The defendant ultimately rejected that claim, and it is not before us in this appeal.

       Curiously, neither the Appellate Court nor the parties has focused on the last three of the final eight words of § 1-213 (b) (1), namely, “under the laws of discovery of this state . . . .” (Emphasis added.) The only amicus curiae to focus on this language, namely, the Connecticut Conference of Municipalities, argues that “ ‘laws of discovery of this state’ ” includes federal law because of the supremacy clause of the United States constitution. This argument notwithstanding, it is difficult to see how discovery procedures in a federal action, which are governed by the Federal Rules of Civil Procedure, would come within that language. In view of our broader conclusion regarding the meaning of § 1-213 (b) (1); see part I of this opinion; however, we do not rest our decision on that ground.

       The amici curiae present some variations on the theme that the Appellate Court’s interpretation of § 1-213 (b) (1) is flawed. As we indicate in the text, of this opinion, however, our conclusion, although consistent with that of the Appellate Court, does not rest on its precise statutory analysis. Nonetheless, to the extent that the arguments of the amici involve the proper interpretation of the statute, we have taken them into account. One amicus, however, the division of criminal justice, also argues that, unless the act is interpreted 1o mean that questions of criminal discovery trump disclosure under the act, the act would violate the separation of powers doctrine as embodied in both the federal and state constitutions. We decline to consider this argument because: (1) ordinarily we do not, consider new questions raised only by an amicus curiae; see In re Bruce R., 234 Conn. 194, 215 n.16, 662 A.2d 107 (1995); and (2) it is not raised by the facts of the present case.

       In this connection, we do not endorse the reasoning of the Appellate Court that focused on the meaning of “limit” as opposed to “affect,” as we indicate in part I of this opinion.

       The printed record of this debate records these words as “loss of disclosure,” but we infer that this is a mistranscription from the taped record. See 18 H.R. Proc., Pt. 8, 1975 Sess., p. 3950.

       To the extent that Representative Burke’s response concerned § 1-210 (b) (4), which exempts from disclosure “[rjecords pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally abjudicated or otherwise settled,” it is not relevant to this case.

       Practice Book § 13-4 (4) provides: “In addition to and notwithstanding the provisions of subdivisions (1), (2) and (3) of this rule, any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testily, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. Each defendant shall disclose the names of his or her experts in like manner within a reasonable time from the date the plaintiff discloses experts, or, if the plaintiff fails to disclose experts, within a reasonable time prior to trial. If disclosure of the name of any expert expected to testily at trial is not made in accordance with this subsection, or if an expert witness who is expected to testify is retained or specially employed after a reasonable time prior to trial, such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly progress of trial in the case; or (C) involved bad faith delay of disclosure by the disclosing party. Once the substance of any opinion or opinions of an expert witness who is expected to testify at trial becomes available to the party expecting to call that expert witness, disclosure of expert witness information shall be made in a timely fashion in response to interrogatory requests pursuant to subdivision (1) (A) of this rule, and shall be supplemented as required pursuant to Section 13-15. Any expert witness disclosed pursuant to this rule within six months of the trial date shall be made available for the taking of that expert’s deposition within thirty days of the date of such disclosure. In response to any such expert disclosure, any other party may disclose the same categories of information with respect to expert witnesses previously disclosed or a new expert on the same categories of information who are expected to testify at trial on the subject for tliat party. Any such expert or experts shall similarly be made available for deposition within thirty days of their disclosure. Nothing contained in this rule shall preclude an agreement between the parties on disclosure dates which are part of a joint trial management order.”

       General Statutes (Rev. to 1993) § l-20b provided: “Notwithstanding any provision of the general statutes to the contrary, any record of the arrest of any person, other than a juvenile, except a record erased pursuant to chapter 961a, shall be a public record from the time of such arrest and shall be disclosed in accordance with the provisions of section 1-15 and subsection (a) of section 1-19. For purposes of this section, ‘record of arrest’ means the name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested.”
      Section l-20b was amended and has been transferred to General Statutes § 1-215, which provides: “Record of an arrest as public record. Exception, (a) Notwithstanding any provision of the general statutes to the contrary, and except as otherwise provided in this section, any record of the arrest of any person, other than a juvenile, except a record erased pursuant to chapter 961a, shall be a public record from the time of such arrest and shall be disclosed in accordance with the provisions of section 1-212 and subsection (a) of section 1-210, except that disclosure of data or information other than that set forth in subdivision (1) of subsection (b) of this section shall be subject to the provisions of subdivision (3) of subsection (b) of section 1-210. Any personal possessions or effects found on a person at the time of such person’s arrest shall not be disclosed unless such possessions or effects are relevant to the crime for which such person was arrested.
      “(b) For the purposes of this section, ‘record of the arrest’ means (1) the name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested, and (2) at least one of the following, designated by the law enforcement agency: The arrest report, incident report, news release or other similar report of the arrest of a person.”

       Public Act 94-246, § 15, provides: “Subsection (b) of section l-19b of the general statutes is repealed and the following is substituted in lieu thereof:
      “(b) Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be deemed in any manner to (1) affect the status of judicial records as they existed prior to October 1, 1975, nor to [affect] LIMIT the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state or (2) require disclosure of any record of a personnel search committee which, because of name or other identifying information, would reveal the identity of an executive level employment candidate without the consent of such candidate.”

       Public Act 94-24G, § 13, provides: “Section l-20b of the general statutes if repealed and the following is substituted in lieu thereof:

        “(a) Notwithstanding any provision of the general statutes to the contrary, any record of the arrest of any person, other than a juvenile, except a record erased pursuant to chapter 961a, shall be a public record from the (ime of such arrest and shall be disclosed in accordance with the provisions of section 1-15 and subsection (a) of section 1-19, EXCEPT THAT DISCLOSURE OF DATA OR INFORMATION OTHER THAN THAT SET FORTH IN SUBDIVISION (1) OF SUBSECTION (b) OF THIS SECTION SHALL BE SUBJECT TO THE PROVISIONS OF SUBDIVISION (3) OF SUBSECTION (b) OF SECTION 1-19, AS AMENDED BY SECTION 14 OF THIS ACT.

        “(b) For the purposes of this section, ‘record of the arrest’ means (1) the name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested, AND (2) AT LEAST ONE OF THE FOLLOWING, DESIGNATED BY THE LAW ENFORCEMENT AGENCY: THE ARREST REPORT, INCIDENT REPORT, NEWS RELEASE OR OTHER SIMILAR REPORT OF THE ARREST OF A PERSON.”

       See Conn. Joint Standing Committee Hearings, -Judiciary, Pt. 4, 1994 Sess.,pp. 1234-40,1261-62,1377,1379,1380,1382,1428; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 5, 1994 Sess., pp. 1573-76; 37 H.R. Proc., Pt. 7, 1994 Sess., p. 2263; 37 H.R. Proc., Pt. 9, 1994 Sess., pp. 3278-81; 37 H.R. Proc, Pt. 20, 1994 Sess, pp. 7371-7402; 37 H.R. Proc, Pt. 21, 1994 Sess, pp. 7544-48; 37 S. Proc, Pt. 6, 1994 Sess, pp. 1935-39, 1960-86; 37 S. Proc, Pt. 9, 1994 Sess, pp. 3026, 3067, 3069-70.

       Representative Radcliffe stated during the legislative debate in the House of Representatives: “Under current law, under existing law, under the Gifford case that we discussed the other day in some detail, the police are under an obligation to give certain information at the time of an arrest. They must give the name and the address of the person arrested, the date, time and place of the arrest and must state the offense with which the person is charged.
      “That information, which is required by the Freedom of Information Act is a floor. It is not a ceiling. If the Police Department chooses to give information over and above that information which they are required to give, which is fairly extensive, name, location of the incident, arrest, charge, time of the incident, if they wish to give additional information, they can. There is nothing prohibiting that. This is simply a floor. . . .” 37 H.R. Proc, supra, p. 7388.

       During the legislative debate in the House of Representatives, Representative Radcliffe stated: “The Gifford case strikes the appropriate balance. This amendment tips the scale too far in favor of disclosure of information that could affect, not in all cases it will, but could affect police investigations and compromise our local and state police departments. I therefore urge rejection. Thank you.” 37 H.R. Proc, supra, pp. 7391-92.

       Senator Jepsen stated during the legislative debate in the Senate: “This bill very simply restores — well, it overturns the so-called Gifford Case in which arrest records — the full content of the arrest records of any individual in any event is left to the discretion of the local police and makes arrest records subject to [Freedom of Information] as existed prior to the Gifford Case. If inadequate steps have been taken to meet the objection that witnesses — the identi[t]y of witnesses who would be endangered by this process would be — that their identity would be divulged by allowing tire limitation by police to limit disclosure of relevant witnesses.” 37 S. Proc, supra, p. 1936.

       Senator DiBella stated during the legislative debate in tire Senate: “What this amendment does is allows for the — it allows that under the Freedom of Information laws, to allow police reports to be disseminated freely to 1he press. I am not opposed to the issue [of] dissemination of these— information to the press, but under the circumstances that prevail or the prevailing circumstances of an arrest, under existing law, under the state Supreme Court ruling in I believe it was Gifford versus — Gifford versus [Freedom of Information], the Supreme Court ruled that the police department could make a decision as to release of information and the information would be restricted to name, date, time, and address and nature of the crime or the crime that was committed.” 37 S. Proc., supra, p. 1961.

       During the legislative debate in the Senate, Senator Jepsen stated: “I think it is important to note that the Supreme Court didn’t say, offered no opinion about restricting information. They merely said under current law it is not required that it be disclosed.
      “We did just fine for years up until the Gifford Case with the free disclosure of such information. The [Freedom of Information] laws didn’t just happen. They happened because of the perceived need to open up information . . . .” 37 S. Proc., supra, p. 1966.

       Senator DiBella stated during the legislative debate in the Senate: “I have listened to many debates in this room. I find it hard to tie the issue of discrimination and the question that’s before us today. Point, it is assumed that the law prior was that these records had to be released. Fact, it has been the fact that the present law has been the law for many years. If you read the Gifford versus the Freedom of Information, it’s a clarification that says that the police departments are allowed to continue to proceed as most of them had in the past and that was restricting this kind of information.
      “So when you read Gifford, it wasn’t a question that Gifford restricted the [Freedom of Information]. The question was challenged and they sustained the present and existing operation in Gifford. The question is a very critical issue as to the question of being able to protect the rights of people in an investigation and the issue that the amendment within the bill allows that, it would allow an immediate decision when this — when the report, was being drawn up, not giving the police department the ability to evaluate extensively the effects and ramifications of releasing' such information in the course of that case.
      “So the information, the critical issue here is the Supreme Court decision sustained the existing practice. It passed the test in the Supreme Court. The Supreme Court looked at the issue of the rights of the individuals and balanced that against the rights of those people that would be protected in the course of an investigation or in the course of protecting that, information from public dissemination.” 37 S. Proc., supra, pp. 1968-69.

       Senator Kissel stated during the legislative debate in the Senate: “Yes, I rise in support of the amendment. With all due respect to Senator DiBella, I believe that the statements made by Senator Jepsen are true. I will grant you that perhaps in the Gifford Case, the state Supreme Court clarified the underlying issue and that perhaps what had been taken for a right was not such and that it was taken for granted, but even if that’s the case, our issue before us is do we let the sun shine in or don’t we. . . .” 37 S. Proc., supra, p. 1969.

       This does not mean, however, that other specific exemptions from the act might not operate to shield certain documents from disclosure that also are or might be involved in discovery disputes. See, e.g., General Statutes § 1-210 (b) (3) (records of law enforcement agencies) and (4) (pending claims or pending litigation).

         On the floor of the House of Representatives, Representative Burke stated: “In line 164, there is the word ‘TAX RETURNS’ inserted in one of the exemptions for public records and it would read ‘records, tax returns, reports and statements exempted by federal law or state statute.’ Now the reason for this, the Tax Department called it to the Committee’s attention . . . that under federal law, tax returns are to be confidential and did we not specifically exempt tax returns, we would probably have some problems so we did so, although, in my own personal opinion, that was the intention of the Committee all along when we said records, reports and statements exempted by federal law. . . (Emphasis added.) 18 H.R. Proc., supra, p. 3897.
      Thereafter, the following exchange occurred between Representatives Burke and Albert R. Webber:
      “[Representative Webber]: Through you Mr. Speaker, a question to the gentleman from the 56th. In line with the questioning developed by [Representative Gerald F.] Stevens, could one get information from aparóle board? I speak particularly of the applicant for parole. Gould he receive, under the terms of this Amendment, or the Bill, the detailed information as to his status and why from a board of pardons or parole board?

        “[Representative Burke]: Through you Mr. Speaker, there is a general exclusion in the Bill itself concerning records, reports and statements exempted by state statutes. There is a further exclusion concerning records of law enforcement agencies. It would be possibly, I guess on my part, but I would say that, because I don’t know what the parole statutes say, we certainly didn’t peruse every section of the General Statutes in dealing with this Bill. But if they are privileged and exempt from inspection, as they now exist, then they would continue to be so under the blanket exclusion, if you will, on lines 164 and 165 of the file copy.” 18 H.R. Proc., supra, pp. 3904-3905.


author: PER CURIAM.

text:
    BILLER ASSOCIATES v. ROUTE 156 REALTY COMPANY
    (SC 16098)
    Norcott, Katz, Vertefeuille, Callahan and West, Js.
    Argued January 21
    officially released March 21, 2000

      Kenneth J. Bartschi, with whom were Wesley W. Horton and, on the brief, Jon D. Biller, for the appellant (plaintiff).

      Victor J. Dowling, with whom were Paige J. Everin and Victor J. Dowling, Jr., for the appellee (defendant).
   Opinion

PER CURIAM.

This is a certified appeal from the judgment of the Appellate Court reversing the judgment of the trial court in favor of the plaintiff and remanding the case with direction to render judgment for the defendant. We granted certification, limited to the following questions: (1) “Do General Statutes (Rev. to 1987) § 38-69, now § 38a-723, and § 38-72 (h)-6, now § 38a-788-6, of the Regulations of Connecticut State Agencies, under the circumstances of this case render invalid an employment contract between a licensed public adjuster and a property owner when the property owner was not named on the insurance policy?” and (2) “Did the Appellate Court improperly reverse the trial court’s judgment that under the facts of this case the plaintiff should recover in quantum meruit?” Biller Associates v. Route 156 Realty Co., 248 Conn. 916, 916-17, 734 A.2d 569 (1999).

The facts may be summarized as follows. The plaintiff, Biller Associates, is a licensed public adjusting firm. The defendant, Route 156 Realty Company, was the owner of a building located at 435 Shore Road in Old Lyme. On December 30, 1987, the defendant leased its building to Robert Gaines, who operated a restaurant on the premises. Paragraph five of the lease agreement required Gaines to obtain replacement fire and extended insurance coverage on the building at 435 Shore Road in an amount not less than $250,000. Using an independent insurance broker, Pequot Insurance Agency (Pequot), Gaines obtained insurance coverage for the premises in the amount of $425,000 from the Hermitage Insurance Company (Hermitage). Contrary to the terms of the lease agreement, however, the Hermitage insurance policy erroneously listed Gaines as the insured and the owner of the property. Before the policy could be reformed to reflect that the defendant was the insured and owner, the premises were destroyed by fire on July 1, 1988. Biller Associates v. Route 156 Realty Co., 52 Conn. App. 18, 20, 725 A.2d 398 (1999).

On August 22, 1988, the plaintiff and the defendant signed a contract authorizing the plaintiff to adjust, on the defendant’s behalf, the loss resulting from the July 1, 1988 fire at 435 Shore Road. Id., 20. The plaintiff admitted that when the parties entered into the contract, it was fully aware that the defendant was not a named insured under the Hermitage insurance policy. Id. The defendant claims that it signed the contract with the plaintiff with the expectation that the plaintiff would be able to reform the Hermitage insurance policy to have the defendant designated as the owner of the destroyed property and the named insured under the policy. Id. Any effort by the plaintiff in that regard proved unsuccessful.

Thereafter, the defendant initiated its own action against Pequot, Hermitage and Continental Insurance Agency (Continental), the Connecticut agent for Hermitage. The defendant sought, inter alia, to reform the Hermitage policy, claiming that the defendant was not named as an insured party under that policy owing to Pequot’s negligence. Id., 20-21. The policy was not reformed, but the defendant eventually settled its action with Pequot, Hermitage and Continental. Id., 21.

After it settled the action, the defendant refused to pay the plaintiff a percentage of the settlement. Consequently, the plaintiff initiated the present action, claiming that, pursuant to the terms of its August 22, 1988 contract with the defendant, it was entitled to 10 percent of the defendant’s recovery, however that recoveiy had been effected. In the alternative, the plaintiff claimed that it was entitled to recover under the doctrine of unjust enrichment. Id.

The trial court awarded the plaintiff $17,500, 10 percent of the net figure recovered by the defendant, after the court deducted certain expenses incurred in obtaining the settlement. The court stated that this amount represented the plaintiffs entitlement to 10 percent of “ ‘the amount of the loss when adjusted with the Insurance Companies or otherwise recovered’ ” as called for by the contract. Id., 21. The court determined that “otherwise recovered” in the contract included any amount received from an insurance company that was related to the fire loss, however recovered. Alternatively, the trial court concluded that the plaintiff would be entitled to recovery in quantum meruit even if it could not recover under the contract. Id., 21-22.

The Appellate Court reversed the judgment of the trial court. The Appellate Court concluded that the employment contract was unenforceable because General Statutes (Rev. to 1987) § 38-69 and the regulations governing public adjusters limit a licensed public adjuster’s employment to adjusting losses and damages arising under a fire insurance policy on behalf of an insured under the policy. Id., 22. Moreover, the court determined that it was a condition precedent to the enforceability of a licensed public adjuster’s employment contract that the adjuster represent an insured party. Id., 28-29. The Appellate Court also concluded that to allow recovery in quantum meruit would undermine the purposes of the statute and regulations governing public adjusters; id., 31; and, under the circumstances, would violate the prohibition against the unauthorized practice of law. Id., 33.

Having examined the record on appeal, studied the briefs and heard the arguments of the parties, we conclude that the judgment of the Appellate Court should be affirmed. The thoughtful and comprehensive opinion of the Appellate Court properly resolved the issues in this certified appeal. A further discussion by this court would serve no useful purpose. See, e.g., Brennan v. Burger King Corp., 244 Conn. 204, 206, 707 A.2d 30 (1998); Murphy v. Buonato, 241 Conn. 319, 321-22, 696 A.2d 320 (1997).

The judgment of the Appellate Court is affirmed.


text:
    FRANK RICIGLIANO v. J. J. RYAN CORPORATION ET AL.
    (SC 16129)
    McDonald, C. J., and Katz, Palmer, Vertefeuille and Callahan, Js.
    Argued February 15
    officially released March 21, 2000

      Robert B. Cohen, with whom was Louis Wang, for the appellant (plaintiff).

      Dominick C. Statile, with whom was David School-craft, for the appellees (defendants).
   Opinion

PER CURIAM.

After examining the record on appeal, particularly the evidentiary record, and considering the briefs and oral arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was granted improvidently.

The appeal is dismissed.

       We granted the plaintiffs petition for certification to appeal from the judgment of the Appellate Court; Ricigliano v. J. J. Ryan Corp., 53 Conn. App. 158, 728 A.2d 1161 (1999); limited to the following issue: “Did the Appellate Court properly affirm the compensation review board’s decision upholding the trial commissioner’s finding of a 0.62 percent loss of hearing disability for the plaintiff?” Ricigliano v. J. J. Ryan Corp., 249 Conn. 923, 733 A.2d 234 (1999).