Clerk of Superior Court v. Freedom of Information Commission (concurring)
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The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** CLERK OF THE SUPERIOR COURT v. FREEDOM OF INFORMATION COMMISSION CONCURRENCE PALMER, J., concurring. I join the opinion of the majority. I write separately only to underscore the fact that the majority s conclusion that the documents sought by Russell Collins fall outside the definition of administrative functions of the judicial branch for purposes of the Freedom of Information Act (act), General Statutes § 1-200 (1),1 does not mean that Collins is not entitled to inspect and copy those documents. On the contrary, Collins has a presumptive right of access to those documents and to all other documents in the possession of the court that relate to its adjudicative function. I agree with the majority, however, that the legislature did not intend to place the judicial branch under the supervision of the defendant, the freedom of information commission (commission), for purposes of ensuring that the judiciary discharges it responsibility to make such documents available to the public. As this court recently has observed, the public has a real and legitimate interest in the workings of our courts, and vindication of that interest requires, as a general matter, that the courts business not be conducted covertly. Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 223, 884 A.2d 981 (2005). Consequently, the public has a presumptive right of access to court proceedings and documents. E.g., id., 216. This right of access, which pertains both to criminal proceedings; see, e.g., State v. Ross, 208 Conn. 156, 158 59, 543 A.2d 284 (1988); and to civil proceedings; see, e.g., Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 216 17; traces its roots to the first amendment; see, e.g., Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 93 (2d Cir. 2004); and to the common law. See, e.g., Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 98, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978). Indeed, the public s presumptive right of access to court proceedings and documents is embodied in our rules of practice. Practice Book § 1120A, which pertains to civil proceedings, and Practice Book § 42-49A, which pertains to criminal proceedings, provide, in general terms, that the . . . records of court proceedings may not be sealed, unless the court identifies, on the record and in open court, an interest which is determined to override the public s interest . . . in viewing such materials. Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 67 68, 818 A.2d 14 (2003). Because this public right of access to court documents pertains to all such documents,2 the right encompasses not only the category of materials that Collins seeks in the present case but also all other documents in the possession of the court that pertain to its adjudicative function. When the legislature passed the act in 1975 and included within its purview the administrative functions of the judicial branch; see Public Acts 1975, No. 75-342, § 1; the legislature was aware that placing the judicial branch within the scope of the act would give rise to extraordinarily sensitive issues surrounding the delicate balance among the coordinate branches of our state government. Rules Committee of the Superior Court v. Freedom of Information Commission, 192 Conn. 234, 240, 472 A.2d 9 (1984). In accordance with the delicate nature of its undertaking, the legislature sought to avoid any possibility of a conflict with the judicial branch by severely curtailing the scope of the act as applied to the judiciary. Thus, as this court explained in Rules Committee of the Superior Court, the limited applicability of the act to the judicial branch reflects the legislative concern for the independence of the judiciary and a legislative intent to avoid a collision with the prerogatives of the constitutional courts. Id.; see also Connecticut Bar Examining Committee v. Freedom of Information Commission, 209 Conn. 204, 210 11, 550 A.2d 633 (1988) ( [w]e have construed the limitation to administrative functions of the public disclosure provisions of the [act] as applied to the judicial [branch] to be designed to accommodate, rather than infringe upon, the independence of a constitutional court in performing its historic functions ). Consistent with that legislative concern, the term administrative functions is to be given a restrictive interpretation. See Rules Committee of the Superior Court v. Freedom of Information Commission, supra, 242. In 1975, the legislature undoubtedly also was aware of the fact that all documents relating to the adjudicatory function of the courts, in contrast to documents pertaining exclusively to the courts administrative functions, were presumptively available for inspection and copying by the public. See, e.g., Nixon v. Warner Communications, Inc., supra, 435 U.S. 597 ( [i]t is clear that the courts of this country recognize a general right to inspect and copy . . . judicial records and documents ). It therefore is reasonable to presume that the legislature, in limiting the applicability of the act to the administrative functions of the judicial branch, sought to ensure that the public also had access to those documents in the possession of the judicial branch that were not already subject to disclosure, namely, those documents that related exclusively to the courts administrative functions. In light of the extraordinarily sensitive issues that are implicated by extending the act to the judicial branch; Rules Committee of the Superior Court v. Freedom of Information Commission, supra, 192 Conn. 240; and because of our courts preexisting responsibility to provide the public with access to court documents that relate to the judiciary s adjudicative function, I do not believe that the legislature intended to make the judicial branch answerable to the commission concerning the manner in which compliance with requests for such documents is to be achieved. To conclude otherwise would be to minimize the legislature s acknowledged concern for the independence of the judiciary as a coordinate branch of government. Although there can be no doubt that Collins has a presumptive right to inspect and copy the documents he seeks, under the statutory scheme that the legislature has adopted, the judiciary, and not the commission, ultimately is responsible for determining consistent with the important public right of access to court documents how best to comply with Collins request. 1 General Statutes § 1-200 provides in relevant part: (1) Public agency or agency means: (A) Any executive, administrative or legislative office of the state or any political subdivision of the state . . . and also includes any judicial office, official, or body or committee thereof but only with respect to its or their administrative functions . . . . 2 As I noted previously in the text of this opinion, the public right of access to court documents is not absolute, and, therefore, upon appropriate findings, a court may order the sealing of a document or documents. See Practice Book §§ 11-20A and 42-49A. Of course, under any construction of § 1-200 (1), including the construction advanced by the dissent, documents sealed according to law would not be available for public inspection.
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