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GOULD v. FREEDOM OF INFORMATION COMMISSION—FIRST DISSENT

  McDONALD, J., with whom DiPENTIMA, J., joins in
part, dissenting. Today’s majority opinion substantially
frustrates the clear legislative policy requiring transpar-
ency in the operations of government that is contained
in the Freedom of Information Act (FOIA), General
Statutes (Supp. 2014) § 1-200 et seq. In doing so, the
majority has undermined the integrity of this court’s
previous construction of the FOIA and has thwarted
the goal of open government by looking to a purported
ambiguity in the Teacher Negotiation Act (TNA)1 to
conclude that a TNA arbitration panel is not a public
agency subject to the open meetings requirement of the
FOIA. While I agree with and join Justice Espinosa’s
comprehensive dissenting opinion concluding that the
arbitration panel is a public agency under General Stat-
utes (Supp. 2014) § 1-200 (1) (A),2 I write separately to
acknowledge the practical significance of the majority’s
misinterpretation of the meaning of ‘‘public agency’’
under the FOIA.
   As this court previously has explained: ‘‘[T]he ‘[FOIA]
expresses a strong legislative policy in favor of the
open conduct of government and free public access to
government records [and meetings].’ . . . At the time
of its unanimous passage by the General Assembly, the
act was noted for making ‘sweeping changes’ in the
existing ‘right to know’ law so as to ‘mark a new era
in Connecticut with respect to opening up the doors of
city and state government to the people of Connecticut.’
18 S. Proc., Pt. 5, 1975 Sess., p. 2323; 18 H.R. Proc., Pt.
8, 1975 Sess., p. 3907. The general rule under the act is
disclosure. . . . As Representative Martin B. Burke,
who sponsored the bill which was enacted, expressly
stated on the floor of the house, the intent of the [FOIA]
‘is to make every public record and every public meeting
open to the public at all times with certain specified
exclusions.’ 18 H.R. Proc., Pt. 8, 1975 Sess., p. 3907.’’
(Citations omitted.) Board of Trustees v. Freedom of
Information Commission, 181 Conn. 544, 550, 436 A.2d
266 (1980). ‘‘[T]his court consistently has interpreted
[the FOIA’s legislative policy] to require diligent protec-
tion of the public’s right of access to agency proceed-
ings. Our construction of the [FOIA] must be guided
by the policy favoring disclosure and exceptions to
disclosure must be narrowly construed.’’ (Internal quo-
tation marks omitted.) Stamford v. Freedom of Infor-
mation Commission, 241 Conn. 310, 314, 696 A.2d 321
(1997). Importantly, the ‘‘policy of liberal access to
[meetings of public agencies] would necessarily be
thwarted if [the statutory definition of] ‘public agencies’
were given a narrow construction . . . .’’ Board of
Trustees v. Freedom of Information Commission,
supra, 551.
  Rather than view the question before us through this
broad interpretive lens favoring transparency, the
majority myopically focuses on concerns that, under
the TNA, an arbitration panel is not wholly funded by
the government and is subject to minimal oversight by
the Department of Education (department) to conclude
that the panel cannot be a ‘‘subunit’’ of the department.3
Interestingly, although the majority concludes that the
statutory language in the TNA is ambiguous, it fails to
resolve this ambiguity in favor of the legislative purpose
of the FOIA. As a result, the majority places a veil
over evidentiary proceedings that concern undoubtedly
public issues—municipal budgets and teachers’
salaries.
   The significance of the majority’s conclusion is unde-
niable. As the most recent available data reflects, more
than $4.5 billion was spent by Connecticut school dis-
tricts on instructional staff and services in the 2009–
2010 school year. Connecticut Department of
Education, Connecticut Education Data and Research,
‘‘Finance—Total Annual Expenditures by Type,’’ avail-
able at http://sdeportal.ct.gov/Cedar/WEB/ct_report/
FinanceDTViewer.aspx (last visited December 5,
2014).4 This expenditure represented more than 37 per-
cent of the $12.1 billion spent by all municipalities for
all governmental functions for 2009–2010. See Office of
Policy and Management, ‘‘Municipal Fiscal Indicators,
Fiscal Years Ended 2008–2012,’’ (last modified March,
2014), p. A-8, available at http://www.ct.gov/opm/lib/
opm/FI_2008-2012_Asof3-6-14.pdf (last visited Decem-
ber 5, 2014). Thus, in concluding that the TNA arbitra-
tion panels are not public agencies, and therefore
ensuring that TNA evidentiary hearings remain closed
to the public, the majority allows municipalities and
the representatives of municipal employees to shield
from public view the adjudicative process by which a
significant portion of municipal resources are spent
each year. The FOIA does not allow such a result.
    The majority has concluded that members of the TNA
arbitration panels, who are appointed by the governor,
with the advice and consent of the General Assembly,
and who discharge specific governmental duties in
accordance with a comprehensive statutory scheme;
General Statutes § 10-153f; are not ‘‘officials’’ of a
‘‘ ‘[p]ublic agency’ ’’ of the state within the meaning of
§ 1-200 (1) (A). Such a conclusion ignores the essence
of the arbitration panel members’ statutory functions
and is belied by the definition of a ‘‘ ‘[p]ublic official’ ’’
in our state’s Code of Ethics, which encompasses ‘‘any
person appointed to any office of the . . . executive
branch of state government by the Governor or an
appointee of the Governor, with or without the advice
and consent of the General Assembly . . . .’’ General
Statutes (Supp. 2014) § 1-79 (11). I cannot abide such
an interpretation of our open government laws.
      Accordingly, I respectfully dissent.
  1
     General Statutes § 10-153f.
  2
     General Statutes (Supp. 2014) § 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 any state or town agency, any
department, institution, bureau, board, commission, authority or official of
the state or of any city, town, borough, municipal corporation, school district,
regional district or other district or other political subdivision of the state,
including any committee of, or created by, any such office, subdivision,
agency, department, institution, bureau, board, commission, authority or
official . . . .’’
   Although § 1-200 has been amended since the events underlying this
appeal; see, e.g., Public Acts 2011, No. 11-220, § 1; the amendments have
no bearing on the merits of this appeal. In the interest of simplicity, I refer
to the current revision of the statute codified in the 2014 supplement.
   Consistent with the majority opinion and this court’s decision in Elections
Review Committee of the Eighth Utilities District v. Freedom of Informa-
tion Commission, 219 Conn. 685, 687, 595 A.2d 313 (1991), I use the term
‘‘subunit’’ to refer to a committee of a public agency.
   3
     I particularly agree with Justice Espinosa’s criticism of the majority’s
failure to consider whether the arbitration panel could be deemed a public
agency in its own right under § 1-200, even if not a subunit of the department.
See footnote 3 of Justice Espinosa’s dissenting opinion. In DiFazio v. Execu-
tive Director, Judicial Review Council, Freedom of Information Commis-
sion, Docket No. FIC 89-115 (March 14, 1990), the Freedom of Information
Commission concluded that the Judicial Review Council was a public agency
under the FOIA because it is ‘‘an institution, bureau, board, commission,
or authority of the state.’’ Like the TNA arbitration panels, the Judicial
Review Council is made up of individuals appointed by the governor with
the approval of the General Assembly; General Statutes § 51-51k; its members
do not receive compensation for their services but instead are only reim-
bursed for expenses actually incurred in performance of their duties; General
Statutes § 51-51t; and the Judicial Review Council performs statutorily
defined public duties. See General Statutes §§ 51-51k through 51-51u.
   4
     We take judicial notice of statistics that are public record. See Luurtsema
v. Commissioner of Correction, 299 Conn. 740, 770 n.28, 12 A.3d 817 (2011)
(recognizing that courts may take judicial notice of public records); 29 Am.
Jur. 2d 134, Evidence § 109 (2008) (recognizing that state and federal records
and statistics are recognized as public records of which courts may take
judicial notice); see, e.g., Sheff v. O’Neill, 238 Conn. 1, 38 n.42, 678 A.2d
1267 (1996) (taking judicial notice of statistics compiled by Hartford Board
of Education).
