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FREEDOM OF INFORMATION COMMISSION |
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In
the Matter of a Request |
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Advisory Opinion #10 |
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James W. Macauley, Assistant Town Attorney for the Town of
Greenwich |
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January, 21, 1976 |
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At its meeting of January 14, 1976, the Commission agreed to furnish an advisory ruling in response to the request of the above‑named applicant.
By its inquiry through its Town Attorney, the Town of Greenwich which furnished the following facts. It stated that on a fee basis it issues permits for the use of town recreational facilities consisting of tennis courts, a golf course, and a skating rink. From time to time individuals planning to use for commercial purposes the names of the persons holding such permits have requested copies of the Town's list of the names of recreational facility permittees. Acting on the view that this is "an unwarranted intrusion on the privacy of the" persons who have applied for such permits, the applicant has refused to supply lists for such commercial ventures. By its inquiry the applicant requests that the Commission advise whether or not it is required to supply such lists.
In the event that the applicant does, in fact, maintain a list of permit holders that list is part of its public records, as defined by §1(b) of P.A. 75‑342, since the list consists of recorded data relating to the conduct of the public's business that has been prepared or retained by the applicant as a public agency.
The exclusion relied upon by the applicant refers to §2(b)(1), which says that nothing in P.A. 75‑342 shall be construed to require public access to files, the disclosure of which would constitute an invasion of privacy.
This request for an advisory ruling requires the Freedom of Information Commission to determine whether or not an individual's right of privacy is invaded by disclosure that such person holds a permit or other grant of right to use the tennis courts, the golf course, or the skating rink of the Town of Greenwich.
By the act of applying for and receiving such a permit, an individual undertakes to enter into the business of this public agency. Permission to play a game of tennis on a privately owned and operated tennis court is commonly accepted to be a private transaction. Where comparable permission is sought and granted to use a public tennis court, it is part of the public's business because the recreational facility is created, owned, and controlled by a public agency. This implies the use of public funds and employees to construct and maintain the tennis court on publicly owned land, all for the purpose of the performance of a public duty for the public benefit (Hannon v. Waterbury, 106 Conn. 13, 16‑18, 1927). That is clearly the case under the facts submitted by the Town of Greenwich.
It is with this in mind that the Commission finds it must be guided by the following summary of the right of privacy on which the applicant relies:
"A judicially approved definition of the right of privacy is that it is the
right to be free from the
unwarranted appropriation or exploitation of one's personality, the publicizing
of one's private affairs with which the public has no legitimate concern, or
the wrongful intrusion into one's private activities in such manner as to
outrage or cause mental suffering, shame, or humiliation to a person of
ordinary sensibilities. The right of privacy has also been defined as the right
to be let alone, to be free from unwarranted publicity, and to live without unwarranted interference by the
public in matters with which the public is not necessarily concerned." (62 Am. Jr. 2nd §1, pp. 677‑678)
The Commission sympathizes with the emotional response of the permit holders to the possible commercial exploitation of their enjoyment of the right to use the recreational facilities concomitant with their residence in the town of Greenwich. This risk must be balanced against the public's right to know how this facet of the public's business is being conducted.
The Commission concludes that the protection given by P.A. 75‑342 to the right of privacy was intended to be reserved for a more serious concept of "one's private affairs," absent any likelihood of outrage, mental suffering, shame, or humiliation to the permit holders of record.
If such a list exists, it must be made available.
It is respectfully suggested that recipients of unwanted commercial solicitations have a remedy in that they may find it more effective simply to refuse their patronage to persons that they regard as having exploited commercially the access to such lists of permittees as is allowed by P.A. 75‑342.
By Order of the Freedom of
Information Commission
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Herbert Brucker, Chairman of
of the Freedom of Information
Commission
Date ___________________
Ordered_________________
Louis J. Tapogna, Clerk