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ARTHUR J. ROCQUE, JR., COMMISSIONER OF ENVIRONMENTAL PROTECTION, ET AL. v. FREEDOM OF INFORMATION COMMISSION ET AL. (SC 16279) (SC 16280) Borden, Palmer, Sullivan, \tertefeuille and Rogers, Js.* Argued September 28, 2000—officially released April 10, 2001 Counsel Clifton A. Leonhardt, chief counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellant in Docket No. SC 16279 (named defendant).

Ralph G. Elliot, for the appellant in Docket No. SC 16280 (defendant The Hartford Courant Company).  

Robert B. Teitelman, assistant attorney general, withwhom, on the brief, was Richard Blumenthal, attorney general, for the appellees (plaintiffs).

Mark F. Kohler, assistant attorney general, Maureen M. Murphy and Ruth L. Pulda filed a brief for the Permanent Commission on the Status of Women et al. as amici curiae.

Opinlon

 

VERTEFEUILLE, J. The principal issue in these com­bined appeals is whether the identity of a sexual harass­ment complainant and certain other information relating to the investigation of a sexual harassment complaint are exempt from public disclosure as an inva­sion of personal privacy under General Statutes § 1‑210 (b) (2) of the Freedom of Information Act (act).1 The named defendant, the freedom of information commis­sion (commission), ordered the plaintiffs, Arthur J. Rocque, Jr., commissioner of environmental protection and the department of environmental protection,2 to provide the defendant The Hartford Courant Company (Courant) with copies of certain records it had sought, redacting only social security numbers and those por­tions of the documents that fell within the attorney-­client privilege. The department then appealed to the Superior Court, which reversed the decision of the com­mission and held that the disclosure of the information sought from the department's personnel files would constitute an invasion of personal privacy. The commis­sion and the Courant filed separate appeals from the judgment of the trial court to the Appellate Court, and we transferred the appeals to this court pursuant to Practice Book § 65‑1, and General Statutes § 51‑199 (c). We agree with the trial court's ruling that the identity of the complainant in the sexual harassment investiga­tion at issue here is exempt from disclosure under the act. We also agree with the trial court that certain other information concerning the investigation is exempt from disclosure, although we limit the exempt portions of the records to those comprising sexually descriptive information. We disagree, however, with the trial court's ruling that the identity of a complainant in a sexual harassment complaint and related information are always exempt from disclosure, irrespective of the particular facts of a case, and we therefore reverse the judgment in part.

 

The material facts in these combined appeals are undisputed. On May 27, 1998, the defendant Daniel Jones, a reporter for the Courant, submitted a written request under the act to the department,3 seeking access to and/or copies of personnel records pertaining to a sexual harassment investigation of a department man­ager.4 Pursuant to General Statutes §1‑214 (b),5 the department notified the employees involved, including the complainant and the department manager, of their right to object to the disclosure of the records. Each of the employees involved, including the complainant and the department manager, submitted a timely writ­ten objection to the disclosure of the personnel records,6 as permitted under §1‑214 (C).7 The depart­ment then informed the Courant that certain informa­tion was being withheld as exempt from disclosure pursuant to § 1‑210 (b) (2).8 The Courant thereafter filed a complaint against the department with the com­mission.

 

After an evidentiary hearing and an in camera inspec­tion of the documents in question, the commission ren­dered its final decision. The commission ordered the department to provide the Courant with copies of the interview notes and tape recordings of the interviews conducted by the department during the course of its investigation of the complainant's sexual harassment complaint,9 redacting only social security numbers and those portions of the documents that were protected by attorney‑client privilege.

 

The department then filed a timely appeal to the Superior Court, which sustained the appeal. The trial court found “that the information sought to be exempted from disclosure in this case is not of legiti­mate concern to the public and that the information is highly offensive to reasonable people. The identity of an alleged victim in a sexual harassment complaint, and other information related to the investigation, are exempt from disclosure under the Freedom of Informa­tion laws. The disclosure of such information would constitute an invasion of the personal privacy of the complainant.” The commission and the Courant then filed the appeals that are now before this court. They both argue that the trial court improperly concluded that the identity of the complainant and other informa­tion concerning the department's investigation of the sexual harassment complaint are exempt from disclo­sure under §1‑210(b)(2). In addition, the Courant10 argues that the trial court exceeded its proper scope of review under General Statutes § 4‑18311 by holding generally, without regard to the facts of this case, that the "identity of an alleged victim in a sexual harassment complaint, and other information related to the investi­gation, are exempt from disclosure under the Freedom of Information laws," and that "disclosure of such infor­mation would constitute an invasion of the personal privacy of the complainant."

 

I

 

The initial issue presented in these appeals is whether the trial court properly determined that disclosure of the identity of the complainant and certain other infor­mation related to the investigation of her complaint would constitute an invasion of privacy, and therefore, the information was exempt from disclosure under §1-­210(b)(2). Before addressing this issue, however, we briefly set forth the applicable standard of judicial review. "Our resolution of [these appeals] is guided by the limited scope of judicial review afforded by the Uniform Administrative Procedure Act; General Stat­utes § 4‑166 et seq.; to the determinations made by an administrative agency. [W]e must decide, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily or illegally, or abused

its discretion. Ottochian v. Freedom of Information Commission, 221 Conn. 393, 397, 604 A.2d 351 (1992). Even as to questions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion.... Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct appli­cation of the law to the facts found and could reasonably and logically follow from such facts.... New Haven v. Freedom of Information Commission, 205 Conn.767, 774,535 A.2d 1297 (1988). Although the interpretation of statutes is ultimately a question of law . . . it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement.... Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S.1023,107 S. Ct. 781, 93 L. Ed.2d 819 (1986); see also New Haven v. Freedom of Information Commission, supra, 773‑74; Wilson v. Freedom of Information Com­mission, 181 Conn. 324, 342‑43, 435 A.2d 353 (1980)." (Emphasis in original; internal quotation marks omit­ted.) Perkins v. Freedom of Information Commission, 228 Conn. 158, 164‑65, 635 A.2d 783 (1993).

 

"Our review of an agency's factual determination is constrained by . . . § 4‑183 (j), which mandates that a court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the per­son appealing have been prejudiced because the admin­istrative fmdings, inferences, conclusions, or decisions are . . . (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record .... This limited standard of review dictates that, [w]ith regard to questions of fact, it is neither the func­tion of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency.. . . Connecticut Light & Power Co. v. Dept. of Public UtilityControl, 219 Conn.51,57,591 A.2d 1231 (1991); see also DiBlasi v. Zoning Board of Appeals, 224 Conn. 823, 829‑30, 624 A.2d 372 (1993). An agency's factual determination must be sustained if it is reason­ably supported by substantial evidence in the record taken as a whole. Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 744, 626 A.2d 705 (1993); Connecticut Light & Power Co. v. Dept. of Public Utility Control, supra, 57." (Internal quotation marks omitted.) New England Cable Television Assn., Inc. v. Dept. of Public Utility Control, 247 Conn. 97, 117‑18, 717 A.2d 1276 (1998).

 

Both the commission and the Courant argue that the question in this case is not a pure question of law, but involves an application of the well settled meaning of § 1‑210(b)(2) to the facts of this particular case. The department contends, however, that the present case presents a pure question of law that has not been subject to prior judicial scrutiny and that, therefore, the appro­priate standard of review is de novo. We agree with the commission and the Courant that the present case involves applying the well settled meaning of § 1‑210(b)(2) to the facts of this particular case. The appropriate standard of judicial review, therefore, is whether the commission's factual determinations are reasonably supported by substantial evidence in the record taken as a whole.

 

With these legal principles in mind, we now turn to the initial issue presented in these appeals, namely, whether the trial court properly determined that disclo­sure of the identity of the complainant and certain other information would constitute an invasion of the com­plainant's privacy and, therefore, that the information was exempt from disclosure under § 1‑210(b)(2). The act provides that "[e]xcept as otherwise provided by any federal law or state statute [including the exceptions to the act], all records maintained or kept on file by any public agency . . . shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1‑212. . . “12 General Statutes §1-­210 (a). "[I]t must be noted initially that there is an overarching policy underlying the [act] . . . favoring the disclosure of public records." (Internal quotation marks omitted.) Superintendent of Police v. Freedom of Information Commission, 222 Conn. 621, 626, 609 A.2d 998 (1992). "[I]t is well established that the general rule under the [act] is disclosure, and any exception to that rule will be narrowly construed in light of the general policy of openness expressed in the . . . Iegis­lation [comprising the act]." (Internal quotation marks ornitted.) Ottochian v. Freedom of Information Com­mission, supra, 221 Conn. 398. "The burden of estab­lishing the applicability of an exemption clearly rests upon the party claiming the exemption." (Internal quo­tation marks omitted.) Perkins v. Freedom of Informa­tion Comission, supra, 228 Conn. 167. "This burden requires the claimant of the exemption to provide more than conclusory language, generalized allegations or mere arguments of counsel. Rather, a sufficiently detailed record must reflect the reasons why an exemp­tion applies to the materials requested." New Haven v. Freedom of Information Commission, supra, 205 Conn. 776.

 

Section 1‑210(b)(2) provides that "[n]othing in the Freedom of Information Act shall be construed to require disclosure of . . . [p]ersonnel or medical files and similar files the disclosure of which would consti­tute an invasion of personal privacy ...." When a claim for exemption is based upon § 1‑210(b) (2), the person claiming the exemption must meet a twofold burden of proof. First, the person claiming the exemp­tion must establish that the files are personnel, medical or similar files. In this case, there is no dispute that the Courant sought disclosure of personnel or similar files. See Connecticut Alcohol & Drug Abuse Commission v. Freedom of Information Commission, 233 Conn. 28, 30, 657 A.2d 630 (1995) (investigative file of sexual harassment complaint by one employee of state agency against coworker constituted personnel or similar file). Second, the person claiming the exemption under § 1-­210(b)(2) must also prove that disclosure of the fles would constitute an invasion of personal privacy. Per­kins v. Freedom of Information Commission, supra, 228 Conn. 169; Superintendent of Police v. Freedom of Information Commission, supra, 222 Conn. 626.

 

The test for determining whether a disclosure consti­tutes an invasion of personal privacy under § 1‑210 (b)(2) was enunciated in Perkins v. Freedom of Informa­tion Commission, supra, 228 Conn. 175. In Perkins, this court adopted as the appropriate test for invasion of personal privacy under § 1‑210 (b) (2) the definition of a tort action for the invasion of personal privacy, delineated in § 652D of the Restatement (Second) of Torts (1977). Perkins v. Freedom of Information Com­mission, supra, 172‑75. We held that "the invasion of personal privacy exception of [§ 1‑210 (b) (2)] precludes disclosure . . . only when the information sought by a request does not pertain to legitimate matters of public concern and is highly offensive to a reasonable person." Id., 175; see also Dept. of Public Safety v. Freedom of Information Commission, 242 Conn. 79, 84‑85, 698 A.2d 803 (1997). Perkins explicitly rejected a balancing test and ruled that the information sought must satisfy both parts of the test to be exempt from disclosure. Dept. of Public Safetyv. Freedom of Information Com­mission, supra, 85.

 

The records at issue in this case comprised a written complaint of sexual harassment made by an employee of the department against a department manager, the complainant's detailed statement to the investigating officer, and notes from interviews of many coworkers taken during the course of the department's investiga­tion of that complaint. The investigation resulted in a finding that no sexual harassment took place, but that the manager "exercised poor judgment ...." The department claimed that the entire complaint, the entire statement of the complainant and portions of the inter­view notes were exempt from disclosure. The depart­ment provided copies of the records under seal to both the commission and the trial court. In addition, the department filed an index to the sealed records, which specifed the exact portions of the interview notes that the department claimed were exempt.

 

After an in camera review of the documents submit­ted by the department, the trial court determined that these documents, which contain information about rela­tionships between different parties, allegations of sex­ual improprieties, and the observations of those investigating, were not of legitimate concern to the pub­lic. The trial court further found that the information, if disclosed, would be highly offensive to a reasonable person. In so doing, the trial court implicitly overruled the commission's factual fndings.13 In its final decision, the commission had found that "the notes from the interviews, which reflect the manner in which much of the investigation was conducted and the evidence on which the recommended action was based, pertain to legitimate matters of public concern." The commission further found that "the notes of the interviews do not contain information that could reasonably be consid­ered highly offensive to a reasonable person." The com­mission failed to support these conclusory factual findings, however, by reference to any supporting evidence.

 

Perkins requires that the person claiming the exemp­tion under §1‑210 (b) (2) first prove that the material that is claimed to be exempt from disclosure is not of legitimate public concern. Perkins v. Freedom of Information Commission, supra, 228 Conn. 175. The defendants argue that the identity of the complainant and other portions of the documents in question are of legitimate concern to the public because the public has a right to know how state agencies generally go about investigating allegations of sexual harassment within the workplace. They also contend that the identity of the complainant is a matter of legitimate public concern because disclosure of the complainant's identity may facilitate an evaluation of the department's investiga­tion into this particular sexual harassment complaint. The defendants' fmal claim is that the complainant's identity may be helpful if the complainant is willing to discuss the matter with those who want to evaluate the investigation. The department argues in response that the portions of the documents in question are not of legitimate concern to the public because they contain information about the personal and marital relation­ships of the complainant.

 

For purposes of analysis under the requirements of Perkins, we separate the information that the depart­ment claims is exempt into two categories. The first category consists of the complainant's identity and related personal information from which the complain­ant could be identified, for example, the complainant's home address. The second category comprises the bal­ance of the information claimed to be exempt, includ­ing: information such as the date when and location where the sexual harassment allegedly occurred; a let­ter to the complainant from the assistant commissioner who investigated the complaint, seeking the complain­ant's cooperation; certain questions posed to witnesses

as part of the department's investigation; and portions of certain answers to those questions. Some of the infor­mation in this second category is sexually explicit, for example, the allegations and descriptions of sexual con­tact and sexual improprieties, and details of intimate personal relationships.

 

We are not persuaded that the first category of infor­mation, principally the complainant's identity, is of legit­imate public concern. The name of the complainant is not necessary to the public's understanding or evalua­tion of the department's sexual harassment investiga­tion. The complainant's name would add nothing to an examination or evaluation of the department's investi­gative process, which is clearly revealed by these records without the disclosure of the complainant's identity. In addition, we find no merit to the defendants' claim that the disclosure of the identity is warranted because such disclosure would be helpful in determin­ing whether the complainant is willing to discuss the investigation with someone evaluating the process. The records at issue reveal that the complainant was fearful of retaliation, consistently requested that the matter be kept as confidential as possible, and objected to the disclosure of the records of the investigation. We think it unlikely, therefore, that the complainant would be willing to discuss the matter with those who might want to evaluate the investigation. We agree with the trial court that the complainant's identity and related identi­fying information are not legitimate matters of public concern.

 

We turn next to the second category of information that the department claims is exempt to determine whether any of this information is of legitimate public concern. We conclude that much of this information is of legitimate public concern in that it reveals, for example, the department's efforts to secure the com­plainant's cooperation, the department's procedure in questioning witnesses and the complainant's concern for job‑related consequences from the alleged sexual harassment. After reviewing all of the department's exemption claims, we conclude that the only portions of the records that are not a matter of legitimate public concern are those portions containing sexually explicit or descriptive information, such as allegations of sexual contact and sexual improprieties, and details of inti­mate personal relationships. In Dept. of Public Safety v. Freedom of Information Commission, supra, 242 Conn. 89‑90, we affirmed the trial court's finding that the public had no legitimate interest in disclosure of a report describing details of a state trooper's personal and marital relationships. The investigative report in that case resulted from a citizen's complaint that the trooper was involved in an inappropriate relationship with the complainant's wife. We conclude similarly here, that sexually explicit information contained in the records at issue pertaining to the complainant's intimate relationships is not a matter of legitimate public concern.14

 

In order to establish an exemption under § 1‑210 (b) (2),the party claiming the exemption must demonstrate also that the disclosure of the documents in question would be highly offensive to a reasonable person. Per­kins v. Freedom of Information Commission, supra, 228 Conn. 175. The defendants assert that on the facts of this case, the disclosure of the identity of the com­plainant and the other information claimed to be exempt would not be highly offensive to a reasonable person because they do not reveal facts about the com­plainant's private life, but involve incidents that demon­strate how a public employee acted during the hours of employment.15 The department contends, however, that disclosure of the specific information contained within these documents would be highly offensive to a reasonable person because it pertains to the private life of the sexual harassment complainant and docu­ments the complainant's private relationships. We agree with the department.

 

The subject matter of the records in question is a sexual harassment complaint by an employee against a supervisor. As this court indicated in Perkins, "[s]exual relations . . . are normally entirely private matters ...." Id., 173. The trial court found that disclosing the identity of the sexual harassment complainant would be highly offensive to a reasonable person because of the unique sensitivity of the issues involved and the reluc­tance of sexual harassment victims to come forward because of the fear that they will be disbelieved or exposed in some way. The trial court further found that disclosure of the details of the alleged sexual harass­ment would be highly offensive to a reasonable person. We agree with both findings, which are supported by substantial evidence and by our examination of the records at issue.

 

We conclude, therefore, that both parts of the twofold test established in Perkins are satisfied here in that the identity of the sexual harassment complainant in this case, including related identifying information, and sex­ually explicit portions of the investigation documents are not of legitimate public concern, and their disclo sure would be highly offensive to a reasonable person. Consequently, the identity of the complainant and the sexually explicit portions of the investigation documents are exempt from public disclosure under § 1‑210(b) (2).

 

We have undertaken a detailed review of the entire record before the trial court and, after doing so, con­clude that the commissionis factual findings were not reasonably supported by the substantial evidence in the record as a whole. New England Cable Television Assn., Inc. v. Dept. of Public Utility Control, supra, 247 Conn. 117‑18. The trial court, therefore, properly reversed the commission's findings.

 

Finally, although we agree with the trial court that the commission improperly ordered the department to disclose the entire file, we are not, however, in complete agreement with the trial court concerning exactly which portions of each document at issue are exempt from disclosure. The trial court agreed with all of the depart­ment's claims of exemption with respect to specific portions of the records. For example, the trial court agreed with the department that the entire sexual harassment complaint and all of the complainant's detailed statement were exempt from disclosure. We take a narrower view and conclude that the only por­tions of those two documents that are exempt are those portions identifying the complainant or containing sex­ually explicit information. We have reached the same conclusion with respect to the interview notes as well. For example, the trial court, agreeing with the depart­ment, found this question exempt from disclosure: "Was [the complainant] consuming alcohol?" We conclude that the question is not exempt from disclosure as an invasion of personal privacy and must be disclosed. To evidence our ruling with respect to each portion of the records claimed as exempt we are filing with the chief clerk of the appellate system a complete copy of the records at issue, redacting only those portions that we conclude are exempt from disclosure under the per­sonal privacy exemption.

 

II

 

The second issue presented in these appeals is whether the trial court exceeded its proper scope of review under § 4‑183. The trial court, in effect, found that the identity of an alleged victim in a sexual harass­ment complaint and other information related to the investigation are always exempt from disclosure under the act and that the disclosure of such information would always constitute an invasion of the personal privacy of the complainant.

 

The Courant contends that the court exceeded its proper scope of review when it found "that the identity of the complainant and related investigative material in a sexual harassment complaint, if disclosed to the public, constitute information which is highly offensive to a reasonable person," and that "[t]he identity of an alleged victim in a sexual harassment complaint, and other information related to the investigation, are exempt from disclosure under the Freedom of Informa­tion laws.... The disclosure of such information would constitute an invasion of the personal privacy of the complainant."16 The Courant argues that the trial court abandoned the appropriate, fact intensive, case­by‑case analysis required under Perkins and announced a rule of law to be applied in every case involving sexual harassment allegations. At oral argument, the department conceded that Perkins requires a fact inten­sive individual analysis of each case. The Courant and the department, therefore, both agree that, as construed in Perkins, §1‑210 (b) (2) requires a factual analysis on a case‑by‑case basis.

 

We agree that the trial court exceeded the proper scope of review by concluding that the identity of a sexual harassment complainant and other information in a sexual harassment investigation are always exempt under § 1‑210 (b) (2). As we have demonstrated in part I of this opinion, §1‑210 (b) (2) requires two factual findings. The party claiming the exemption under §1-­210 (b) (2) has the burden of proving both that the information in the record is not of legitimate public interest and that the disclosure of the information would be highly offensive to a reasonable person. These factual fndings necessarily require an analysis of the facts of each case in which the personal privacy exemp­tion is claimed. We, therefore, reverse the trial court's fmding that the identity of an alleged victim in a sexual harassment complaint and other information related to      the investigation are always exempt from disclosure under the act and that the disclosure of this information would always constitute an invasion of the personal privacy of the complainant. Accordingly, we aff~rm the judgment of the trial court

with respect to its finding that the identity of the sexual harassment complainant involved here and certain other information related to the investigation of her complaint are exempt from disclosure under §1‑210 (b) (2), except to the extent that we limit the exemptions as discussed in this opinion and indicated in the redacted records filed herewith. We reverse the judg­ment of the trial court with respect to the materials that we do not fmd to be exempt and direct that court to deny the plaintiffs' appeal as to those materials. We also reverse the trial court's judgment with respect to its finding that the identity of a sexual harassment com­plainant and other information related to the investigation are always exempt from disclosure under §1‑210 (b) (2), and we direct the trial court to vacate that part

of its judgment. The judgment is affirmed in part and reversed in part and, to the extent that the judgment is reversed, the case is remanded to the trial court with direction to render judgment consistent with the preceding paragraph.

 

In this opinion the other justices concurred.

* The listing of Justices reflects their seniority on this court as of the date

of argument.