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Director, Retirement & Benefits Services Division v. Freedom of Information Commission

____________________________________________________________________________

 

 

DIRECTOR, RETIREMENT AND BENEFITS

SERVICES DIVISION, OFFICE OF THE

COMPTROLLER v. FREEDOM OF

INFORMATION COMMISSION ET AL.

(SC 16462)

 

                        Borden, Norcott Palmer, Vertefeuille and Zarella, Js.

 

 

Syllabus

 

The plaintfff state official appealed from the trial court's dismissal of his appeal from a decision by the named defendant freedom of information commission ordering the disclosure of the home addresses of five state employees who had taken significant steps to keep their addresses private. Contrary to the plaintffs claim, the commission determined that the information sought here was not exempt from disclosure under the provision of the Freedom of Information Act (§ 1-210 [b] [2]) per­taining to personnel files the disclosure of which would constitute an invasion of personal privacy. Held that the plaintiff satisfied his burden of proving under §1-210 (b) (2) and the twofold test adopted by this court in Perkins v. Freedom of Information Commission (228 Conn.173) that there was no legitimate public interest in the requested informa­tion because it did not concern or implicate the jobs of the employees as public officials and that its disclosure, in light of the significant steps taken by those employees to maintain their privacy, would be highly offensive to a reasonable person; accordingly, contrary to the determina­tion of the trial court, that information was exempt from disclosure under

the statutory exception pertaining to the invasion of personal privacy.

(One justice concurring separately)

 

Argued March l--officially released July 17, 2001

 

Procedural History

 

Appeal from the decision by the named defendant ordering the plaintiff to disclose to a third party certain information concerning employees of the state depart­ment of banking, brought to the Superior Court in the judicial district of Hartford-New Britain at Hartford, and tried to the court, Hartmere, J.; judgment dismissing the appeal, from which the plaintiff appealed. Reversed; judgment directed.

 

 

 

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Director, Retirement & Benefits Services Division v. Freedom of Information Commission

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Laurie Adler, assistant attorney general, with whom, on the brief, were Richard B1umenthal, attorney general, and Charles A. Overend, assistant attorney general, 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).

 

Opinion.

 

NORCOTT, J. The issue before this court is whether the trial court properly determined that the disclosure of the home addresses of five state employees would not constitute an invasion of privacy and, therefore, that the information was not exempt from disclosure under General Statutes § 1-210 (b) (2) [1] of the Freedom of Information Act (act). This appeal arose from a decision of the named defendant, the freedom of informa­tion commission (commission), ordering the plaintiff, the director of retirement and benefit sernices division, office of the comptroller, to disclose the home addresses of certain employees of the state department of banking (department), to the defendant, Eric Youngquist. The plaintiff appealed to the trial court pursuant to the Uniform Administrative Procedure Act, General Statutes § 4-183 (a) [2] and the act, General Statutes § 1-206 (d), [3] formerly §1-21i (d). The trial court affirmed

 

 

 

 

 

 

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Director, Retirement & Benefits Services Division v. Freedom of Information Commission

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the commission's decision ordering the disclosure of the addresses. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we trans-ferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). We reverse the judgment of the trial court.  The following facts are relevant to our disposition of this appeal. Youngquist had been the subject of an investigation conducted by the department that resulted in the revocation of his registration as an agent engaged in the sale of securities. [4]   In March, 1996, Youngquist submitted a request under the act that the plaintiff dis-close the home addresses of thirty-eight employees of the department. Prior to this request, Youngquist had requested the disclosure of the home addresses of sev-enty-three employees of the department, including eigh-

                       

 

                       

 

 

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Director, Retirement & Benefits Services Division v. Freedom of Information Commission1

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teen of the thirty-eight addresses regarding which Youngquist presently was seeking disclosure. The plain­tiff denied Youngquist's request, informing him that the home addresses he requested were identical to those previously requested by him in a pending Superior Court case; Youngquist v. Freedom of Information Commis­sion, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 950554601 (October 29, 1996) (18 Conn. L. Rptr. 2); and that a stay of the commission's decision ordering disclosure had been granted pending Youngquist's appeal in that case. [5] The letter further stated that the request was denied on this ground. Youngquist appealed from the plaintiff's denial of his request to the commission.

 

Pursuant to General Statutes § 1‑214 (b) and (C), [6] the department distributed notices to the thirty‑eight employees subject to Youngquist's disclosure request, advising them that their home addresses had been requested and that they could file written objections to

 

 

 

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their disclosure. The notice informed the employees that in order to claim exemption of their addresses, they would have to demonstrate that they had taken significant efforts to keep their addresses private. Sub­sequently, the department received eleven objections to the disclosure of employees' addresses. The Adminis­trative and Residual Employees Union, which repre­sented all thirty-eight employees, also objected. Three

employees did not object to disclosure of their addresses and those addresses were provided to Young­quist by the plaintiff.

 

Because certain employees were contesting the dis­closure request, hearings were conducted before a com­mission hearing officer. The plaintiff argued that the addresses of these employees were exempt from disclo­sure pursuant to § 1-210 (b) (2). Specifically, the plain­    tiff relied on West Hartford v. Freedom of Information Commission, 218 Conn. 256, 265, 588 A.2d 1368 (1991), which held that addresses of public employees who had taken significant steps to keep these addresses private could be found exempt from disclosure pursu­ant to § 1-210 (b) (2). At the hearing, it was established

that five employees not only had objected to the disclo-­

sure of their addresses, but had taken significant steps

to keep their addresses private. These efforts included

the exclusion of each employee's telephone number

and address from telephone directories. Specifically,

one employee testified that she refused all junk mail

and responded to such mail by requesting that her name

be removed from all mailing lists. Another employee

used a post office box as his address, kept his name

off mailing lists, and took other security measures as

a result of his concern for his personal safety and that

of his family. Two employees testified that they had

substantial security concerns regarding their addresses

based on previous incidents involving their families.[7]

 

 

 

 

 

 

 

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Another employee testified that, because he was the lead investigator in the investigation that had resulted in Youngquist's registration being revoked and subsequent arrest, he had some fear of retaliation.

 

                                                The commission held that the requested home

                                    addresses were not exempt pursuant to § 1-210 (b) (2),

                                    and ordered the plaintiff to disclose the requested home

                                    addresses of the department employees, excluding

                                    those addresses that the plaintiff already had provided

                                    to Youngquist. The decision relied largely on the ruling

                                    of the court, McWeeny, J., in the appeal concerning

                                    Youngquist's first request, which had ordered the

                                    release of the addresses in question and had concluded

                                    that employees do not have a privacy interest in their

                                    home addresses under § 1-210 (b) (2) even if they have

                                    taken steps to keep their addresses private.[8] The com­

                                    mission also ordered the plaintiff to " 'strictly comply' "

                                    with the provisions of the act in the future.

 

The plaintiff appealed from the commission's decision to the trial court.[9] The trial court, Hartmere, J.,

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dismissed the appeal, concluding that all of the

addresses requested were required to be disclosed pur­

suant to the § 1‑210 (b) (2). Applying the test set forth

in Perkins v. Freedom of Information Commission,

228 Conn. 158, 175, 635 A.2d 783 (1993), the trial court

held that state employees' addresses are a matter of

legitimate public concern because the public is "legiti-­

mately interested in ascertaining" the addresses, town,

and street where state employees reside. The court also

held that it would not be highly offensive to a reasonable

person to disclose the addresses of the five employees

who had taken significant steps to keep their addresses

private. The court stated " 'as the majority of persons

freely disclose their addresses, the disclosure of an

address is not generally highly offensive to a reasonable

person.' " The court reasoned that allowing an exemp-­

tion for the five employees would be to rely on " 'their

purely subjective desires' " for privacy.                                                                         

 

This appeal followed. The issue before this court is whether the trial court properly determined that the disclosure of the addresses of the five state employees  would not constitute an invasion of privacy and, there­fore, that the information was not exempt from disclo­sure under § 1-210 (b) (2). We conclude that disclosure in this case would constitute an invasion of privacy and that the information was exempt from disclosure.

 

I

            Before addressing this issue, we briefly set forth the applicable standard of judicial review. Ordinarily, "[o]ur       resolution of this [appeal] is guided by the limited scope       of judicial review afforded by the Uniform Administra­-

                       

 

 

 

 

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Director, Retirement & Benefits Services Division v. Freedom of Information Commission1

         ____________________________________________________________________________

 

tive Procedure Act; General Statutes § 4-166 et seq.; to

the determinations made by an administrative agency.

[W]e must decide, in view of all the evidence, whether

the agency, in issuing its order, acted unreasonably,

arbitrarily or illegally, or abused its discretion. Ottoch­-

ian v. Freedom of Information Commission, 221 Conn.

393, 397, 604 A.2d 351 (1992).... Conclusions of law

reached by the administrative agency must stand if the

court determines that they resulted from a correct appli­-

cation 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 Com­-

mission, 181 Conn. 324, 342-43, 435 A.2d 353 (1980)."

(Internal quotation marks omitted.) Perkins v. Freedom

of Information Commission, supra, 228 Conn. 164-65.

A reviewing court, however, is not required to defer to an improper application of the law. Board of Educa­tion v. Freedom of Information Commission, 217 Conn. 153, 159, 585 A.2d 82 (1991); Connecticut Hospi­tal Assn., Inc. v. Commission on Hospitals & Health Care, 200 Conn. 133, 140, 509 A.2d 1050 (1986). It is the function of the courts to expound and apply governing principles of law. National Labor Relations Board v. Brown, 380 U.S. 278, 291, 85 S. Ct. 980, 13 L. Ed. 2d 839 (1965); Connecticut Hospital Assn., Inc. v. Com­mission on Hospitals & Health Care, supra, 140. We previously have recognized that "the construction and

 

 

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         ____________________________________________________________________________

 

 

interpretation of a statute is a question of law for the

courts, where the administrative decision is not entitled

to special deference ...." (Internal quotation marks

omitted.) State Medical Society v. Board of Examiners

in Podiatry, 208 Conn. 709, 718, 546 A.2d 830 (1988);

New Haven v. Freedom of Information Commission,

supra, 205 Conn. 773-74; Texaco Refining & Marketing

Co. v. Commissioner of Revenue Services, 202 Conn.

683, 699, 622 A.2d 771 (1987); Schlumberger Technology

Corp. v. Duhno ,202 Conn. 412,423,621 A.2d 669 (1987).

Questions of law "[invoke] a broader standard of review

than is ordinarily involved in deciding whether, in light

of the evidence, the agency has acted unreasonably,

arbitrarily, illegally or in abuse of its discretion." State

Medical Society v. Board of Examiners in Podiatry,

supra, 718; Robinsonv. Unemployment Security Board

of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980). Because

this case forces us to examine a question of law, namely,

the construction and interpretation of §1-210 (b) (2)

as well as the standard to be applied, our review is de

novo.

 

II

 

With these legal principles in mind, we next examine the applicable statute in this case. Section 1-210 (a) provides in relevant part 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...." [10] "[I]t must be noted initially that there is an overarching policy

 

 

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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 . . . legislation [comprising the act]." (Internal quotation marks omitted.) 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 Commission, 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; see also Rocque v. Freedom of Information Commission, 255 Conn. 651, 660-61, A.2d (2001).

 

Section 1-210 (b) provides in relevant part that "[n]othing in the Freedom of Information Act shall be construed to require disclosure of . . . (2) [p]ersonnel

or medical files and similar files the disclosure of which would constitute an invasion of personal privacy ...." The person claiming exemption based upon § 1-­210 (b) (2) "must meet a twofold burden of proof. First, the person claiming the exemption must establish that the files are personnel, medical or similar files." Rocque v. Freedom of Information Commission, supra, 255 Conn. 661. In the present case, there is no dispute that Youngquist sought disclosure of personnel or similar files.  “Second, the person claiming the exemption under § 1-210 (b) (2) must also prove that disclosure of the

 

 

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Director, Retirement & Benefits Services Division v. Freedom of Information Commission

         ____________________________________________________________________________

 

files would constitute an invasion of personal privacy."

Id.; Perkins v. Freedom of Information Commission,

supra, 228 Conn. 169; Superintendent of Police v. Free­-

dom of Information Commission, supra,222 Conn.626.

 

Our analysis of what constitutes an invasion of privacy is controlled by Perkins v. Freedom of Informa­tion Commission, supra, 228 Conn. 175. In Perkins, we enunciated the standard for determining whether a disclosure constitutes an invasion of personal privacy under § 1-210 (b) (2). We held that "the invasion of personal privacy exception of [ § 1-210 (b) (2)] precludes disclosure . . . only when [1] the information sought by a request does not pertain to legitimate matters of public concern and [2] is highly offensive to a reason­able person..” [11]   Id.; see also Rocque v. Freedom of Infor­mation Commission, supra, 255 Conn. 661; Dept. of Public Safety v. Freedom of Information Commission, 242 Conn. 79, 84-85, 698 A.2d 803 (1997). "Concededly,this standard is easier to state than to apply, but it has

been accepted as the touchstone for subsequent cases

addressing this element of § [1-210] (b) (2). See Con­-

necticut Alcohol & Drug Abuse Commission v. Free­-

dom of Information Commission, 233 Conn.28, 43, 657

A.2d 630 (1995); Kureczka v. Freedom of Information

Commission, [228 Conn.271, 277,636 A.2d 777 (1994)]."  Dept. of Public Safety v. Freedom of Information Com­mission, supra, 84. "A party seeking to invoke the

exemption under § [1-210] (b) (2) must meet each of

these burdens of proof independently. The Perkins

standard 'does not signal a return to the invocation of

a balancing test, which we explicitly rejected in Chair­-

man v. Freedom of Information Commission, [217

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Director, Retirement & Benefits Services Division v. Freedom of Information Commission1

         ____________________________________________________________________________

 

Conn. 193, 200‑201, 585 A.2d 96 (1991)].’ Perkins v. Freedom of Information Commission, supra, 175." Dept. of Pubblic Safety v. Freedom of Information Com­mission, supra, 85.

 

Although the two‑prong standard in Perkins estab­lishes the test to be applied to determine whether an invasion of privacy under the act exists, the trial court decision in the present case and both party's briefs spend considerable time debating whether the standard set forth under Perkins controls our analysis, or whether our decision in West Hartford v. Freedom of Information Commission, supra, 218 Conn. 26~65,

which held that the addresses of public employees who

had taken significant steps to keep these addresses

private could be found exempt from disclosure pursu­-

ant to § 1-210 (b) (2), is the applicable rule of law in

this case. 

 

The plaintiff claims that he should prevail under either standard. The commission argues that the trial court properly concluded that the language in West

Hartford discussing the significant efforts that a person

may take to keep information private was dicta. In the

alternative, the commission argues that our decision in

Perkins overruled our holding in West Hartford.

 

We first clarify any confusion by reaffirming that we adhere to the two‑prong standard set forth in Perkins when determining what constitutes an invasion of pri­vacy. We note, however, that although the Perkins stan­dard eontrols our determinations of cases involving privacy exemptions under the act, our decision in West Hartford addressing the "significant steps" a person may take to maintain privacy was not merely dicta. The trial court's conclusion of law to the contrary, therefore, was improper. Our courts repeatedly have looked to the decision in West Hartford for guidance on how to address requests for disclosure of home addresses and

 

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other private information. See Glastonbury Education

Assn. v. Freedom of Information Commission, 234

Conn. 704, 725, 663 A.2d 349 (1995) (Borden, J., concur­

ring and dissenting); Perkins v. Freedom of Informa­

tion Commission, supra, 228 Conn. 174; Chairman,

Board of Education v. Freedom of Information Com­

mission, 60 Conn. App. 584, 591, 760 A.2d 534 (2000);

O'Connell v. Freedom of Information Commission, 54

Conn. App. 373, 379 n.9, 735 A.2d 373 (1999). The analy­-

sis employed in West Hartford is relevant to the claim

that significant efforts taken by a public employee to

keep certain information private bears on the court's

determination of whether the information constitutes

a legitimate matter of public concern and is highly offen­-

sive to a reasonable person. Under the present facts,

we conclude that the plaintiff has satisfied his burden

of demonstrating that such disclosure constitutes an                               

invasion of privacy.                              

 

A

 

   First, we address whether the material that is claimed

to be exempt from disclosure is of legitimate public

concern. Given the efforts that these employees took

to keep their information private, the plaintiff argues

that the information requested is not a legitimate matter

of public concern because no public interest is served

by exposing aspects of their private lives that do not

impact the public. At oral argument before this court,

the commission withdrew the request for the street

addresses of the five employees, noting that neither

Youngquist nor the commission had a legitimate public

interest in this particular information. The commission,

however, formally modified its position at oral argu­-

ment to request disclosure of the town and state where

each of these five employees reside. The commission

argues that there is a legitimate public interest in know­-

 

 

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ing whether state employees are state residents. [12] We

agree with the plaintiff.

 

  Although the "legislature has determined that disclo-sures relating to the employees of public agencies are presumptively legitimate matters of public concern

[that] presumption is not . . . conclusive." Dept. of

Public Safety v. Freedom of Information Gommission,

supra, 242 Conn. 88, quoting Perkins v. Freedom of

Information Commission, supra, 228 Conn. 174. We

previously have held that where a public official's pri­-

vate life does not concern or implicate hisjob as a public

official, such information is not a legitimate matter of

public concern. Rocque v. Freedom of Information

Commission, supra, 255 Conn. 663‑64; Dept. of Public

Safety v. Freedom of Information Commission, supra,

87‑90. In Dept. of Public Safety, we ordered disclosure

of an investigatory report concerning on‑duty conduct,

but did not order another report disclosed because it

“did not focus on the conduct of [an employee's] official

business ...." Dept. of Public Safety v. Freedom of

Information Commission, supra, 89. The protected

report concerned a citizen's claim that a state trooper

had engaged in an inappropriate relationship with the

wife of the complainant. Id. In the present case, these

five employees' choice of residence, including the spe-

cific town and state in which they are located, are not

legitimate matters of public concern because the infor-

mation does not concern or implicate their jobs as pub-

lic officials.

 

   Further, in determining whether the information is a

legitimate public concern, we have examined what

steps an individual has taken to maintain certain infor­-

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mation private, especially giving deference to informa­-

tion that is unrelated to a person's public life. See West

Hartford v. Freedom of Information Commission,

supra, 218 Conn.265 (ordering commission to hold new

evidentiary hearing to allow municipal retirees whose

addresses had been requested to present evidence of

their "significant efforts" to keep addresses private).

Most recently, in Rorque v. Freedom of Information

Commission, supra, 255 Conn. 664‑65, we held that

the identity and home address of the complainant in a

sexual harassment investigation at issue was exempt

from disclosure under the act. In holding that the infor­-

mation requested was not a legitimate matter of public

concern, we noted that the complainant consistently

had requested the information be kept confidential, pri­-

marily for fear of retaliation or other security con­-

cerns. Id.

 

   Also, in Chairman, Board of Education v. Freedom          

of Information Commission, supra, 60 Conn. App. 591,        

the Appellate Court ordered a remand to the commis­-

sion to permit a public employee with a privacy claim

"no less of an opportunity to prove that the disclosure

of [the requested information] would constitute an inva­-

sion of her privacy." In O'Connell v. Freedom of Infor­

mation Commission, supra, 54 Conn. App. 379, the

Appellate Court rejected the claim that the home

addresses of members of volunteer fire departments

were exempt from disclosure pursuant to § 1‑210 (b)

(2). The court reasoned that the addresses in dispute

were not protected because "[n]othing in the record

indicates that the plaintiffs have taken serious efforts

to insulate their addresses from the public domain."

Id., 379 n.9.

 

  The holdings in these cases recognize that public employees are properly subject to increased scrutiny regarding matters that affect their job performance as a result of the public nature of their employment. No

 

 

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public interest is served, however, by exposing aspects of their private lives that do not impact the public, particularly where the employee has taken significant steps to keep nonpublic information private.

 

   In the present case, unlike the other employees, these

five employees took significant steps to keep their

addresses private. The various steps these employees

took included: (l) excluding their telephone numbers

and home addresses from telephone directories; (2)

requesting that their names be removed from all mailing

lists; (3) using a post office box as the address for all

public correspondence; and (4) requesting that their

names be removed from mailing lists when solicitations

came via mail. Moreover, many of these employees

sought to keep their addresses private for security rea­-

sons and concern of retaliation.

 

   The trial court, therefore, in ruling that a state

employee does not have a protected privacy interest in

his residential address, improperly took an overly

broad, categorical approach in its examination of all

the addresses requested. The Perkins test requires that

a determination be made regarding each request for

information. Dept. of Public Safety v. Freedom of Infor­-

mation Commission, supra, 242 Conn. 87 (approved

method of trial court, which held that disclosure of

multiple investigatory reports "should be decided, not

categorically, but on a case‑by‑case basis").

 

   The commission contends that the plaintiff cannot establish that the home addresses of the employees here do not pertain to a legitimate matter of public concern. The basis of this contention is that such addresses might be necessary to demonstrate that improper hiring practices are occurring, namely, that an undue number or proportion of employees live in a

particular area, suggesting favoritism, or, to the con­-

trary, that no employees come from a different area,

 

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suggesting a negative bias. The commission conceded at oral argument before this court, however, that there is nothing in the record to suggest such improper hiring practices. As the commission also conceded, moreover, employing such a test for the establishment of a lack of legitimate public concern would be analogous to the rational basis test for the constitutionality of a statute, namely, that the statute passes muster if the court can conceive of a rational basis for it. See, e.g., Ramos v. Vernon, 254 Conn. 799, 829, 761 A.2d 705 (2000). Thus, under this analogy, a matter is or would be of legitimate public concern if there is any rationally conceivable basis for it that would be of such concern. We disagree with this analogy and, therefore, with the contention that it supports.

 

First, we implicitly rejected it in Dept. of Public Safety v. Freedom of Information Commission, supra, 242 Conn. 79. In that case, we held that the report involving "the investigation of a citizen complaint that [a state]

trooper was involved in an inappropriate relationship

with the complainant's wife"; id., 89; was not of legiti­-

mate public concern because it "did not focus on the

conduct of the trooper's official business            " Id.

Applying a rational basis to such a report, however,

probably would have led to a different result, because

it is rational to conceive that a state trooper's private but

inappropriate conduct with another man's wife might

serve as the basis of a claim that the trooper was prone

to abusing his position.

 

Second, there is nothing in the language or purpose of the act to suggest such a test. The rational basis test is premised on the traditional deference of the judicial branch to the legislature in appropriate legal contexts. It may be viewed, therefore, as arising out of the separa­tion of powers. There is no basis to transport that doc­-

trine into the realm of judicial interpretation of the act.

 

 

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256 Conn. 764                                     JULY, 2001                                         781

 

Director, Retirement & Benefits Services Division v. Freedom of Information Commission

         ____________________________________________________________________________

 

 

In order to establish an exemption under § 1‑210 (b) (2), however, the party claiming the exemption must also demonstrate 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 plaintiff argues that the trial court improperly applied the Perkins standard when it concluded that the plaintiff's concerns were purely subjective. The plaintiff, therefore, argues that it would be highly offensive to a reasonable person who had taken significant steps to protect this information to be required now to disclose such information. The commission argues that although disclosure in this case may be offensive to these five employees, it is not highly offensive to a reasonable person. The commission, therefore, argues that the trial court properly applied the Perkins test when it concluded that the department employees' privacy concerns were purely subjective and that because " 'the majority of persons freely dis­close their addresses, the disclosure of an address is not generally highly offensive to a reasonable person.' " We again agree with the plaintiff.

 

We recognize that requiring disclosure of the informa­tion requested in this case by employees who have made no effort to protect it would not be highly offensive to a reasonable person. The standard that is applied, however, is different for employees who took signifi­cant and repeated steps to maintain the privacy of their addresses. In this case, the standard under Perkins is whether it is highly offensive to require disclosure of the addresses of employees who take significant mea­sures to protect private information from being dis­closed. This test does not rely on the five employees' subjective desires for privacy as enunciated by the trial court, but, rather, more precisely, establishes a test that makes an objective assessment of the public availability

 

 

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256 Conn. 764                                     JULY, 2001                                         782

 

Director, Retirement & Benefits Services Division v. Freedom of Information Commission

         ____________________________________________________________________________

 

 

of the information based on the employee's specific

efforts to maintain privacy. See West Hartford v. Free­-

dom of Information Commission, supra, 218 Conn.

264‑65 (court will take into account those "persons

who, through significant efforts, have made a conscious

attempt to insulate their addresses from the public

domain"); O'Connell v. Freedom of Information Com­

mission, supra, 54 Conn. App. 379; see generally Per­-

kins v. Freedom of Information Commission, supra,

228 Conn. 174‑75.

 

   Here, the employees obtained unlisted telephone numbers, removed their names from mailing lists and used post office boxes. These measures were taken largely in response to security concerns regarding the release of their addresses. We cannot conclude that a reasonably objective person, after taking such protec­-

tive measures, would consider disclosure at this junc‑

ture a "minor" or a "moderate" annoyance. Perkins v.

Freedom of Information Commission, supra, 228

Conn. 173, quoting comment (c) of § 652D of the

Restatement (Second) of Torts ("minor and moderate

annoyance . . . is not sufficient to give [a plaintiff] a

cause of action under the rule stated in this Section"

[internal quotation marks omitted]). Under these cir­-

cumstances, we conclude that it is highly offensive to a

reasonably objective person to disclose this information

after taking significant steps to keep it private. [13]

 

   We conclude, therefore, that the plaintiff has satisfied

his burden under § 1-210 (b) (2) and the twofold test

 

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256 Conn. 764                                     JULY, 2001                                         783

 

Director, Retirement & Benefits Services Division v. Freedom of Information Commission

         ____________________________________________________________________________

 

 

under Perkins, that the information in the record is not

a legitimate public interest and that the disclosure of the

information would be highly offensive to a reasonable

person. Consequently, the addresses, and information

on the town and state where each of these five state

employees resides are exempt from public disclosure

under § 1‑210 (b) (2).

 

   The judgment is reversed and the case is remanded

to the trial court with direction to sustain the plain­

tiff's appeal.

 

   In this opinion BORDEN, PALMER and VERTEFEU­-

ILLE, Js., concurred.

 

                                    ZARELLA, J., concurring. I concur in the result

                                    reached by the majority. Nevertheless, I write sepa­-

                                    rately to express my view that this case demonstrates

                                    the need to revisit and reconsider the standard for

                                    determining when an invasion of privacy occurs for

                                    purposes of General Statutes § 1‑210 (b) (2). The

                                    existing standard is set forth in Perkins v. Freedom of

                                    Information Commission, 228 Conn. 158, 635 A.2d 783

                                    (1993), in which this court stated that "the invasion of

                                    personal privacy exception of [General Statutes (Rev.

                                    to 1993] § 1‑19 (b) (2) [now codified at General Statutes

                                    § 1‑213 (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. Thus, under

                                    Perkins, we adopted an objective tort standard in defin-­

                                    ing invasion of privacy. The second prong of this stan-­

                                    dard is not concerned with whether the individual

                                    official or employee is highly offended by the disclo­-

                                    sure, but, rather, whether a reasonable person in similar

                                    circumstances would be highly offended.

 

                                       In West Hartford v. Freedom of Information Com­-

                                    mission, 218 Conn.256,588 A.2d 1368 (1991), this court

                                    opined that the home addresses of retired town employ­

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256 Conn. 764                                     JULY, 2001                                         784

 

Director, Retirement & Benefits Services Division v. Freedom of Information Commission

         ____________________________________________________________________________

 

 

ees were proper subjects for disclosure under the Free­

dom of Information Act unless the town employees

"through significant [effort], ha[d] made a conscious

attempt to insulate their addresses from the public

domain." Id., 264. The court in West Hartford consid­-

ered "a person's reasonable expectation of privacy and

the potential for embarrassment as significant factors

in determining if disclosure [of public records] would

constitute an invasion of privacy." (Internal quotation

marks omitted.) Id., 263. Thus, in determining whether

the disclosure would amount to an invasion of privacy

under § 1‑19 (b) (2), the court applied a hybrid (subjec­-

tive and objective) standard that considers: (1) whether

the employee subjectively has demonstrated an expec­-

tation of privacy; and (2) whether that expectation of

privacy is objectively reasonable. This is in contrast to

the purely objective standard of whether a reasonable

person would be highly offended by the disclosure as

set forth in Perkins.

 

   In the present case, the majority states that "[t]he analysis employed in West Hartford is relevant to the claim that significant efforts taken by a public employee to keep certain information private bears on the court's determination of whether the information constitutes a legitimate matter of public concern and is highly offen­sive to a reasonable person." In an effort to reconcile the hybrid standard employed in West Hartford with the objective standard of Perkins, the majority states: "We recognize that requiring disclosure of the informa­tion requested in this case by employees who have made no effort to protect it would not be highly offensive to a reasonable person. The standard that is applied, however, is different for employees who took signifi­cant and repeated steps to maintain the privacy of their addresses. In this case, the standard under Perkins is

whether it is highly offensive to require disclosure of                  

the addresses of employees who take significant mea‑

 

 

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256 Conn. 764                                     JULY, 2001                                         785

 

Director, Retirement & Benefits Services Division v. Freedom of Information Commission

         ___________________________________________________________________________

 

sures to protect private information from being dis-­

closed This test does not rely on the five employees

subjective desires for privacy as enunciated by the trial

court, but, rather, more precisely, establishes a test that

makes an objective assessment of the public availability

of the information based on the employee's specific

efforts to maintain privacy."

 

There was no evidence in the record, however, to

suggest that the five employees who had taken such

steps did so because of any different objective concerns

for security than those of the employees who had not

taken steps. Rather than consider whether a reasonable

person would have found the disclosure of the informa‑

tion highly offensive, the majority relies on the subjec­-

tive concerns of the employees who took steps to keep

the information private.

.

The majority correctly notes that none of the parties

has asked this court to reconsider the precedent estab­

lished in Perkins. Thus, this court is under no obligation

to do so. Rather than wait for “another day” as the

majority suggests, however; footnote 13 of the majority

opinion; I would have requested briefs and argument

on whether Perkins should be overruled and, if so, what

standard should apply. Failing that course, however, I

join in the court’s implied invitation to reconsider Per-

kins in a future case.