FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

 

In the Matter of a Request
 for Advisory Opinion


 

     Advisory Opinion   #70

Second Taxing District of the City of Norwalk, Applicant

    

 

 

 

On March 9, 1988, the Commission considered and agreed to respond to a request for an advisory opinion filed on behalf of the Second Taxing District of the City of Norwalk. In its request, the applicant states that it is a municipal corporation which owns and operates water and electric departments in South Norwalk, Connecticut. The applicant's billing records for its customers include the following information: electrical and water usage; amount owed; and payment history. The applicant does not object to disclosing the aggregate figures for water and electrical usage. It feels, however, disclosure of the subject information which identifies individual ratepayers would constitute an invasion of personal privacy. In essence, then, the applicant seeks the Commission's opinion as to whether the subject information, which is contained in its utility billing records, is exempt from public disclosure under Conn. Gen. Stat. 1‑19(b)(2).

 

A

 

Conn. Gen. Stat. 1‑19(b)(2) provides that nothing in the Freedom of Information (hereinafter "FOI") Act shall require the disclosure of:

 

"personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy."

 

The applicability of Conn. Gen. Stat. 1-19(b)(2) is governed by a two‑pronged test. Hartford v. FOI Commission, 201 Conn. 426, 431 (1986). First, the records must constitute personnel or medical files or similar files. Id. at 432. Second, the disclosure of the personnel, medical or similar files must constitute an invasion of personal privacy. Id.

 

Obviously, the subject information does not constitute a personnel file or a medical file. Since similar files "encompass only files similar in nature to personnel or medical files," (Id.), the Commission likewise believes that the subject information does not constitute a similar file within the meaning of Conn. Gen. Stat. 1-19(b)(2). But, even if the information in question were considered personnel, medical or similar files, the 1-19(b)(2) test also requires that disclosure of the information constitute an invasion of personal privacy. Under the circumstances presented here, the Commission does not believe applicable privacy law supports a conclusion that disclosure of the subject information would constitute an invasion of personal privacy.

 

The law of privacy has been divided into two distinct components. State v. Anonymous, 40 Conn. Sup. 38, 45-46 (1984, Hendel, J.). The first component is constitutional in dimension. Id. This aspect of privacy recognizes the right to be free from substantial governmental regulation in traditionally private areas of one's life such as marriage, procreation, family relationships, child rearing and education. Id. It is clear that the constitutional sphere of privacy law is not implicated in this matter.

 

Inasmuch as the statutory exemption enumerated in Conn. Gen. Stat. 1‑19(b)(2) does not define what constitutes an invasion of privacy, the Commission and the courts have relied upon the common law of privacy to determine whether there has been in fact an invasion of privacy. Personnel Directory v. FOI Commission, Super. Ct., No. 86-0324199, J.D. Hartford/New Britain (March 8, 1988), p. 6; Corporation Counsel's Office v. FOI Commission, Super. Ct., No. 85‑308863, J.D. Hartford/New Britain (March 8, 1988), p. 5; Bloomfield v. FOI Commission, 4 C.L.T. No. 13 (Ct. Com. Pl. 1978), p. 14.

 

In recognizing for the first time a cause of action for the invasion of privacy under common law, the Connecticut Supreme Court approved two definitions of what constitutes an invasion of privacy. Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 127‑128 (1982). The first definition is set forth in 3 Restatement (Second), Torts 652A as follows:

 

"(a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; (d) publicity that unreasonably places the other in a false light before the public."

 

The second definition can be found in Prosser, Torts (4th Ed. 1971) 117. pp. 804-815 and Prosser, "Privacy," 48 Cal. L. Rev. 383 (1960), and reads:

 

"[1]" appropriation, for the defendant's benefit or advantage, of the plaintiff's name or likeness; [2] intrusion upon the plaintiff's physical solitude or seclusion; [3] publicity of a highly objectionable kind, given to private information about the plaintiff, even though it is true and no action would lie for defamation; [4] publicity which places the plaintiff in a false light in the public eye."

 




 

See also, Bloomfield, supra, at pp. 20‑30, in which Judge Schaller developed a scholarly analysis of the law of privacy that is equally applicable to this matter. Judge Schaller sets forth the most universally accepted, comprehensive definition of the right to privacy as:

 

[T]he 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 a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities. Bloomfield v. FOI Commission, supra, at p. 23, citing 62 Am. Jur. 2d, Privacy, l.

 

In this regard, two important aspects of privacy law should be emphasized. First, the right of privacy does not cover disclosure of information that is already a part of a public record. Cox Broadcasting Corporation v. Cohn, 420 U.S. 469, 493-495 (1975); Goodrich, supra, at p. 134. Second, the right of privacy does not cover information that is of "legitimate public or general interest." Bloomfield, supra, at p. 24, quoting from 62 Am. Jur. 2d, Privacy, 16 at pp. 700‑701. As the Connecticut Supreme Court stated:

 

"The right of privacy must give way when balanced against the publication of matters of public interest, in order to insure uninhibited, robust and wide-open' discussion of legitimate public issues."

 

Goodrich, supra, at pp. 133‑134, quoting in part from New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

 

-B-

 

The information in question reveals certain facts about individual ratepayers. Although.the subject information reveals the names of private citizens and their payment history, nondisclosure of personal financial information is not always mandated. State Tax Department v. FOI Commission, 4 C.L.T. 7 (Ct. Com. Pl. 1978). The subject information also may reveal data concerning suspiciously high power or water usage. The subject information neither is vital or intimate, nor would its disclosure be patently offensive. Glastonbury Superintendent of Schools v. FOI Commission, 9 C.L.T. 6 (Sup. Ct. 1982). It is the Commission's opinion, therefore, that the subject information does not fall within the ambit of protected privacy interests articulated in the above definitions.

 

Even if there were a right of privacy in the information in question, in balancing that right against the right of the public to know, nondisclosure of the records in question would defeat the FOI Act's strong legislative policy in favor of open government. Board of Trustees v. FOI Commission, 181 Conn. 544 (1980). With respect to the information concerning individual ratepayers' payment histories, the public has an interest in knowing whether the applicant is acting properly in billing its customers and in its efforts to collect accounts. With respect to the information concerning individual ratepayers' water and power usage, the public, under certain circumstances, may have an interest in knowing whether individual ratepayers are using excessive amounts of electricity or water. In fact, the public interest in that information may be of the utmost importance should there be a water shortage or power outage. Thus, even if there were a right of privacy in the information in question, the public interest in disclosure of the subject information would offset that right. Bloomfield, supra at p. 24.

 

Based on the foregoing facts and analysis, it is the Commission's opinion that since the information in question does not constitute a personnel, medical or similar file within the meaning of Conn. Gen. Stat. 1‑19(b)(2), it is not exempt from public disclosure under that statutory provision. Even if the subject information were a personnel, medical or similar file, it is the Commission's opinion that in the absence of extraordinary circumstances, public disclosure of that information would not constitute an invasion of personal privacy under the above definitions and within the meaning of 1‑19(b)(2), G.S. The Commission, therefore, believes that disclosure of the subject information, contained in the applicant's municipal electrical and water billing records, would be required under the FOIA.

 

 

                                                                                            By Order of the Freedom of
                                                                                            Information Commission

                                                                                           

                                                                                ________________________
                                                                                            Curtis Cofield, Chairman of
                                                                                            of the Freedom of Information
                                                                                            Commission

Date ___________________

 

Ordered_________________

Catherine H. Lynch,
Acting Clerk of the Commission