228 Conn. 271 | Conn. | 1994
Lead Opinion
The dispositive issue in this appeal is whether employment applications for public employment are exempt from disclosure under the “invasion of personal privacy” exemption of the Freedom of Information Act (FOIA).
The city individually notified all those mentioned in Kemper’s request of their right under General Statutes § l-20a (a) through (c)
On August 9,1991, the defendants filed a complaint with the FOIC to compel the release of the employment applications of twelve of the fourteen persons whose records had been the subject of the original request.
The FOIC undertook an in camera inspection of the requested records and then rendered its final decision ordering the city’s personnel department to provide
The plaintiffs filed a timely appeal to the trial court. After a hearing, the trial court dismissed the appeal. The court rejected the plaintiffs’ claim that the § 1-19 (b) (2) exemption applies whenever the objecting party could conceivably suffer embarrassment or other harm from disclosure. The court noted: “If the mere possibility of embarrassment of a government
The court also held that the individual plaintiffs could not have entertained a reasonable expectation that the material in their employment applications would be considered private when they originally gave that information to the city. Again rejecting the use of a subjective standard to determine the reasonableness of an employee’s reliance on representations of confidentiality, the court concluded that the FOIC was not required to give any weight to alleged representations of confidentiality unless such representations were valid and authorized at the time they were made and relied upon. In conclusion, the court stated, “[t]o hold that erroneous representations of confidentiality by the city bars disclosure otherwise proper would make the city rather than the commission the arbiter of what items in a personnel file are subject to disclosure. The FOIA contains no provisions regulating the representations that a government agency may make concerning confidentiality. Conceivably such an agency might declare all of its personnel records to be confidential, even when the information sought could not possibly involve privacy. To circumvent this fox-guarding-the-hen-house scenario, the court concludes that the commission cannot
In their appeal, the plaintiffs maintain that the trial court improperly upheld the FOIC’s determination that the disclosure of their redacted employment applications would not constitute an invasion of personal privacy under § 1-19 (b) (2). We affirm the judgment of the trial court.
This case provides us with an opportunity to apply the “invasion of personal privacy” exemption standard recently enunciated in Perkins v. Freedom of Information Commission, 228 Conn. 158, 635 A.2d 783 (1993). In Perkins, we determined that “the invasion of personal privacy exception of § 1-19 (b) (2) precludes disclosure . . . only when the information sought by the request does not pertain to legitimate matters of public concern and is highly offensive to a reasonable person.” Id., 175. Only by proving both prongs of this standard by a preponderance of the evidence can a party establish a right to invoke the statutory exemption so as to preclude disclosure. As we explained in Perkins, this standard implements the underlying principle that disclosure is the general rule under the FOIA with “ ‘exceptions to this rule being narrowly construed. The burden of establishing the applicability of an exemption clearly rests upon the party claiming the exemption.’ New Haven v. Freedom of Information Commission, 205 Conn. 767, 775, 535 A.2d 1297 (1988).” Perkins v. Freedom of Information Commission, supra, 167.
The plaintiffs also claim that in determining whether reliance on representations that the employment applications would be considered confidential was reasonable, the FOIC and the trial court applied an improper standard. They argue, citing Chairman v. Freedom of Information Commission, 217 Conn. 193,198, 585 A.2d 96 (1991), that the proper test of what constitutes a reasonable expectation of privacy is procedural in nature and “depends on the circumstances which existed when the individual originally gave the govern
The position advanced by the plaintiffs cannot be sustained, either factually or as a matter of law. As a matter of fact, the FOIC made no finding that the plaintiffs had received assurances from their governmental employer that their employment applications would be treated as confidential. Without such a finding, there is no factual predicate for the plaintiffs’ argument. As a matter of law, the legitimacy of an expectation of privacy requires a substantive inquiry into the legitimacy of the governmental employee’s expectations. No public agency can shield public records from disclosure merely by agreeing to keep such records confidential. As the trial court noted, to hold otherwise would allow “the city rather than the commission [to be] the arbiter of what items in a personnel file are subject to disclosure.” Even if some or all of the plaintiffs had received representations of confidentiality from their governmental employer, the receipt of such representations would not establish their validity. The FOIC had the authority to decide that the public records sought in this case are of legitimate concern to the public and that their disclosure does not infringe upon the plaintiffs’ reasonable expectation of privacy under § 1-19 (b) (2).
The judgment is affirmed.
In this opinion Callahan, Berdon and Palmer, Js., concurred.
The Freedom of Information Act in its entirety is found in General Statutes §§ 1-15, l-18a, 1-19 through l-19c, l-20a through l-21a, and l-21c through l-21k.
Besides the named plaintiff, Gary Kureczka, the other individual plaintiffs are Steven Kardys, Angelo Musumeci, Harold Sandiford, Ted Polak, Steve Santilli, Douglas Gaboury, Paul Piezzo and Frank Abreu. These plaintiffs either are or were employees of the city of Hartford public works department. The other plaintiffs in this appeal are the city of Hartford and the city of Hartford personnel department. They are referred to collectively as the plaintiffs.
General Statutes § 1-19 provides in pertinent part: “access to public RECORDS. EXEMPT RECORDS. . . .
“(b) Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of . . . (2) personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . (Emphasis added.)
By letter dated July 12,1991, Kemper requested the initial employment applications and any subsequent employment applications used for promotions of an additional public works employee.
General Statutes § l-20a provides: “public employment contracts AS PUBLIC RECORD. OBJECTION TO DISCLOSURE OF PERSONNEL OR MEDICAL files, (a) Any contract of employment to which the state or a political subdivision of the state is a party shall be deemed to be a public record for the purposes of section 1-19.
“(b) Whenever a public agency receives a request to inspect or copy records contained in any of its employees’ personnel or medical files and similar files and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency shall immediately notify in writing (1) each employee concerned, provided such notice shall not be required to be in writing where impractical due to the large number of employees concerned and (2) the collective bargaining representative, if any, of each employee concerned. Nothing herein shall require an agency to withhold from disclosure the contents of personnel or medical files and similar files when it does not reasonably believe that such disclosure would legally constitute an invasion of personal privacy.
“(c) A public agency which has provided notice under subsection (b) of this section shall disclose the records requested unless it receives a written objection from the employee concerned or the employee’s collective bargaining representative, if any, within seven business days from the receipt by the employee or such collective bargaining representative of the notice or, if there is no evidence of receipt of written notice, not later than nine business days from the date the notice is actually mailed, sent, posted or otherwise given. Each objection filed under this subsection shall be on a
The letter also included a copy of the request letter that Kemper had sent to the city’s personnel department.
In his letter to the FOIC, Kemper informed the FOIC that two persons whose records were subject to the original requests to the city had agreed to the release of their records.
During the hearings, the defendants withdrew their requests pertaining to two of the persons whose records were subject to the original request and whose names were included in the complaint to the FOIC.
The FOIC permitted the personnel department to redact the following items from the requested records: (a) the information that the defendants had previously withdrawn from their request; (b) an arrest record of a criminal conviction for a minor offense occurring twenty years ago found in one job application; (c) a birth certificate; (d) a social security card; and (e) a report of separation from active duty in the military. The FOIC found that disclosure of the latter items would constitute an invasion of personal privacy pursuant to General Statutes § 1-19 (b) (2).
Perkins is not, however, a radical departure from our prior FOIA jurisprudence, because earlier, in Chairman v. Freedom of Information Com
The FOIC is an administrative agency; General Statutes § l-21j; and is, thus, governed by the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq. General Statutes § 4-183, which describes the Superior Court’s standard of review of an agency decision, provides in pertinent part: “appeal to superior court. . . .
“(j) The 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 findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment.”
Since this case was argued before we rendered our decision in Perkins v. Freedom of Information Commission, 228 Conn. 158, 635 A.2d 783 (1993), the trial court applied the standards that had previously been pronounced in Chairman v. Freedom of Information Commission, 217 Conn.
Concurrence Opinion
concurring.
I continue to disagree with the two part test, for determining whether material “would constitute an invasion of personal privacy” within the meaning of General Statutes § 1-19 (b) (2), that this court adopted in Perkins v. Freedom of Inf or-