Attorney General: Honorable William E. Curry, Jr., State Comptroller, 1994-028 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General Richard Blumenthal

October 11, 1994

Honorable William E. Curry, Jr.
State Comptroller
55 Elm Street
Hartford, CT 06106

Dear Mr. Curry:

We are in receipt of your August 16, 1994 letter, wherein you seek our advice "[i]n anticipation of a possible freedom of information request." The anticipated request, we learned, may seek, inter alia, the addresses of state employees that you have in computer files maintained for state payroll purposes. You state in the closing of the letter, "I expect to receive a request under FOI soon. Whether the request deals with addresses or not, I am requesting at this point a legal opinion from you about the issues raised here and any others you may deem relevant to disclosures of employee addresses by this office."

While it is our tradition and policy to decline requests based on hypothetical questions, we can give you some insights into the present state of the law relating to the issue of the disclosure of state employee addresses. Conn. Gen. Stat. Section 1-19(b)(2) exempts from disclosure public records contained in "personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy."

Whenever a public agency receives a request to inspect or copy records contained in any of its employees' personnel, medical or similar files and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency is required to notify each employee concerned, as well as the collective bargaining representative, if any, of each employee concerned. Upon receipt of a proper objection the agency may not disclose the requested records unless ordered to do so by by the Freedom of Information Commission. Conn. Gen. Stat. Section 1-20a.

In West Hartford v. Freedom of Information Commissioner, 218 Conn. 256, 588 A.2d 1368 (1991) a union and its president requested the names and addresses of all retired employees of the Town of West Hartford, which names and addresses it claimed were contained on a computer payroll list, such as that which you maintain. The town, without providing notice to concerned employees, denied the request on the grounds that such disclosure would constitute an invasion of privacy within the meaning of Conn. Gen. Stat. Section 1-19(b)(2).

Upon review of this privacy issue the Connecticut Supreme Court stated that "while ordinarily an address is not a private fact exempt from disclosure under Section 1-19(b)(2), the retirees should be afforded the opportunity to show that, by virtue of their significant efforts, they have a reasonable expectation of privacy in their addresses." West Hartford, 218 Conn. at 265. Accordingly, the court remanded the matter to the trial court with direction to remand the case to the Freedom of Information Commission for a new hearing at which the employees would be given an opportunity to demonstrate what, if any, efforts they may have taken to protect their addresses from public disclosure.

Two years after its decision in West Hartford the court revisited the Section 1-19(b)(2) privacy exemption to review a taxpayer association request for sick leave records of a public school teacher. Perkins v. Freedom of Information Commission, 228 Conn. 158, 635 A.2d 783 (1993).

In this case the court adopted and applied a new standard to determine whether the Section 1-19(b)(2) permissive exemption from disclosure applied. The new standard requires an employee or public agency relying upon the Section 1-19(b)(2) exemption to demonstrate that "the information sought by a request does not pertain to legitimate matters of public concern and is highly offensive to a reasonable person."1 Perkins, 228 Conn. at 175.

In applying this new standard, the court concluded that "[b]ecause of the lack of evidence in the record from which the FOIC could reasonably have found support under either the new standard articulated herein or the prior standard for her conclusions and hypotheticals the plaintiff cannot possibly prove that disclosure of the numerical data in her sick leave records would be highly offensive to a reasonable person." Id. at 177. Thus, the court denied Perkins' claim of privacy because "[t]he plaintiff has not met her burden [of proof] under the statute...." Id. Consequently, the court specifically declined to decide the remaining issue of whether the disclosure of Karen Perkins' sick leave records was of a legitimate concern to the public.

It is significant that in adopting a new Section 1-19(b)(2) standard and in denying Perkins' claim of privacy the court did not state that it was overruling its prior decision in West Hartford. Indeed, pursuant to the rule announced in West Hartford, the court in Perkins decided the validity of the Section 1-19(b)(2) privacy claim, not as a pure issue of law, but upon the specific facts and proof in that case. It emphasized again that "a sufficiently detailed record must reflect the reason why an exemption applies to the materials requested." Perkins, 228 Conn. at 176. It did not expressly reject the principle announced in West Hartford that employees whose addresses are requested must be given a specific opportunity pursuant to Conn. Gen. Stat.  1-20a, to demonstrate their significant efforts to keep their addresses private. West Hartford, 218 Conn. at 264, 265. Accordingly, it must be assumed that it is still the law, as set forth in West Hartford, that employees must be given the opportunity to demonstrate the factual basis of any claim of privacy they may wish to assert. Perkins should be read to qualify the appropriate standard that should be applied by the Freedom of Information Commission and the courts in determining whether an employee's evidence justifies his or her claimed privacy exemption.

The Freedom of Information Commission's decision in Marcela Nita v. State of Connecticut, Department of Environmental Protection, Docket No. FIC 93-299 (March 28, 1994) is consistent with our analysis of West Hartford and Perkins, which emphasize respectively the need for an opportunity for the employee to present evidence of efforts to maintain privacy in address cases and the general importance of the development of a factual record in Section 1-19(b)(2) cases. In that case, decided after Perkins, a non-state resident sought the address of a former state park law enforcement official, who also had been employed as a state corrections officer at the Enfield maximum security facility. After considering, among other facts, the efforts the employee had taken to keep his address private, the Freedom of Information Commission declined to order disclosure of the former state employee's address under the facts of the case. Thus, the Commission declined to render a blanket ruling that public employee addresses may not, as a matter of law, be the subject of a Section 1-19(b)(2) exemption. It too viewed the issue as one requiring a specific fact based decision.

While you and other custodians of public employee addresses may have specific knowledge that an employee has not treated his or her address as private, and thus there can be no reasonable belief that your disclosure of that address will constitute an invasion of privacy, there will undoubtedly be cases where you have information to the contrary. In cases where you have information that an employee has taken significant steps to keep his or her address private, we believe that a Section 1-20a notice ought to be provided to such an employee pursuant to the "reasonable belief" standard that is the condition precedent to requiring an agency to give notice under Section 1-20(a). Where the request, such as the one you hypothesize here, is for the addresses of all employees on the state's payroll list, there will no doubt exist a large number of employees about whom you lack any specific knowledge regarding their treatment of their home addresses. With this in mind, we observe that a request of this nature necessarily seeks the names of many state employees in safety sensitive positions, such as judges, prosecutors, state police and corrections officers. Disclosure of the addresses of these employees may very well result in their exposure to physical harm or harassment. Similarly, employees serving in other positions may be exposed to physical harm or harassment as a result of matters not related to their employment, such as spousal abuse and other domestic relations disputes, if their addresses are disclosed. Therefore, since there are undoubtedly some unidentified employees in these and other positions who have made significant efforts to keep their home addresses private, and the request is for disclosure of all state employee addresses, we believe that this is sufficient to support a "reasonable belief" predicate requiring you to provide, pursuant to Section 1-20a(c), notice to employees prior to releasing their addresses. This would justify temporary non-disclosure by you of the requested information pending receipt and review of employee objections.

In the event of an appeal from your decision to withhold specific addresses, the Freedom of Information Commission will have to determine whether that disclosure, based upon the particular facts of the cases in issue, would be highly offensive to a reasonable person and of no legitimate public concern. See Marcela Nita v. Connecticut Department of Environmental Protection. We trust that this opinion will permit you to respond to the Freedom of Information request that you anticipate.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Charles A. Overend
Assistant Attorney General

RB/CAO/fd


Footnote:

1 The standard applied by the court in West Hartford required the proponent of a Section 1-19(b)(2) exemption to demonstrate that there exists a reasonable expectation of privacy in the requested data coupled with a potential for embarrassment from disclosure. West Hartford, 218 Conn.at 263.


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