January 23, 2003
STANDARD FOR DETERMINING INVASION OF PRIVACY UNDER FREEDOM OF INFORMATION
By: Sandra Norman-Eady, Chief Attorney
You asked for the standard for determining when the disclosure of information constitutes an invasion of personal privacy under the Freedom of Information Act (FOIA).
FOIA requires all public agencies to make the records that they keep or maintain available to the public unless federal or state law, including the FOIA's exemptions, allows or requires them to be treated confidentially (CGS §1-210 (a)).
Included in FOIA's delineation of the types of records that public agencies are not required to disclose is an exemption for “medical files and similar files the disclosure of which would constitute an invasion of personal privacy” (CGS §1-210 (b)(2)). Although FOIA does not define the phrase “invasion of privacy,” the state Supreme Court held in 1993 that it is most analogous to the common law tort of invasion of privacy, “particularly in that aspect…that provides a remedy for unreasonable publicity given to a person's private life” (Perkins v. Freedom of Information Commission, 228 Conn. 158, 171 (1993)).
Guided by the tort standard, the Court established a two-pronged test for determining when information is private and may not be disclosed under FOIA. Information should not be disclosed when it (1) does not pertain to legitimate matters of public concern and (2) is highly offensive to a reasonable person (Perkins at 175).
With respect to the first prong, the state Supreme Court has recognized a presumption that disclosures relating to public agency employees are legitimate matters of public concern. However, this presumption is not conclusive. Public employees may successfully rebut this presumption by proving the confidential nature of certain information in their files (see Chairman v. Freedom of Information Commission, 217 Conn. 193 (1991) where a public employee successfully argued that the public had no legitimate concern in internal departmental, personnel evaluations).
With respect to the second prong, the Perkins Court notes that public servants have less right to privacy than private citizens. “[W]hen a person accepts public employment, he or she becomes a servant of and accountable to the public. As a result, that person's reasonable expectation of privacy is diminished.... The public has a right to know not only who their public employees are, but also when their public employees are and are not performing their duties” (at 177). What this likely means is that the reasonable person standard refers to a reasonable public servant when the person objecting to disclosure is a public servant and a reasonable private citizen when the person objecting is a private citizen.
The burden of establishing the applicability of an exemption rests with the party claiming it (New Haven v. Freedom of Information Commission, 205 Conn. 767, 775 (1988)). Thus, anyone who cites privacy under CGS §1-210 (b)(2) as the basis for keeping a record confidential must prove that the record is one the subsection seeks to protect and then the two-pronged privacy standard.