In a recent case, the Superior Court reminded us all about the limitations that exist under the so-called “personnel files” exception to the disclosure of records under Connecticut’s Freedom of Information Act (FOIA). One prominent limitation to this exception is that one must actually be alive in order to assert a privacy right in a personnel file.
By way of background, the FOIA contains an exception to the usual requirement for the disclosure of public records for “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.” Connecticut General Statutes §1-210(b)(2). 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 must immediately notify in writing (1) each employee concerned, and (2) the collective bargaining representative, if any, of each employee concerned. Connecticut General Statutes §1-214(b). The public agency then must disclose the records requested unless it receives a written objection from the employee concerned or his/her collective bargaining representative, within the time periods specified in the statute. Connecticut General Statutes §1-214(c). This statutory scheme had been applied to requests involving former employees.
While former employees may be entitled to this exception, former living persons are not. In Maurer v. Office of Corp. Counsel, City of Danbury, #FIC 2011-370 (June 13, 2012), affirmed, Office of Corp. Counsel, City of Danbury v. FOIC, 2013 WL 5289790 (Conn. Super. 2013), a request under the FOIA was made for various types of health records, including physical examination reports, hospital records, work status forms, excused absence records, and work capacity reports concerning numerous current and former City employees. Perhaps believing that many of the records requested could be exempt from disclosure, the City of Danbury sent written notices to all current and former employees (and unions) that were the subject of the request so as to permit them a chance to object to the disclosure of these records. Several of the former employees were deceased and (naturally) did not object to the disclosure of these records. In some of these circumstances, objections to disclosure were filed by women with the same last name as some of the deceased former employees, and Danbury asserted that these persons qualified as next of kin who could object on behalf of the deceased. In dismissing an administrative appeal by the City, the Superior Court found that the disclosure of personnel records concerning the deceased would not constitute an invasion of privacy under the FOIA because no such privacy right exists for the dearly departed. The Court noted that tort law instructively points to the maxim that the “right of privacy is based on injury to feelings and sensitivity which, absent a statute, extinguishes upon death.” The Court noted that there was no such statute extending privacy rights after death under the FOIA; in addition, the Court noted that the family members of the deceased did not have standing under the FOIA to object to the release of documents on behalf of the decedent.
It should be noted that this Superior Court decision and the underlying Freedom of Information Commission decision also offer a comprehensive discussion of the FOIA’s disclosure requirements as these requirements apply to living persons. What sometimes is forgotten is that the privacy right belongs to the employee, not the agency, and the agency does not have standing to assert the privacy rights of their current or former employees. See, e.g., Litten v. Chief, Police Department, City of Torrington, #FIC 2012-711 (July 24, 2013). In the absence of an objection by the employee or his/her union, the records at issue must be released. In addition, the public agency is not required (or even permitted) to withhold from disclosure (or even allow the employee or union a chance to object to disclosure) the requested personnel files when the agency does not reasonably believe that such disclosure would legally constitute an invasion of personal privacy. Connecticut General Statutes §1-214(b). Thus, an agency cannot simply punt to the union or employee every time it receives a request for personnel records or related documents. Since the FOIC has the power to issue fines, a public agency should not simply give employees the blanket right to object to disclosure of all records. It is especially true where the agency gives someone the option to object who has no power to object (e.g.., the next of kin of deceased employees), or worse, seeks to speak for either the living or dead in the absence of an objection.
These and other issues are discussed in more detail in Understanding the Connecticut Freedom of Information Act and Access to Public Meetings and Records, by Mark J. Sommaruga, Esq. For a copy of this book, please click here.