This author wrote previously on the status of sexual harassment investigations under the Freedom of Information Act [”FOIA”]. In a case that has grabbed some notoriety; the Freedom of Information Commission [“FOIC”] has offered further guidance and reminders as to the public nature of sexual harassment complaints.
In Wotjas v. Department of Administrative Services, Town of Stonington, #FIC 2013-558 (July 23, 2014), a citizen requested a copy of a sexual harassment complaint made by a former Town of Stonington employee against the First Selectman, along with any correspondence that the complaining employee had with the Town about her reason for departure. The Town denied the request, asserting (among other things) that the complaining employee had been notified and objected to the disclosure of these records.
After a complaint was filed, the FOIC issued a decision ordering disclosure of the requested documents. The FOIC rejected the Town’s claim that the requested records were exempt from disclosure pursuant to Connecticut General Statutes §1-210(b)(2), which provides that disclosure is not required of “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.” The FOIC rejected an assertion that a privacy right for the First Selectman existed in light of the unsubstantiated nature of the allegations, and concluded that there is a legitimate public interest in the behavior of public officials in relation to public employees, whether or not reasonable minds might differ as to whether such behavior constitutes harassment. More interestingly or ominously, the FOIC concluded that the fact that allegations were not substantiated, “particularly where the investigating agency takes few steps to ascertain whether the allegations may be corroborated,” does not mean that there is no legitimate public interest in the facts of the complaint. The FOIC cited to prior Supreme Court decisions (see Rocque v. FOIC, 255 Conn. 651, 665 (2001), and noted that there was a separate legitimate public interest in the fairness of the investigation leading to that exoneration in general and in how town officials investigate complaints, in terms of (among other things) the questioning of witnesses and treatment of complainants.
The FOIC further noted that nothing in the requested records revealed sexually explicit or descriptive information, such as allegations of sexual contact or improprieties, or details of intimate personal relationships, that would lead to concerns for avoiding privacy and “offensiveness” concerns. However, the FOIC agreed that there was no legitimate public interest in disclosing the name of the sexual harassment complainant in this case, and that disclosing the name would be highly offensive to a reasonable person. Although the complaining employee’s name was already known to the requester, and although the identity of the alleged victim in a harassment complaint is NOT always exempt from disclosure, the FOIC in its discretion declined to further publicize her identity by naming her in its decision or ordering disclosure of her name. The FOIC ordered disclosure of the records free of charge to the requester, with redaction of the name of the complaining employee.
WHY DOES THIS CASE MATTER?
This case provides additional reminders and red flags for public employers in both the conduct of sexual harassment complaints and the disclosure of related records. First of all, for better or worse, public employees AND employers must realize that most of the time, complaints of misconduct will be subject to disclosure regardless of whether the complaints are “true.” Second, employers should realize that the public eyes will be on them when performing an investigation of sexual harassment. Indeed, the caustic comment of the FOIC that disclosure of unsubstantiated complaints is warranted particularly where the “investigating agency takes few steps to ascertain whether the allegations may be corroborated” is a reminder that there may not only be consequences in the employment litigation sphere from not conducting a thorough investigation of complaints, but also in the important “court of public opinion.” Finally, as stated in the prior blog post on the Greenwich case, guarantees of confidentiality in an investigation are risky; indeed, although likely, it is not always guaranteed that the name of the accuser can be kept out of the public eye.