State upholds release of sick leave records in first case to consider 'personal privacy'

CONNECTICUT — The state Supreme Court ruled in late December that disclosure of a school psychologist’s sick leave records was appropriate under the state Freedom of Information Act. The decision is the court’s first to comprehensively define the statutory exception for invasion of personal privacy.

The invasion of personal privacy exception precludes disclosure of information “only when the information sought by a request does not pertain to legitimate matters of public concern and is highly offensive to a reasonable person.” The court formulated this standard after a discussion of the “close and compelling” analogy between the FOI Act’s privacy exception and the common law tort of invasion of privacy.

Applying this new standard to the case at hand, the court reasoned that the school psychologist could not possibly prove that disclosure of the numerical data in her sick leave records would be highly offensive to a reasonable person, so she could not invoke the exception to disclosure.

Further, the court noted that public employees are servants of and accountable to the public, and as a result have a diminished expectation of privacy.

A concurring justice opposed the adoption of the new definition for personal privacy as not well adapted to the interests of the FOI Act. Rather he would continue to decide personal privacy issues on a case by case basis under a general objective standard of reasonableness.

The case stemmed from a June 1991 FOI request by the New Fairfield Taxpayers Association and the subsequent denial by the school superintendent. The Freedom of Information Commission ordered disclosure of the records, and the psychologist whose records were sought appealed to the superior court in Hartford.

The superior court ruled in favor of Perkins, deciding on its own that the requestor had failed to identify the records that he sought to inspect, thus depriving the FOIC of authority to find a FOI Act violation. The Supreme Court also decided this second issue on the form of the request, finding the superior court’s ruling overly formal and legalistic. “A talismanic insistence on the use of the word ‘record’ would be inconsistent with the spirit and the policy of the FOIA,” the court said.

(Perkins v. Freedom of Information Commission; FOIC Counsel: Mitchell W. Pearlman, Hartford)