Director, Retirement & Benefits Services Division v. Freedom of Information Commission (concurring)
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** ZARELLA, J., concurring. I concur in the result reached by the majority. Nevertheless, I write separately to express my view that this case demonstrates the need to revisit and reconsider the standard for determining when an invasion of privacy occurs for purposes of General Statutes § 1-210 (b) (2). The existing standard is set forth in Perkins v. Freedom of Information Commission, 228 Conn. 158, 635 A.2d 783 (1993), in which this court stated that the invasion of personal privacy exception of [General Statutes (Rev. to 1993)] § 1-19 (b) (2) [now codified at General Statutes § 1-213 (b) (2)] precludes disclosure . . . 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. Id., 175. Thus, under Perkins, we adopted an objective tort standard in defining invasion of privacy. The second prong of this standard is not concerned with whether the individual official or employee is highly offended by the disclosure, but, rather, whether a reasonable person in similar circumstances would be highly offended. In West Hartford v. Freedom of Information Commission, 218 Conn. 256, 588 A.2d 1368 (1991), this court opined that the home addresses of retired town employ- ees were proper subjects for disclosure under the Freedom of Information Act unless the town employees through significant [effort], ha[d] made a conscious attempt to insulate their addresses from the public domain. Id., 264. The court in West Hartford considered a person s reasonable expectation of privacy and the potential for embarrassment as significant factors in determining if disclosure [of public records] would constitute an invasion of privacy. (Internal quotation marks omitted.) Id., 263. Thus, in determining whether the disclosure would amount to an invasion of privacy under § 1-19 (b) (2), the court applied a hybrid (subjective and objective) standard that considers: (1) whether the employee subjectively has demonstrated an expectation of privacy; and (2) whether that expectation of privacy is objectively reasonable. This is in contrast to the purely objective standard of whether a reasonable person would be highly offended by the disclosure as set forth in Perkins. In the present case, the majority states that [t]he analysis employed in West Hartford is relevant to the claim that significant efforts taken by a public employee to keep certain information private bears on the court s determination of whether the information constitutes a legitimate matter of public concern and is highly offensive to a reasonable person. In an effort to reconcile the hybrid standard employed in West Hartford with the objective standard of Perkins, the majority states: We recognize that requiring disclosure of the information requested in this case by employees who have made no effort to protect it would not be highly offensive to a reasonable person. The standard that is applied, however, is different for employees who took significant and repeated steps to maintain the privacy of their addresses. In this case, the standard under Perkins is whether it is highly offensive to require disclosure of the addresses of employees who take significant measures to protect private information from being disclosed. This test does not rely on the five employees subjective desires for privacy as enunciated by the trial court, but, rather, more precisely, establishes a test that makes an objective assessment of the public availability of the information based on the employee s specific efforts to maintain privacy. There was no evidence in the record, however, to suggest that the five employees who had taken such steps did so because of any different objective concerns for security than those of the employees who had not taken steps. Rather than consider whether a reasonable person would have found the disclosure of the information highly offensive, the majority relies on the subjective concerns of the employees who took steps to keep the information private. The majority correctly notes that none of the parties has asked this court to reconsider the precedent estab- lished in Perkins. Thus, this court is under no obligation to do so. Rather than wait for another day as the majority suggests, however; footnote 13 of the majority opinion; I would have requested briefs and argument on whether Perkins should be overruled and, if so, what standard should apply. Failing that course, however, I join in the court s implied invitation to reconsider Perkins in a future case.
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