Opinion
No. CV07 404 47 48 S
August 15, 2008
MEMORANDUM OF DECISION
I. NATURE OF THE PROCEEDINGS
This is an administrative appeal from a decision of the Freedom of Information Commission brought pursuant to Conn. Gen. Stat. §§ 1-206(d) and 4-183(c). The plaintiff seeks review of the decision by the FOIC in its contested case, Docket #FIC 2006-343, Stephanie Reitz and The Associated Press v. Commissioner, State of Connecticut, Department of Correction, based upon the allegations of error set forth in plaintiff James Tillman's appeal dated July 17, 2007.
II. STATEMENT OF FACTS
The parties all agree that the defendant Department of Correction ("DOC") declined on July 7, 2007, to furnish Stephanie Reitz and the Associated Press with copies of the correctional history and related discipline information concerning James Calvin Tillman. All parties agree that on July 11, 2006, based on new DNA tests, the charges against Mr. Tillman were dismissed, after he had been wrongfully incarcerated for more than 18 years.
This Court accepts the plaintiff's statements of facts as set forth in their three briefs dated December 3, 2006 (James Tillman's brief, section entitled "Background," pp. 3-6; Commissioner's brief, section entitled "Background and Procedural History of the case," pp. 2-4; and the Chief Public Defender's brief; section entitled "Statement of Facts," pp. 307).
While there are a variety of legal questions in this case, a principal question presented is whether the term "safety risk, including risk of harm to any person . . .," as utilized in Conn. Gen. Stat. § 1-201(b)(18), includes only physical harm, as the FOIC maintains or also psychological harm, as the plaintiff maintains.
III. POINTS AND AUTHORITIES
The phrase "risk of harm" in General Statutes § 1-210(b)(18) does not include the risk of an exonerated former inmate suffering psychological harm not related to prison safety or security.
A. Standard of Review
The standard of review applied to questions of statutory construction in appeals under General Statutes § 4-183 has been clarified in recent years. "Ordinarily, [the] court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry statute's purposes . . . [W]hen a state agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law . . . If, however, a governmental agency's `time-tested' interpretation of a statute is reasonable, that interpretation should be accorded great weight by the courts." (Citations omitted; internal quotation marks omitted.) Office of Consumer Counsel v. Dept. of Public Utility Control, 252 Conn. 115, 120-21, 742 A.2d 1257 (2000).
The Connecticut Supreme Court has now clarified "the proper standard to apply in determining when agency deference is appropriate . . . [A]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . [T]he traditional deference accorded to an agency's interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] . . . a governmental agency's time-tested interpretation . . . Consequently, an agency's interpretation of a statute is accorded deference when the agency's interpretation has been formally articulated and applied for an extended period of time, and that interpretation is reasonable." (Citations omitted; internal quotation marks omitted.) Longley v. State Employees Retirement Commission, 284 Conn. 149, 163-64, 931 A.2d 890 (2007).
In accordance with this standard, the appellate courts of this state have declined to defer to the freedom of information commission (FOIC) on questions involving the interpretation of the freedom of information act, General Statutes § 1-200 et seq., when the questions raised have not previously been subject to judicial scrutiny or to a time-tested agency construction. Under those circumstances, the courts have reviewed the issues under a "plenary" or "de novo" standard. See, e.g., Clerk of the Superior Court v. Freedom of Information Commission, 278 Conn. 28, 36-37, 895 A.2d 743 (2006) (whether certain judicial branch records constituted public records within meaning of General Statutes §§ 1-200(5) and 1-210(a) was question of law subject to de novo review by court, where court had not previously considered applicability of statutes to particular type of records); Williams v. Freedom of Information Commission, 108 Conn.App. 471, 475-78, 948 A.2d 1058 (2008) (meaning of words "certifying" and "page" as used in freedom of information act presented question of law subject to plenary review by court because terms had "not been subjected to judicial scrutiny and have not been time tested by the agency consistently over a long period of time").
A review of case law and the decisions of the FOIC reveals that the phrase "risk of harm," as used in General Statutes § 1-210(b)(18), and specifically the question of whether that phrase extends to purely psychological harm that is unrelated to prison safety and security, has not been subjected to judicial scrutiny or time-tested agency interpretation. The meaning of that phrase presents a question of law for this court to determine without giving deference to the FOIC's interpretation.
B. Statutory Construction of § 1-210(b)(18)
In the present case, the plaintiff, James Tillman, and the defendant Commissioner of Correction (commissioner) both argue that § 1-210(b)(18) exempts public records from disclosure if the commissioner has reasonable grounds to believe that disclosure would result in a risk of harm to any person, including a risk of causing psychological harm to any person, including a former inmate, even when that harm is unrelated in any way to prison safety or security. The FOIC, on the other hand, argues that the statute permits the commissioner to consider only the risk of physical harm, and not psychological harm. For the reasons set forth below, § 1-210(b)(18) does not exempt public records from disclosure where the commissioner has reasonable grounds to believe only that the disclosure might cause purely psychological harm unrelated to any issues of prison safety and security.
For that reason, the Court need not determine whether the commissioner hypothetically ever could consider a risk of psychological harm as a basis for exempting records from disclosure.
"The principles that govern statutory construction are well established. When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs the Court first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, the Court also looks for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . ." (Internal quotation marks omitted.) Friezo v. Friezo, 281 Conn. 166, 181-82, 914 A.2d 533 (2007).
"[I]t must be noted initially that there is an overarching policy underlying the [freedom of information act] favoring the disclosure of public records . . . [I]t is well established that the general rule under the [act] is disclosure, and any exception to that rule will be narrowly construed in light of the general policy of openness expressed in the . . . legislation [comprising the act] . . . The burden of establishing the applicability of an exemption clearly rests upon the party claiming the exemption . . . This burden requires the claimant of the exemption to provide more than conclusory language, generalized allegations or mere arguments of counsel. Rather, a sufficiently detailed record must reflect the reasons why an exemption applies to the materials requested." Director, Retirement Benefits Services Division v. Freedom of Information Commission, 256 Conn. 764, 772-73, 775 A.2d 981 (2001).
This court begins its analysis by examining the text of the statute itself and its relationship to other statutes. Section 1-210(b) provides in relevant part: "Nothing in the Freedom of Information Act shall be construed to require disclosure of . . . (18) Records, the disclosure of which the Commissioner of Correction . . . has reasonable grounds to believe may result in a safety risk, including the risk of harm to any person or the risk of an escape from, or a disorder in, a correctional institution or facility under the supervision of the Department of Correction . . . Such records shall include, but are not limited to:
(A) Security manuals, including emergency plans contained or referred to in such security manuals;
(B) Engineering and architectural drawings of correctional institutions or facilities.
(C) Operational specifications of security systems utilized by the Department of Correction at any correctional institution or facility . . . except that a general description of any such security system and the cost and quality of such system may be disclosed;
(D) Training manuals prepared for correctional institutions and facilities . . . that describe, in any manner, security procedures, emergency plans or security equipment;
(E) Internal security audits of correctional institutions and facilities . . .
(F) Minutes or recordings of staff meetings of the Department of Correction . . . or portions of such minutes or recordings, that contain or reveal information relating to security or other records otherwise exempt from disclosure under this subdivision;
(G) Logs or other documents that contain information on the movement or assignment of inmates or staff at correctional institutions or facilities; and
(H) Records that contain information on contacts between inmates, as defined in section 18-84, and law enforcement officers . . .
The issue before this Court is whether the phase "risk of harm to any person" includes the risk of purely psychological harm resulting to a former inmate as a direct result of the release of records, where the risk of harm is unrelated to prison safety or security. The statute does not provide a definition for the word "harm." Dictionary definitions are broad enough to encompass psychological harm. As a legal term, "harm" is defined broadly as "[t]he existence of loss or detriment in fact of any kind to a person resulting from any cause." (Emphasis added.) Black's Law Dictionary (Abridged 5th Ed. 1983). Likewise, in common usage, "harm" means "[p]hysical or psychological injury or damage." (Emphasis added.) American Heritage Dictionary of the English Language (3d Ed. 1992).
While the word "harm" has a very broad meaning in the abstract, this Court must determine whether the remaining language of the statute narrows its meaning. See Ciglio v. American Economy Ins. Co., 278 Conn. 794, 805-06, 900 A.2d 27 (2006). To ascertain the legislative intent, the court cannot limit itself to examining words or sentences in isolation; "the whole statute must be considered." (Internal quotation marks omitted.) Historic District Commission v. Hall, 282 Conn. 672, 684, 923 A.2d 726 (2007). "Assistance in ascertaining the legislative intent is afforded by resort to the familiar maxim of noscitur a sociis. Through use of this aid the meaning of a word or a particular set of words in a statute may be indicated, controlled or made clear by the words with which it is associated, in a manner somewhat similar in application to the more familiar doctrine of in pari materia. 2A Sutherland, Statutory Construction, (4th ed. 1973) § 47.16 at 101." (Internal quotation marks omitted.) State v. Roque, 190 Conn. 143, 152, 460 A.2d 26 (1983).
Section 1-210(b)(18) applies to "[r]ecords, the disclosure of which the Commissioner of Correction . . . has reasonable grounds to believe may result in a safety risk, including the risk of harm to any person . . ." (Emphasis added.) By the plain language of the statute, then, "the risk of harm to any person" is a type or example of "a safety risk." The word "harm," as used in the statute, therefore, cannot be interpreted to encompass every conceivable type of harm, but only those types of harm that could fairly be considered safety risks. The subsection also includes within the category of "safety risk," "the risk of an escape from, or a disorder in, a correctional institution or facility." Furthermore, the types of records that are listed in the subsection, such as "[s]ecurity manuals," "[e]ngineening and architectural drawings of correctional institutions," and "[o]perational specifications of security systems utilized by the Department of Correction," are all types of records that, if released, might be used to compromise the security of prisons as well as the safety of inmates and department of correction employees.
Accordingly, the subsection, when read as a whole, appears to be intended to give the commissioner the authority to withhold records that the commissioner has reasonable grounds to believe may be used in a way that would jeopardize the safety and security of correctional institutions and persons involved with those institutions, including inmates and department of correction personnel. The subsection also clearly contemplates, by its plain language, that the risks associated with the release of certain records may include the risk of a prison escape or disorder in a prison. Thus, the commissioner has the power to consider the risk to "any person," including the general public, that could potentially be harmed by such risks. A purely psychological harm to an exonerated former inmate no longer within the custody or jurisdiction of the commissioner, however, where that psychological harm is in no way related to any issues of prison safety or security, are beyond the scope of the exemption.
This conclusion is consistent with the duties of the commissioner as set forth in General Statutes § 18-81. Pursuant to that section, the commissioner "shall be responsible for the overall supervision and direction of all institutions, facilities and activities of the department [of correction]." While the commissioner is charged under § 18-81 with "the supervision of persons released on parole by the Board of Pardons and Paroles," the commissioner's duties under that section do not extend to providing for the general well being, psychological or otherwise, of former inmates not on parole, including inmates that have been exonerated. It is difficult to see, then, why the legislature would place the commissioner in the position of determining whether the release of a particular record might have a negative psychological impact on any former inmates not on parole, not to mention members of the general public who have never been within the jurisdiction or supervision of the commissioner. It is more reasonable to read § 1-210(b)(18) more narrowly, as exempting records from disclosure where the commissioner has reasonable grounds to believe that the availability of the records would compromise the safety or security of prisons, thus subjecting persons to a risk of harm. Such a reading avoids the unreasonable result of empowering the commissioner to police the psychological well being of persons no longer within his jurisdiction and even members of the general public. See, e.g., Willow Springs Condominium Ass'n., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 30-31, 717 A.2d 77 (1998) ("We must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve . . . It is also a rule of statutory construction that those who promulgate statutes or rules do not intend to promulgate statutes or rules that lead to absurd consequences or bizarre results").
Moreover, § 18-81 certainly does not confer on the commissioner a general power to police the psychological well being of the general public.
Finally, the legislative history of the exemption set forth in § 1-210(b)(18) lends strong support to the conclusion that the statute should not be read to apply to cases of psychological harm unrelated to issues of prison safety and security. Subsection (b)(18) was added to § 1-210 by number 99-156 of the 1999 Public Acts. The same public act also created § 1-210(c), which provides that any public agency receiving a freedom of information request from an inmate must notify the commissioner, and that the commissioner shall determine whether the requested record should be withheld pursuant to § 1-210(b)(18).
In moving for adoption of the bill, Representative Alex Knopp stated: "[T]he purpose of this bill is to exempt certain records from disclosure from the freedom of information act that might pose a security or a safety threat to employees or inmates at a correctional facility. [M]ost inmates requesting information under the [freedom of information] act are doing so for appropriate reasons. However, there are a few who will be using the . . . act to obtain information that can pose a security or a safety threat. For example, there are inmates who have requested typographical maps of correctional facilities that have been provided and then were discovered through a cell search. There have been inmates with a history of sexual assault who would request a paid list of correctional officers' home addresses. There are inmates who request police reports and incident reports who might threaten other inmates who had been involved with gangs or as informants who are in protective custody placement . . . [T]his bill will attempt to bring an exemption for public records that do involve some kind of security threat or harm that could involve the risk of an escape or disorder or such other kind of threat." (Emphasis added.) 42 H.R. Proc., Pt. 9, 1999 Sess., pp. 3104-05.
Other legislators' comments were consistent with Knopp's. Representative Ronald San Angelo stated that the bill "goes a long way in protecting correction officers, and frankly the people of Connecticut from . . . inmates . . . getting records or information that might help them escape or do a variety of things that might put people at jeopardy." 42 H.R. Proc., supra, p. 3107. Senator John Kissel, one of the bill's sponsors, described its provisions as follows: "Any request by a prisoner may, within the department of correction, obviously would be reviewed by the department of correction. Any request made by anyone else to the department of correction, would be reviewed by the department of corrections with those items [subsections (A) through (H) or § 1-210(b)(18)] in mind that Senator Bozek listed, a laundry list. And if there was anything that the commissioner felt specifically went to the security of the facility, the inmates or the officers, the commissioner could exercise his jurisdiction and deny the request for information." (Emphasis added.) 42 S. Proc., Pt. 8, 1999 Sess., p. 2782. Notably absent from the legislative history is any indication of an intent to exempt records the release of which might result in a person suffering psychological distress unrelated to prison safety or security.
The "risk of harm to any person" referenced in § 1-210(b)(18) does not include the risk of purely psychological harm resulting from the release of records that do not implicate the security or safety of a correctional institution or facility.
IV. The records at issue are records the disclosure of which would constitute an invasion of an exonerated former inmate's personal privacy pursuant to General Statutes § 1-210(b)(2). A. Standard of Review CT Page 13662 The standard of review to be applied in cases involving § 1-210(b)(2) is not entirely clear. The Supreme Court has stated that the construction and interpretation of § 1-210(b)(2) and the legal standards to be applied thereunder are issues of law subject to de novo review; Director, Retirement Benefits Services Division v. Freedom of Information Commission, supra, 256 Conn. 772; and that where the "case involves applying the well settled meaning of § 1-210(b)(2) to the facts of [a] particular case . . . [t]he appropriate standard of judicial review . . . is whether the [FOIC's] factual determinations are reasonably supported by substantial evidence in the record taken as a whole." Rocque v. Freedom of Information Commission, 255 Conn. 651, 659-60, 774 A.2d 957 (2001). In Director, Retirement Benefits Services Division v. Freedom of Information Commission, supra, 256 Conn. 764, however, the Supreme Court, after having resolved certain questions regarding the construction and interpretation of § 1-210(b)(2), went on to apply the statutory provision to the facts of the case. See id., 779-83. In doing so, it reversed the judgment of the trial court, which had upheld the FOIC's decision ordering the release of the requested information. Id., 783. Yet, it did so apparently without giving any deference to the FOIC's decision. See generally id.This apparent contradiction is resolved, however, by case law stating that in administrative appeals, the court may decide issues as a matter of law when there are no underlying factual or credibility issues in dispute and the legal test to be applied to those facts is an objective one. See Salmon v. Dept. of Public Health Addiction Services, 259 Conn. 288, 304, 788 A.2d 1199 (2002); Adriani v. Commission on Human Rights Opportunities, 220 Conn. 307, 329 n. 21, 596 A.2d 426 (1991). In the present case, the facts underlying the application of § 1-210(b)(2) are undisputed, and the legal test to be applied is an objective one. See Perkins v. Freedom of Information Commission, 228 Conn. 158, 175, 635 A.2d 783 (1998). The court must determine the applicability of § 1-210(b)(2) to those facts as a matter of law.
B. Legal Standard for Personal Privacy Exemption Under § 1-210(b)(2)
General Statutes § 1-210(b) provides in relevant part: "Nothing in the Freedom of Information Act shall be construed to require disclosure of . . . (2) Personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . ." "When the claim for exemption involves § [1-210(b)(2)], [t]he plaintiffs must meet a twofold burden of proof . . . First, they must establish that the files in question are within the categories of files protected by the exemption, that is, personnel, medical or similar files. Second, they must show that disclosure of the records would constitute an invasion of personal privacy." (Internal quotation marks omitted.) Perkins v. Freedom of Information Commission, supra, 228 Conn. 168. In the present case, the parties are in agreement that the records at issue come within the category of "[p]ersonnel or medical files and similar files . . ." This Court must only address whether disclosure of the records would constitute an invasion of Tillman's personal privacy.
In Perkins v. Freedom of Information Commission, supra, 228 Conn. 158, our Supreme Court for the first time provided a definition of the phrase "invasion of personal privacy" as set forth in § 1-210(b)(2). Id., 169. The court determined that because the legislature had not provided any express statutory guidance on the meaning of that phrase, it was appropriate "to inquire whether this phrase is a legal term of art that has acquired a peculiar and appropriate meaning in the law so to require it to be construed and understood accordingly." (Internal quotation marks omitted.) Id. In conducting this inquiry, the court looked to the common law and stated: "Although the precise definition of a right to privacy varies with the particular context in which the right has been recognized, the statutory exemption finds its most persuasive common-law counterpart in the tort of invasion of privacy, particularly in that aspect of the tort of invasion of privacy that provides a remedy for unreasonable publicity given to a person's private life." Id., 170-71.
The Supreme Court concluded that the exemption under § 1-210(b)(2) should be governed by Section 652D of the Restatement (Second) of Torts, which "defines a tort action for the invasion of personal privacy as being triggered by public disclosure of any matter that `(a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.'" Id., 172. The court also looked to the commentary accompanying that section of the Restatement for guidance: "Comment (b) of § 652D describes the types of personal and private information that are given protection under the law of torts: `Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man's life in his home, and some of his past history that he would rather forget. When these intimate details of his life are spread before the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of his privacy, unless the matter is one of legitimate public interest.' 3 Restatement (Second), Torts § 652D, comment b (1977)." Perkins v. Freedom of Information Commission, supra, 228 Conn. 172-73.
Nevertheless, "not all personal and private information is protected from public disclosure: `The rule state in [§ 652D] gives protection only against unreasonable publicity, of a kind highly offensive to the ordinary reasonable [person]. The protection afforded to the plaintiff's interest in his privacy must be relative to the customs of the time and place, to the occupation of the plaintiff and to the habits of his neighbors and fellow citizens. Complete privacy does not exist in this world except in a desert, and anyone who is not a hermit must expect and endure the ordinary incidents of the community life of which he is a part . . . Even minor and moderate annoyance . . . is not sufficient to give him a cause of action under the rule stated in this Section. It is only when the publicity given to him is such that a reasonable person would feel justified in feeling seriously aggrieved by it, that the cause of action arises.' Finally, the Restatement recognizes that there is no invasion of a right to privacy when the subject matter of the publicity is of legitimate public concern. 3 Restatement (Second), Torts § 652D, comment (d) (1977)." Perkins v. Freedom of Information Commission, supra, 228 Conn. 173.
"Informed by the tort standard, the invasion of personal privacy exception of § [1-210(b)(2)] precludes disclosure, therefore, 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 . . . [A]n objective standard derived from the law of torts affords useful insight into the meaning of the phrase `invasion of personal privacy.' . . . [W]e . . . judg[e] an invasion of personal privacy in terms of the objective common law concept of the `reasonable person.'" Id., 175.
1. Matter of Legitimate Public Concern
In the present case, the FOIC stated that it took "administrative notice of the extensive publicity concerning Mr. Tillman's release from prison, the dismissal of the charges against him, and the compensation offered to him by the State of Connecticut for his wrongful conviction and lengthy incarceration." The FOIC concluded that the "Mr. Tillman is, at the very least, a limited purpose public figure." The FOIC further found "that the requested records bear a logical relationship to the newsworthy story of Mr. Tillman's release from prison." Tillman claims that he is not a limited purpose public figure because he did not inject himself into a particular public controversy, and cites to Jones v. New Haven Register, Inc., 46 Conn.Sup. 634, 763 A.2d 1097 (2000) [ CT Page 13665 26 Conn. L. Rptr. 299], as support.
Tillman's reliance on the Jones decision is misplaced. In Jones, the court, Blue, J., relying on United States Supreme Court case law, defined a limited purpose public figure as including "an individual [who] voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues." (Emphasis added; internal quotation marks omitted.) Id., 643. The commentary to § 652D of the Restatement (Second) of Torts, which, as previously stated, our Supreme Court looks to in defining the scope of § 1-210(b)(2), also indicates that a public figure may be either voluntary or involuntary: "There are . . . individuals who have not sought publicity or consented to it, but through their own conduct or otherwise have become a legitimate subject of public interest. They have, in other words, become `news.' . . . These persons are regarded as properly subject to the public interest, and publishers are permitted to satisfy the curiosity of the public as to its heroes, leaders, villains and victims . . ." 3 Restatement (Second), Torts § 652D, comment (f) (1977). The Court finds that Tillman is an involuntary public figure.
"Permissible publicity to information concerning either voluntary or involuntary public figures is not limited to the particular events that arouse the interest of the public. That interest, once aroused by the event, may legitimately extend, to some reasonable degree, to further information concerning the individual and to facts about him, which are not public and which, in the case of one who had not become a public figure, would be regarded as an invasion of his purely private life. Thus the life history of one accused of murder, together with such heretofore private facts as may throw some light upon what kind of person he is, his possible guilt or innocence, or his reasons for committing the crime, are a matter of legitimate public interest." 3 Restatement (Second), Torts § 652D, comment (h) (1977).
"The extent of the authority to make public private facts is not, however, unlimited . . . In determining what is a matter of legitimate public interest, account must be taken of the customs and conventions of the community; and in the last analysis what is proper becomes a matter of the community mores. The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he has no concern. The limitations, in other words, are those of common decency, having due regard to the freedom of the press and its reasonable leeway to choose what it will tell the public, but also due regard to the feelings of the individual and the harm that will be done to him by the exposure. Some reasonable proportion is also to be maintained between the event or activity that makes the individual a public figure and the private facts to which publicity is given. Revelations that may properly be made concerning a murderer or the President of the United States would not be privileged if they were to be made concerning one who is merely injured in an automobile accident." Id.
In the present case, it is undisputed that Tillman served many years in prison for a crime of which he was absolutely innocent, and that his arrest, conviction, imprisonment and subsequent exoneration are the sole sources of his status as an involuntary public figure. The fact that DNA tests had demonstrated Tillman's innocence was well known to the public at the time of the freedom of information request at issue in the present case, as the court already had granted his motion for a new trial on the basis of those test results. As the Restatement commentary makes clear, it is proper, in determining whether the public is entitled to certain information about a public figure, to take into account "the feelings of the individual and the harm that will be done to him by the exposure," and the standard is essentially one of "common decency." Id. This Court concludes that release of the documents in question, which have no bearing on Tillman's guilt or innocence of the offense for which he now has been entirely exonerated, and which reflect on aspects of his life during the time that he was forced to serve a lengthy sentence for a crime that he indisputably did not commit, would constitute an unjustified prying into Tillman's life with which reasonable members of the public would say they have no concern.
The FOIC nevertheless argues that the records should be disclosed because "[t]here is . . . a legitimate public concern in allowing public oversight of the disciplinary practices of [the department of correction] and checking the impetus to abuse prisoners that recurs occasionally in any penal system." The mere hypothetical possibility that the records might reveal such information is not sufficient to justify disclosure. The Supreme Court, in Director, Retirement Benefits Services Division v. Freedom of Information Commission, supra, 256 Conn. 764, specifically rejected such a speculative approach. That case involved a freedom of information request for certain state employees' addresses; the FOIC argued that the addresses were legitimate matters of public concern because they might demonstrate improper hiring practices in the form of favoritism or negative bias. Id., 779-80. In rejecting this argument, the court noted that the FOIC had conceded that there was "nothing in the record to suggest such improper hiring practices." Id., 780. The court further noted that the approach advocated by the FOIC would amount to an inappropriate "rational basis" test that would require disclosure every time "there is any rationally conceivable basis for it that would be of [public] concern." Id.
In the present case, the FOIC's concern about prisoner abuse appears to be a similarly speculative rationale for disclosure of the records. A court may always review the records to determine whether they include anything that would suggest prisoner abuse.
2. Highly Offensive to Reasonable Person
Since these records do not relate to a matter of legitimate public concern, the court also finds that the disclosure of these records would be highly offensive to a reasonable person. See Perkins v. Freedom of Information Commission, supra, 228 Conn. 172. Although the FOIC did not address this point in its decision, it is nonetheless appropriate for the court to address it as a matter of law because it involves the application of an objective standard to the undisputed facts. See Salmon v. Dept. of Public Health Addiction Services, supra, 259 Conn. 304 (where determination "should be made according to an objective standard, there is no need to remand the case to the [administrative agency] for further factual findings"); Perkins v. Freedom of Information Commission, supra, 228 Conn. 175 (court judges invasion of personal privacy in terms of objective common-law concept of reasonable person).
Although the standard for determining whether disclosure of records would be highly offensive to a reasonable person is an objective one, Supreme Court precedent establishes that the question is whether a reasonable person, in the position of the person whose privacy rights are at stake, would find the disclosure highly offensive. Specifically, in Director, Retirement Benefits Services Division v. Freedom of Information Commission, supra, 256 Conn. 764, the records at issue were the home addresses of certain state employees. Id., 765. "At the hearing [before the FOIC], it was established that five employees not only had objected to the disclosure of their addresses, but had taken significant steps to keep their addresses private. These efforts included the exclusion of each employee's telephone number and address from telephone directories. Specifically, one employee testified that she refused all junk mail and responded to such mail by requesting that her name be removed from all mailing lists. Another employee used a post office box as his address, kept his name off mailing lists, and took other security measures as a result of his concern for his personal safety and that of his family. Two employees testified that they had substantial security concerns regarding their addresses based on previous incidents involving their families." Id., 768. Both the FOIC and the trial court concluded that the employees' addresses were not subject to the personal privacy exemption of § 1-210(b)(2). Specifically, the trial court stated that "as the majority of persons freely disclose their addresses, the disclosure of an address is not generally highly offensive to a reasonable person." (Internal quotation marks omitted.) Id., 770.
On appeal, the Supreme Court reversed the judgment, concluding that the trial court had erred in not considering the steps the five employees had taken to keep their addresses private. The court stated: "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 . . . 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." Id., 781-82. The court held that the release of the addresses would be highly offensive to a reasonable person who had taken the kinds of steps the five employees had taken to protect their privacy. Id., 782.
Applying the reasoning of the Supreme Court's decision to the present case, the court's task is not to determine whether disclosure of records of the type at issue would generally be highly offensive to a reasonable person. This is not a case involving a person convicted of a crime who objects to information about his life in prison being made public. On the contrary, the disclosure of such records would be highly offensive to a reasonable person in Tillman's unique position — that is, to an innocent person who has served a lengthy sentence for a serious crime that he indisputably did not commit. In this regard, it is worth noting that our Supreme Court has recognized the definition of "invasion of privacy" as encompassing the "[v]iolation of [the] right which one has to be left alone and unnoticed if he so chooses." (Internal quotation marks omitted.) Perkins v. Freedom of Information Commission, supra, 228 Conn. 171 n. 15, quoting Black's Law Dictionary (6th Ed. 1990). The Court concludes that it would be reasonable for Tillman to be highly offended by the release of these records.
V. The records at issue do not constitute "non-conviction" information subject to disclosure information.
The final issue is whether the records at issue in this case are exempt from disclosure pursuant to General Statutes § 52-142n. This question presents an issue of statutory construction which is subject to plenary or de novo review as previously discussed.
General Statutes § 52-142n provides in relevant part: "Nonconviction information other than erased information may be disclosed only to: (1) Criminal justice agencies in this and other states and the federal government; (2) agencies and persons which require such information to implement a statute or executive order that expressly refers to criminal conduct; (3) agencies or persons authorized by a court order, statute or decisional law to receive criminal history record information." The statute thus prohibits the disclosure of "nonconviction information" except under certain circumstances would not apply in the present case. The question before this Court, therefore, is whether the records at issue constitute "nonconviction information."
"Nonconviction information" is defined in General Statutes § 54-142g(e) as "(1) criminal history record information that has been `erased' pursuant to section 54-142a; (2) information relating to persons granted youthful offender status; (3) continuances which are more than thirteen months old." Tillman argues that because the phrase "[n]onconviction information other than erased information" in § 54-142n clearly implies that not all nonconviction information is "erased information," the FOIC improperly concluded that, because the records in this case had not been erased, they did not constitute nonconviction information. While Tillman is correct that not all nonconviction information is information that has been erased, § 54-142g(e) clearly sets forth the other two categories of nonconviction information, namely, "information relating to persons granted youthful offender status" and "continuances which are more than thirteen months old." There is no claim, nor could there be, that the information in the present case falls into either of those categories. The information requested in this case had not been erased at the time of the request. The FOIC correctly concluded that the records in this case did not constitute "nonconviction information" subject to the disclosure limitations set forth in § 54-142n.
The decision of the Freedom of Information Commission is reversed and judgment shall enter for the plaintiff, James Tillman.