Must a Connecticut agency notify employees when an FOI request seeks many home addresses?

Plain-English summary

In April 1998, Connecticut’s AG advised the state comptroller that a broad Freedom of Information Act request for employee home addresses generally required notice to the affected employees. A new statute expressly protected addresses of certain safety-sensitive workers, but the AG said other employees might still establish a privacy interest. With a request spanning an entire staff, the agency could reasonably believe at least some addresses implicated privacy and should give notice so individuals could object.

The opinion separated notice from the ultimate disclosure decision. An employee who objected carried the burden of showing a valid privacy basis. The agency was not to judge the validity of the objection itself; the Freedom of Information Commission had that role under the cited procedure. After receiving a timely objection, the agency could not release the address unless the commission ordered it. The requester’s identity usually did not affect the agency’s response, though a known threat could be relevant to the privacy assessment.

The AG suggested a way to reduce repeated mass notices: in an initial written notice, ask employees whether they would object to future address disclosures and tell them to obtain advice on the governing standards. For employees who did not object, the agency could generally treat a later request differently absent unusual circumstances. The opinion did not say every employee address was permanently confidential.

Employees at the time

Notice allowed an employee to present a fact-specific privacy objection. Protection beyond the safety-sensitive categories was possible but not automatic.

Records officers at the time

The agency had to send notice when it reasonably believed disclosure might invade privacy, then follow the statutory objection procedure. It could ask employees in advance about future requests.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did only safety-sensitive employees qualify for notice?
A: No. The AG said other employees could also have a privacy basis for withholding an address.

Q: Could the agency reject an employee’s objection on its own?
A: No. The opinion assigned review of the objection’s validity to the Freedom of Information Commission.

Q: Did the opinion ban all address disclosures?
A: No. It addressed notice and the process for deciding whether a particular address could be released.

Background and statutory framework

The comptroller asked whether changes after a 1994 AG opinion altered notice duties for large address requests. The AG read §§ 1-20a and 1-20f with the privacy exemption and relevant court decisions, and retained the general notice rule.

Citations and references

Statutes: Conn. Gen. Stat. § 1-20f; Conn. Gen. Stat. § 1-20a.

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Opinion page: https://portal.ct.gov/ag/opinions/1998-formal-opinions/honorable-nancy-wyman-office-of-the-state-comptroller-1998004-formal-opinion-attorney-general-of-con

Original opinion text

Honorable Nancy Wyman, Office of the State Comptroller, 1998-004 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General Richard Blumenthal

April 15, 1998

Honorable Nancy Wyman

Office of the State Comptroller

55 Elm Street

Hartford, CT 06106

Dear Ms. Wyman:

This is in response to your December 2, 1997 request for an opinion regarding the status of state employee home addresses under the state Freedom of Information Act ("FOI Act" or "Act"), Conn. Gen. Stat. § 1-7, et seq. Your primary question is whether the FOI Act requires your agency to notify state employees in response to broad requests for the home addresses of large numbers of employees, such as those of an entire agency staff. As you correctly note, while we answered your predecessor's question on this issue in the affirmative (see, 1994 Conn. Atty. Gen. Op., October 11, 1994), our earlier opinion preceded the enactment of Conn. Gen. Stat. § 1-20f, which expressly shields from disclosure the home addresses of several categories of "safety sensitive" employees. Notwithstanding § 1-20f and the Superior Court's recent decision in Youngquist v. Freedom of Information Commission, Doc. No. CV95-0554601 S (February 18, 1997, McWeeny, J), our previous opinion is still valid and, as a general matter, you must notify all state employees who will be affected by a broad request for home addresses under the Act. You can, however, avoid repeated notification to the same employees by asking in the first notice whether they object to a future disclosure of their addresses.

The statutory framework has not changed since our earlier opinion, and neither of our appellate courts has decided a case on the issue of employee home addresses in the interim. Conn. Gen. Stat. § 1-19(b)(2) continues to exempt from disclosure those documents contained in "personnel ... files ... the disclosure of which [documents] would constitute an invasion of personal privacy." And Conn. Gen. Stat. § 1-20a requires that an agency notify employees (and any collective bargaining representative) whenever it reasonably believes that compliance with an FOI Act request would result in an invasion of their privacy. The enactment of Conn. Gen. Stat. § 1-20f is the only relevant statutory change since our earlier opinion and there is nothing in the statute or its legislative history to indicate that individuals covered by that provision comprise the entire universe of state employees who might have a legitimate expectation of privacy in their home addresses, so that other employees necessarily are not entitled to notice of a request for their addresses. Additionally, as noted in our earlier opinion, when your office is presented with a broad request for large numbers of employee addresses there may be no practical way to know whether disclosure of a given home address would result in an invasion of an individual employee's right to privacy. However, it would be reasonable for your office to believe that a broad-based disclosure would constitute an invasion of the privacy of at least one or more of the employees involved. In such circumstances, therefore, all employees who are the subject of the request would be entitled to notice so that they might have the opportunity to demonstrate that release of their addresses would violate their rights to privacy.1

West Hartford v. FOIC, 218 Conn. 256 (1991), and Perkins v. FOIC, 228 Conn. 158 (1993), discussed in our earlier opinion, remain the only state Supreme Court decisions directly relevant to our inquiry. In West Hartford, the Court determined that an employee could avoid disclosure of his home address by demonstrating that he had taken significant steps to keep the address private, evidencing a reasonable expectation of privacy in that address. 218 Conn. at 264-65. The Perkins court, in turn, fashioned a new, general test for § 1-19(b)(2) privacy matters, requiring the employee to show that the information requested is not a legitimate matter of public concern and that it would be highly offensive to a reasonable person to release the information. 228 Conn. at 175. Although Perkins did not expressly overrule West Hartford, at least one Superior Court judge has determined that an employee can no longer prevail simply by demonstrating that he took significant steps to shield his address. See Youngquist, supra. Nevertheless, an employee whose address is not otherwise protected by § 1-20f may still be able to satisfy his burden under § 1-19(b)(2) by demonstrating that the address is not a legitimate matter of public concern and that it would be highly offensive to a reasonable person for it to be released. See Perkins, at 175. This remains a fact-based inquiry because no case law or statutory change has altered the relevant legal landscape since our 1994 opinion. Indeed, even in Youngquist, Judge McWeeny suggested that an employee could satisfy the two-part Perkins test if the individual could demonstrate an objective, factual basis for keeping his address confidential. Id., 7, at n.3. An employee might meet this burden, for example, if he is married to an individual whose address is subject to § 1-20f, so that release of the address would violate the privacy rights of the spouse employed in the safety-sensitive position. Or, the employee may have received threats or experienced other circumstances justifying having his address kept confidential under the Perkins test. Moreover, if one of our appellate courts disagrees with the Youngquist decision as to the continuing import of West Hartford, employees could be entitled to home address privacy by virtue of having taken significant steps to insulate their addresses from the public domain. Consequently, neither Perkins, Youngquist, nor § 1-20f obviates the need for your agency to notify affected employees of a request for home addresses absent specific knowledge that a given employee has not treated his address as private.

In your letter, you also express practical and logistical concerns about sitting in judgment on the legitimacy of employee objections to address requests. However, you should note that § 1-20a(c) expressly prohibits your agency from determining the validity of employee objections, and places sole responsibility for such review with the Freedom of Information Commission (the "FOIC"). Pursuant to the statutory scheme, once an agency forms a reasonable belief that a privacy interest exists, furnishes appropriate notice to the employee, and receives an objection to disclosure on a form provided by the agency, then that agency may not disclose the information unless ordered to do so by the FOIC. Conn. Gen. Stat. § 1-20a(b), (c). Regardless of what standard applies -- Perkins, West Hartford or both -- the employee ultimately bears the burden of establishing the propriety of his objection, because only the employee can demonstrate his own privacy expectations. In addition, you have asked whether your agency should consider the identity of a person seeking home address information when responding to the request. In general, the answer is no. Nothing in the FOI Act indicates that the requester's identity should influence the agency's response. Moreover, once the agency notifies the employee about the request, the employee stands in a better position to determine whether the requester's identity bears any relevance to disclosure of personal information. See, e.g., Youngquist, 7, at n.3 (threat or harassment of an employee could provide objective basis for shielding home address). However, in certain circumstances, such as knowledge of a requester's articulated threat against a particular employee or class of employees, the requester's identity could prove relevant to the agency's task.

Finally, you have asked whether an alternative exists to re-notifying every state employee in response to each general request for employee home addresses. The short answer is yes. While you may have to give notice to all employees initially subject to a request, you may be able to reduce the number of employees whom you must notify in response to subsequent or concurrent requests by asking employees to state in advance whether they object to future disclosures of their addresses. This is also a question you can ask new employees when they begin employment. Any such inquiry should be in writing and accompanied by an unqualified recommendation that the employee ascertain (and stay apprised of) the appropriate legal privacy standards, preferably by way of an attorney or union representative, before making an election. The inquiry should also inform the employee that he must defend his objection before the FOI Commission and the courts. With respect to employees who do not so object, your office can make a reasonable determination in the future that they lack an expectation of privacy in their home addresses, absent unusual circumstances attendant to a specific request.

Very truly yours,

RICHARD BLUMENTHAL

ATTORNEY GENERAL

Christopher L. Levesque

Assistant Attorney General

RB/CLL/db

Footnote:

1 As before, if an agency knows that an employee does not consider his address a private matter, then absent unusual circumstances, the agency may release the address without notifying the employee.