Don't Make Promises That You Cannot Keep: Greenwich Silver Shield Association v. Town of Greenwich, the FOIA and Discrimination Investigations

stressed workerInvestigations in the public sector confront the competing demands of employee privacy rights and the public’s “right to know” under the Freedom of Information Act [“FOIA”]. Another decision by the Freedom of Information Commission [“FOIC”] reminds us that the scales tilt decidedly toward disclosure.

In Greenwich Silver Shield Association v. Director, Human Resources Department, Town of Greenwich, #FIC 2013-546 (July 9, 2014), a female police captain filed a “hostile work environment” and discrimination complaint against certain members of the Town’s Police Department, its Police Chief and the Deputy Police Chief. The Town hired a third party to conduct an investigation into the complaint. The investigators interviewed several Department employees, reviewed documents provided by the captain, and submitted a final report to the Town.

An organization representing the Town’s police officers requested a copy of the report. The Town indicated that it would produce the report when the captain authorized its release. However, the captain objected to the disclosure of the report, and the Town did not produce it.

The FOIC ordered the Town to disclose the report. The FOIC rejected the Town’s (and the captain’s) claim that the report was exempt from disclosure under the FOIA’s exception for “personnel files … that would constitute an invasion of personal privacy.” The FOIC noted that under the FOIA, an employee should only be allowed to interpose an objection to the release of records where the public agency first reasonably believes that disclosure of the records would legally constitute an invasion of privacy. The FOIC found that the Town failed to prove that prior to notifying the captain of the request, a) it had first reviewed the requested records and b) based upon its review, reasonably believed that disclosure of such records would legally constitute an invasion of privacy; thus, the Town failed to prove that it had a reasonable belief that disclosure of the report would constitute an invasion of the captain’s privacy before it then permitted the captain to object to the report’s release.

The FOIC noted that there is a legitimate public interest in the on-duty conduct of police officers and the effective operation of a municipal police department and that disclosure of the report at issue would not be highly offensive to a reasonable person. The FOIC rejected the captain’s assertions that the report should not be disclosed due to 1) prior assurances made to her that the investigation would remain confidential, 2) her claim that disclosure would discourage public employees from filing discrimination and harassment complaints in the future, and 3) the fact that the people making the request allegedly had improper motives, and the report could be used to retaliate against the captain and her supporters. The FOIC noted that any promises of confidentiality by the Town to the captain could not create an exception to disclosure under the FOIA; indeed, such assurances are contrary to public policy. The FOIC further noted that one’s motivation for a records request is irrelevant to one’s right to access.

WHAT DOES THIS ALL MEAN? In the public sector, an absolute guarantee of confidentiality when investigating a complaint of employee wrongdoing should not be made, in light of 1) due process concerns for the accused, and 2) the FOIA. In addition, as I have warned in my book on the FOIA, a public agency cannot avoid its obligation to assess the existence of a privacy interest by deferring to the union or employees involved every time it receives a request for personnel records or related documents. Understanding the Connecticut Freedom of Information Act and Access to Public Meetings and Records, by Mark J. Sommaruga (4th Edition, 2013), at p. 71. Finally, with the exception of truly private information (e.g., intimate details or sexually explicit information, health-related information), one must assume that materials concerning harassment and discrimination complaints and reports are the public’s business and subject to disclosure. Investigators should be aware of this axiom.

In addition, private sector employers should be cognizant that while they may not be encumbered by the FOIA’s mandates, they still face the specter of litigation arising from discrimination and harassment claims. During the course of litigation, employers via discovery may be required to produce copies of (for example) investigative reports. In this context, there are pros and cons associated with reports by investigators being in written (as opposed to oral) form. Furthermore, the concerns about an absolute guarantee of confidentiality that exist in the public sector world thus remain valid for private sector employers.

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