Pane v. City of Danbury

• Decision Date: 02 March 2004
• Docket Number: (SC 17041)
• Citation: 267 Conn. 669,841 A.2d 684
• Court: Connecticut Supreme Court
• Parties: CHRISTA M. PANE v. CITY OF DANBURY ET AL.

267 Conn. 669

841 A.2d 684

CHRISTA M. PANE v. CITY OF DANBURY ET AL.

(SC 17041)

Supreme Court of Connecticut

Argued November 26, 2003

Officially released March 2, 2004

Sullivan, C. J., and Norcott, Katz, Palmer and Zarella, Js.

Thomas W. Bucci, for the appellant (plaintiff).

Thomas R. Gerarde, with whom, on the brief, was Jay T. DonFranciso, for the appellees (defendants).

Victor R. Perpetua, appellate attorney, and Mitchell W. Pearlman, general counsel, filed a brief for the Freedom of Information Commission as amicus curiae.

Opinion

SULLIVAN, C. J.

This appeal arises from a claim by the plaintiff, Christa M. Pane, an employee of the named defendant, the city of Danbury (city), that the defendant Emanuel Merullo, who was employed by the city as personnel director, improperly permitted a newspaper reporter to review her personnel file pursuant to the Freedom of Information Act (FOIA), General Statutes § 1-200 et seq. The plaintiff brought a five count complaint against the defendants alleging a violation of the public policy embodied in General Statutes § 1-210 (b) (2), formerly § 1-19 (b) (count one); violations of § 1-210 (b) (2) and General Statutes § 1-214 (b),¹ formerly § 1-20a (b) (count two); deprivation of the plaintiff's state and federal constitutional right to privacy in violation of 42 U.S.C. § 1983² (count three); intentional infliction of emotional harm (count four); and negligent infliction of emotional harm (count five).³ Thereafter, the trial court granted the defendants' motion for summary judgment as to counts one, two, four and five. With respect to count three, the court granted the defendants' motion for summary judgment as to the state constitutional claims against both defendants and the federal constitutional claim against the city. It denied the motion for summary judgment as to the federal constitutional claim against Merullo. The plaintiff then brought this appeal⁴ claiming that the trial court improperly had rendered summary judgment in favor of the city on counts one, two, three and four.⁵ We affirm the judgment of the trial court.

The record reveals the following facts and procedural history relevant to this appeal. In May, 1987, the city hired the plaintiff as a public health inspector. In October, 1995, Merullo received a FOIA request from Elizabeth Hamilton, a newspaper reporter for the Danbury News-Times, to review the plaintiff's personnel file. Thereafter, Merullo informed the city's attorney that he had received the request and they discussed how he should handle it. Merullo then reviewed the plaintiff's personnel file to determine whether it contained any material that was unrelated to matters of legitimate public concern or contained information the disclosure of which would be highly offensive to a reasonable person. After determining to his own satisfaction that it contained no such materials, he made the file available to Hamilton. Merullo did not notify the plaintiff of Hamilton's request or of the release of the file. Subsequently, the Danbury News-Times published two articles written by Hamilton that were critical of the plaintiff. The articles contained information from the plaintiff's personnel file.

On October 7, 1997, the plaintiff filed this action against the defendants. She filed a substitute complaint on February 13, 1998. The defendants filed a motion for summary judgment on February 1, 1999, and on October 18, 2002, the trial court issued its memorandum of decision. The court granted the motion as to counts one and two on the ground that the FOIA does not provide a private cause of action for civil damages. The court granted the motion as to count three against the city on the grounds that: (1) the state constitution does not provide a private cause of action for invasion of privacy; and (2) liability under 42 U.S.C. § 1983 for violations of the federal constitution does not attach in the absence of a widespread discriminatory "custom and usage" by the local governmental body. Finally, it granted the motion as to count four on the ground that Merullo's conduct was not extreme and outrageous.

On appeal, the plaintiff claims that the trial court improperly granted the defendants' motion for summary judgment in favor of the city: (1) on count one of the substitute complaint because the court incorrectly determined that the claim was premised on the proposition that the FOIA provides a private cause of action, when in fact it was premised on the proposition that the city violated public policy; (2) on count two because the FOIA contains an implied private right of action and there is a genuine issue of fact as to whether the city violated the provisions of the act; (3) on count three alleging a violation of 42 U.S.C. § 1983 because Merullo had authority to establish policy with respect to the release of personnel records;⁶ and (4) on count four because Merullo's conduct was extreme and outrageous. We conclude that the trial court properly rendered summary judgment in favor of the city on all four counts.

I

We first address the plaintiff's claim that the trial court improperly rendered summary judgment for the city on count one of the substitute complaint. The trial court granted the motion for summary judgment on counts one and two on the ground that the FOIA does not create a private cause of action. The plaintiff argues that count one was not premised on that proposition, but on the proposition that the plaintiff has a right of action for the violation of the public policy embodied in § 1-210 (b) (2). In other words, the plaintiff argues that count one did not allege statutory violations, but a violation of public policy. We conclude that: (1) the trial court properly determined that count one alleges FOIA violations and that the FOIA does not provide a private right of action; (2) even if the plaintiff attempted to allege a violation of public policy in count one, the allegations were legally insufficient; and (3) the plaintiff has not established that governmental immunity from claims of invasion of privacy has been legislatively abrogated. Accordingly, we affirm the ruling of the trial court.

Before addressing the plaintiff's arguments, we first set forth the applicable standard of review of a court's ruling on a motion for summary judgment.⁷ "Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book [§ 17-46]." (Internal quotation marks omitted.) Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 397-98, 757 A.2d 1074 (2000). "A material fact . . . [is] a fact which will make a difference in the result of the case. . . . Finally, the scope of our review of the trial court's decision to grant the plaintiff's motion for summary judgment is plenary." (Citation omitted; internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560, 783 A.2d 993 (2001).

In support of her claim, the plaintiff relies on Perkins v. Freedom of Information Commission, 228 Conn. 158, 635 A.2d 783 (1993). In that case, we undertook to define the phrase "invasion of personal privacy" as used in § 1-210 (b) (2).⁸ Id., 169. We concluded that, "[a]s a common-law matter, the privacy concerns embedded in the `invasion of personal privacy' exemption from the FOIA mirror developing notions of protection for personal privacy that have emerged in a variety of legal contexts since the latter part of the nineteenth century." Id., 170. "Section 652D of the Restatement (Second) of Torts 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.' By its terms, therefore, the tort action provides a private remedy to implement a public policy that closely approximates the public policy embodied in § [1-210 (b) (2)] of the FOIA." Perkins v. Freedom of Information Commission, supra, 172.

Thus, in Perkins, we recognized that the common-law tort action for invasion of personal privacy is grounded in the same public policy interest that the legislature sought to advance by enacting § 1-210 (b) (2), namely, the interest in shielding "entirely private matters . . . [from] the public gaze . . . ." Id., 173. We also recognized that the proper remedy for a violation of that public policy is a tort action for invasion of privacy. See id., 172, 174 (tort standard would supply remedy only for, and § 1-210 (b) (2) of FOIA would bar disclosure only of, information that is highly offensive to ordinary, reasonable person).

Upon a careful reading of the plaintiff's substitute complaint, we conclude that count one is most reasonably read to allege that the defendants violated the provisions of the FOIA, rather than, as the plaintiff claimed, to allege a violation of the public policy embodied in § 1-210 (b) (2), in other words, an invasion of her personal privacy. For example, the complaint alleges that the plaintiff has a statutory right to privacy under various FOIA provisions, that the defendants violated that right by granting Hamilton access to her personnel file, and that the defendants failed to notify the plaintiff of...