As those familiar with the Connecticut Freedom of Information Act (FOIA) know, under the law the vast majority of public-employee personnel related records are subject to disclosure upon request. Nowhere is this more evident than with respect to records concerning employee misconduct. The following is a refresher with respect to the application of the FOIA to employee misconduct complaints and records from employee investigations.
The general rule=disclosure of personnel records.
The FOIA provides that a public agency need not disclose “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.” In practice, this invasion of privacy exception is a tough burden to meet, as it precludes disclosure of such personnel-related files of public employees only when the information sought “does not pertain to legitimate matters of public concern and is highly offensive to a reasonable person.” Simply put, public employees’ expectations of privacy are diminished, as the public has a right to know “when their public employees are and are not performing their duties.” Perkins v. FOIC, 228 Conn. 158, 175 (1993). Accordingly, this invasion of privacy exception generally only protects truly private information (e.g., health-related information, Social Security numbers, bank account information, etc.).
What about complaints against school staff members.
As the FOIA’s “personnel files” exception has been narrowly construed, Connecticut’s Freedom of Information Commission (FOIC) and the courts have usually rejected attempts to shield records concerning complaints of employee misconduct. As such, disclosure is required of records of complaints filed against a public employee (including teachers), along with records of the resulting investigations and any disciplinary actions taken.
What about the accused (even if the accusations may not be true)?
As the public has a right to know of 1) the on-the job behaviors of its employees and 2) the fairness and appropriateness (and overall handling) of investigations of workplace complaints, the FOIC has generally not recognized a privacy right for the accused even if the accused is eventually exonerated. The fact that the allegations were unsubstantiated does not defeat a request for records concerning an investigation.
What about the alleged victim?
The FOIC generally permits the redaction/withholding of the names of the alleged victim/complaining employee (especially with respect to a sexual harassment complaint), but it is not a guarantee.
What about witnesses?
Same answer (kind of). While the FOIC previously held in a case that the names of individuals who came forward and were interviewed regarding allegations of employee misconduct could be withheld or redacted (since the disclosure of the names of such individuals could have a chilling effect on the willingness to come forward to report such misconduct), there is no guarantee and efforts to withhold disclosure will likely be subject to review by the FOIC on a case-by-case basis.
What about student names in any personnel-related records?
While the personnel files exception may not fully protect employee privacy rights, separate exemptions under the FOIA for 1) student names and addresses, and 2) educational records (and “personally identifiable information” concerning students) protected from disclosure under the Family Educational Rights and Privacy Act (FERPA) will provide a basis to redact and withhold from disclosure portions of personnel and investigation records that would identify students (including any names of parents).
What about your notes?
The FOIA protects from disclosure “preliminary drafts or notes” where the public agency determines that “the public interest in withholding such documents clearly outweighs the public interest in disclosure.” As such, the FOIC has permitted the withholding of personal notes that were taken by an investigator while conducting an investigation. The FOIC has stated that since there is an interest in an investigator taking notes in order to recall witness interviews/testimony and relevant details for any final investigative report, public agencies would understandably fear that investigators would be too circumspect in notetaking if they knew that their notes would eventually be disclosed, thus compromising the effectiveness of investigations. Please remember: This exception will not cover written witness statements or other “completed” documents; generally speaking, the distribution of notes to others destroys any attempt to assert that these notes are “preliminary” or a “draft” (or for merely personal use) subject to protection from disclosure.
A final reminder.
The FOIC has long noted that promises of confidentiality to third persons do not create an exemption to disclosure. Simply put, in the public sector, an absolute guarantee of confidentiality when investigating a complaint of employee wrongdoing cannot be made. With the exception of truly private information (e.g., intimate details or sexually explicit information revealed during an investigation, health-related information), one must assume that materials concerning complaints and reports are the public’s business and subject to disclosure. While it is possible that you may be able to protect the names of the alleged victims of employee misconduct, and even possible that you may be able to protect the names of witnesses/informants, there is no guarantee. In other words, do not make promises that you cannot necessarily keep to employees when investigating misconduct/complaints.
Please note: This post was adapted from an article written by the author for the March 2025 edition of the CABE Journal; it is republished here with permission.
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