The “Perkins” Case And The “Legimate Public Concern” Test

If you are a CT-N junkie like me, or have been following reports in other media outlets concerning proposed legislation that would restrict access under the state Freedom of Information Act (“FOIA”) to crime scene photographs and 911 calls, you’ve probably heard many references to two court cases, one called “Perkins,” the other called “Favish.”   The two cases establish different legal standards for determining when the public disclosure of a government document would constitute an invasion of someone’s personal privacy.  In fact, Don DeCesare, the co-chairman of the Task Force on Victim Privacy and the Public’s Right to Know, jokingly said in testimony before a legislative committee two weeks ago that he wished he had never heard of those two cases.  (They were discussed ad nauseam during task force meetings.)

The purpose of this post is not to debate the relative merits of the Perkins and Favish standards, but to discuss a potential problem that arises when courts borrow a legal concept from one area of the law and import it into another area of the law.

Perkins v. Freedom of Information Comm’n, 228 Conn. 158 (1992), required the state Supreme Court to resolve a question about the meaning of a particular provision of the FOIA . The provision in question states that “nothing in the Freedom of Information Act shall be construed to require disclosure of . . . [p]ersonnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy. . . .”

The legislative history of the FOIA offered no insight into the meaning of the italicized phrase.  Accordingly, the Supreme Court looked beyond the FOIA and its legislative history to a well-developed body of common law involving invasion of privacy torts, a body of law that traces its roots to perhaps the most famous and influential law review article ever written–an 1890 article in The Harvard Law Review entitled The Right to Privacy, co-authored by Louis Brandies (who would eventually become a justice of the U.S. Supreme Court) and Samuel Warren.  Warren and Brandies argued in the article that the common law (i.e., judge-made law) needed to evolve to protect individual privacy against a press that was “overstepping in every direction the obvious bounds of propriety and decency.”

Today, virtually every state has recognized the tort of invasion of privacy, which is really an “umbrella” covering four closely related torts, one of which is generally known as the “publication of private facts” tort.  Loosely speaking, a person commits that tort if she widely disseminates information about another person and that information is: 1) private; 2) highly offensive to a reasonable person; and 3) not a matter of legitimate public concern.

I emphasize the word “not” in the last sentence because for a plaintiff to win that tort, she bears the burden of proving that the information that was disclosed about her is not a matter of legitimate public concern.  The burden is not on the defendant to prove that the disclosed information is a matter of legitimate public concern.

So, to sum up, the state Supreme Court in Perkins “borrowed” the legal elements of the publication of private facts tort and used them to give meaning to the “invasion of privacy” language in the FOIA.  But, although the Supreme Court borrowed the words “legitimate public concern” from the common law invasion of privacy tort, I often wonder whether it left behind the meaning of those words as the courts had come to understand them in the common law context.  My sense–and it is only a sense–is that when a Connecticut judge finds him or herself having to decide an FOIA case involving the Perkins invasion of privacy standard, the question the judge asks is whether he or she thinks the documents at issue contain information that is a legitimate matter of public concern.  That is, the judge refers to his or her own personal values in deciding that all-important question.  That, however, is not how the common law approaches the question.

The key to the common law approach is deference.  The U.S. Supreme Court has held that what constitutes a matter of “public concern” must be construed broadly, lest “courts themselves . . . become inadvertent censors.”  Snyder v. Phelps, 131 S. Ct. 1207, 1216 (2011),  As the Second Circuit explained in Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 102 n.9 (2d Cir. 2000), the sphere of information that is of public concern is “extraordinarily broad with great deference paid to what the publisher deems to be of public interest”).  See also  R. Sack, SACK ON DEFAMATION § 3:3.2[A] (4th ed. 2010) at 3–9 (public concern must be given broad scope to avoid court assuming “the constitutionally suspect role of super-editor, deciding on a case-by-case basis what is newsworthy”).

In short, the common law does not want judges to become “editors” when they are asked to decide whether certain information is a matter of legitimate public concern.  The common law wants judges to give great deference to the editorial judgment of the publisher of the information.

It is fair to ask whether the common law’s deferential approach to the “legitimate public concern” question should apply in the FOIA context, where the legal issue is not whether a media entity should have to pay money damages for publishing private information, but whether the government should be required to disclose public records that contain private information about individuals whose only connection to the government may be that they were the victim of, or a witness to, a crime.  Should the same level of deference be given to anyone who is a “requestor” of government documents as is given to traditional “publishers” of information?

As an open government advocate, I think the public has a compelling interest in law enforcement records, which may shine a bright light on how law enforcement officials perform their jobs, and even shed light on whether a person has been wrongly charged with, or convicted of, a crime.  (That is not to say that I believe crime scene photographs of homicide victims should necessarily be published in newspapers or splashed all over the Internet.  I don’t.  I just don’t think that the police, legislators or judges should have the final say on whether such information is published.)

My broader point, however, is this: if a court is going to look to the common law to inform its understanding of the meaning of a statute, it must do more than simply borrow “words” from the common law; it must endeavor to understand what those words actually mean under the common law.  Otherwise it is simply substituting words for analysis.