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),
The record reveals the following facts and procedural history relevant to this appeal. In May, 1987, the city
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.
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
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.
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).
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 Hamilton's request to inspect the file in violation of § 1-214 (b). As is more fully discussed in part II of this opinion, the FOIA does not provide a private right of action.
Even if we read the substitute complaint to assert that the alleged FOIA violations constituted an invasion of the plaintiff's privacy per se, the plaintiff could not prevail. As Perkins recognized, in order to establish a cause of action for invasion of privacy, a plaintiff must allege that the disclosure of the information "`(a) would
Finally, "[t]his court has previously stated that [a] municipality itself was generally immune from liability for its tortious acts at common law . . . . We have also recognized, however, that governmental immunity may be abrogated by statute . . . . Thus, the general rule developed in our case law is that a municipality is immune from liability for [its tortious acts] unless the legislature has enacted a statute abrogating that immunity." (Internal quotation marks omitted.) Spears v. Garcia, 263 Conn. 22, 28, 818 A.2d 37 (2003). The plaintiff has not cited any statute abrogating governmental immunity to the tort of invasion of privacy.
We next address the plaintiff's claim that the trial court improperly granted the city's motion for summary judgment on count two of the plaintiff's substitute complaint which, unlike count one, expressly is premised on the proposition that the alleged FOIA violations, in and of themselves, gave rise to a private action for money damages. The plaintiff argues that the granting of the motion for summary judgment was improper because § 1-210 (b) (2) contains an implied right of action.
The trial court's conclusion that the FOIA does not give rise to a private cause of action was based on its determination that Perkins v. Freedom of Information Commission, supra, 228 Conn. 175-76, merely gave substantive meaning to the phrase "invasion of personal privacy" as used in § 1-210 (b) (2), and did not recognize
This court previously has recognized that, "[i]n determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff one of the class for whose. . . benefit the statute was enacted . . . ? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one?. . . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?" (Internal quotation marks omitted.) Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 249, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L. Ed. 2d 308 (1997).
We repeatedly have stated that "[t]he overarching legislative policy of [FOIA] is one that favors the open conduct of government and free public access to government records. . . . The sponsors of the [act] understood
Thus, "the class for whose . . . benefit [FOIA] was enacted"; (internal quotation marks omitted) Napoletano v. Cigna Healthcare of Connecticut, Inc., supra, 238 Conn. 249; consists of members of the general public who desire information about the conduct of their government. Although the FOIA recognizes certain privacy interests that are in tension with the intended benefit to the public, it cannot be said that the act as a whole was intended to protect those interests. Moreover, the FOIA does not contain any explicit provisions suggesting the existence of a private right of action for the violation of such interests. As the trial court properly determined, nothing in our decision in Perkins suggests otherwise. Accordingly, we are persuaded that the legislature intended that the civil penalty provided by § 1-206 (b) (2) would be the exclusive remedy for the violation of a right conferred by the FOIA.
In any event, as we have already suggested, there is a more fundamental reason that the plaintiff may not bring this claim against the city. "[T]he general rule
We next address the plaintiff's claim that the trial court improperly granted summary judgment on count three. The plaintiff argues that the city may be held liable under 42 U.S.C. § 1983 because Merullo had final policy making authority with respect to the release of her personnel records pursuant to the FOIA request. We affirm the trial court's ruling.
"In Monell v. Dept. of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L. Ed. 2d 611 (1978), the United States Supreme Court . . . held that `[l]ocal governing bodies . . . can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.' `[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be
"In Pembaur v. Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L. Ed. 2d 452 (1986), the United States Supreme Court further elaborated on the scope of municipal liability under § 1983. In Pembaur, the court considered the `official policy' requirement discussed in Monell, and concluded that `it is plain that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances.' Id., 480. `If the decision to adopt [a] particular course of action is properly made by that government's authorized decisionmakers, it surely represents an act of official government "policy" as that term is commonly understood.' Id., 481. Further defining the limits of this definition, the court held that `municipal liability under § 1983 attaches where—and only where—a deliberate choice to follow a course of action is made from among various alternatives by the officials or officials responsible for establishing final policy with respect to the subject matter in question.' Id., 483.
"Noting that the courts of appeals had not applied these principles consistently, the United States Supreme Court, in St. Louis v. Praprotnik, 485 U.S. 112, 124, 108 S.Ct. 915, 99 L. Ed. 2d 107 (1988), `set out again to clarify the issue that we last addressed in Pembaur.' The court stated: `Two Terms ago, in Pembaur. . . we undertook to define more precisely when a decision on a single occasion may be enough to establish an unconstitutional municipal policy. Although the [c]ourt was unable to settle on a general formulation, Justice Brennan's opinion articulated several guiding principles. First, a majority of the [c]ourt agreed that municipalities may be held liable under § 1983 only for acts for which the municipality itself is actually responsible, that is, acts which the municipality has
The plaintiff in the present case alleged in count three of her substitute complaint that "[t]he violation of the [p]laintiff's right of privacy by the [d]efendants, [the city and Merullo], was done under color of state law." In her brief to the trial court on the motion for summary judgment, she argued that "Merullo is admitted to be the [city's] [p]ersonnel [d]irector, an official within the city government . . . . There is no dispute that . . . Merullo acting as an officer of the [city] released the [p]laintiff's entire personnel file to . . . Hamilton. A reasonable inference that can be drawn from these facts is that .. both Merullo and the [city], when making public her personnel file were engaged in conduct that is related to the public authority conferred on these individuals."
The trial court stated in its memorandum of decision that "[n]either party alleges that [the city] has an officially-adopted policy as to how to construe the personal privacy exemption under the FOIA, or that Merullo is responsible for establishing final municipal policy with respect to the exemption." The court concluded that the motion for summary judgment should be granted in favor of the city because Merullo's release of the plaintiff's personnel file "did not represent a final governmental
The plaintiff, in her brief to this court, now acknowledges for the first time that a municipality may be held liable under 42 U.S.C. § 1983 for the single action of a government employee only when the challenged action was taken by a government official with "final policymaking authority . . . . " (Internal quotation marks omitted.) St. Louis v. Praprotnik, supra, 485 U.S. 123. She also argues, again for the first time, that Merullo, as the city's personnel director, "possessed the final authority on releasing the plaintiff's personnel file." She provides no evidentiary foundation for this factual claim and no legal authority or argument for the proposition that the authority to make a final decision on releasing a personnel file amounts to "final policymaking authority" within the meaning of St. Louis v. Praprotnik, supra, 123. See Jett v. Dallas Independent School District, 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L. Ed. 2d 598 (1989) (identification of officials whose decisions represent official policy of local governmental unit is legal question to be resolved by trial judge before case is submitted to jury). Accordingly, we conclude that the trial court properly determined, on the basis of the record before it at the time of its ruling, that there was no genuine issue of material fact and that the city was entitled to judgment on count three as a matter of law.
Finally, the plaintiff claims that the trial court improperly granted the motion for summary judgment for the city on count four of her complaint alleging intentional infliction of emotional distress. The trial court granted the motion on the ground that Merullo's conduct was not extreme and outrageous. The plaintiff argues that a reasonable fact finder could find that the failure of Merullo and the city to notify her of Hamilton's request
In Miner v. Cheshire, 126 F. Sup. 2d 184, 186 (D. Conn. 2000), the plaintiff brought a complaint against the town of Cheshire and a town employee alleging, inter alia, intentional infliction of emotional distress. The District Court concluded that, "[t]o the extent that [the plaintiff] alleges that the [t]own is liable for any intentional infliction of emotional distress by [the town employee] . . . such a claim is precluded by [General Statutes] § 52-557n, which provides, that `a political subdivision of the state shall not be liable for damages to person or property caused by . . . [a]cts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct. . . .' [General Statutes] § 52-557n (a) (2) (A) . . . . Under Connecticut law, the term `wilfulness' is synonymous with `intentional.' Bhinder v. Sun Co., 246 Conn. 223, 242 n. 14, 717 A.2d 202 (1998) (`While [courts] have attempted to draw definitional [distinctions] between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing.'), quoting Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988) ["wilful misconduct has been defined as intentional conduct"]; see also Elliott v. City of Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998) (legal concepts of wanton, reckless, wilful, intentional and malicious conduct indistinguishable); Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 527, 686 A.2d 481 (1996) (`A wilful act is one done intentionally or with reckless disregard of the consequences of one's conduct.'). Thus, the [t]own may not be liable under [§] 52-557n (a) (2) (A) for [its employee's] alleged intentional infliction of emotional distress." (Emphasis in original.) Miner v. Cheshire, supra, 194.
The judgment is affirmed.
In this opinion the other justices concurred.
We note that there is an exception to the doctrine of qualified immunity from liability as it applies to a municipal employee, as distinct from the municipality itself, "where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . ." (Citation omitted.) Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). That exception does not apply in this case because the claims against Merullo have been withdrawn.