Old Saybrook will appeal a Freedom of Information Commission order to release the exit interview of a former police officer, the attorney who handled the FOI case for the town said in an email Monday.

The interview reportedly contains negative comments about Chief of Police Michael Spera.

To justify withholding the document, the town previously invoked a statute that exempts "personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy" from the Freedom of Information Act.

Releasing the interview "would constitute an invasion of personal privacy" because it "attacks the reputation of the police chief" and "could be harmful to the police chief or the Police Department," attorney Pat McHale told the FOIC at its July 13 meeting, a recording of which is available on the state website.

But the commission ultimately concurred with Hearing Officer Zack Hyde's recommendation to order the record's release. Hyde determined the exemption did not apply because the information contained within the interview was a matter of public interest and was not "highly offensive to a reasonable person," according to his report.

The case goes back to a complaint former Old Saybrook police Officer Justin Hanna filed with the commission last year.

Upon leaving the Old Saybrook Police Department, Hanna completed an exit interview in which he shared his opinions about his employment there.

But when Hanna, who now works as a police officer in East Lyme and was not available for comment Monday, tried to get a copy of the interview, the town would not release it. He ultimately turned to the FOIC to appeal the denial.

The FOIC then used a standard established by a state Supreme Court Decision known as Perkins v. Freedom of Information Commission to decide the record did not qualify for the invasion of privacy exemption.

Under the Perkins decision,"the claimant must establish both of two elements: first, that the information sought does not pertain to legitimate matters of public concern, and second, that such information would be highly offensive to a reasonable person," says the FOIC order, which concludes Old Saybrook's claim did not meet either requirement.

McHale disagreed, citing a different Connecticut Supreme Court decision to support his case. In 1991, the court's decision in Chairman, Criminal Justice Commission v. Freedom of Information Commission held exemption applied to the performance evaluation of a state's attorney because its release would constitute an invasion of privacy.

Old Saybrook's case, McHale told the commission, was analogous to the 1991 case.

Though the Perkins decision is more recent — it came down in 1993 — the Chairman decision still is considered law, McHale said.

He also argued the case met the Perkins requirements.

"There's no legitimate matter of public concern since the chief was given a reasonable expectation of privacy in the document, given the way it was handled by the police commission," he said. The commission discussed the exit interview privately in executive session, he said.

As for the second prong of the Perkins test, McHale said, "disclosure of the document would be highly offensive to the police chief and the Police Department because it attacks the reputation of the police chief."

But in responding to McHale before the commission, Hyde, the hearing officer who handled the case, said "there was nothing in there that would be highly offensive to a reasonable person." The case included an in-camera review of the exit interview, according to the FOIC order.

Colleen Murphy, executive director of the FOIC, also chimed in.

"Certainly here there would be a legitimate public concern in comments made about the chief of police," she said.

Moreover, while the Perkins decision did not overrule the Chairman decision, Murphy said, the court was clear the Perkins case would set the standard for applying the exemption.

"Attorney McHale would be hard-pressed to find a case since Perkins where some of the factors that he is asking you to consider here were considered by the courts," she said.

The vote to adopt Hyde's recommendation was unanimous.

Agencies must file appeals with the court within 45 days of receipt of the final decision, said Thomas Hennick, public education officer for the FOIC.

Hennick spoke generally about the process and did not make specific comments about Old Saybrook.

If an agency does not appeal the decision or release the records, Hennick said, that agency could face a noncompliance complaint.

"If they fail to or refuse to (release the records) then the complainant would file another complaint — a noncompliance complaint — and ask the commission to take harsher steps than just ordering the release of the document," Hennick said.