concurring.
I agree with part I of the majority opinion, and with the result reached in part II. I disagree, however, with the analysis in part II. With respect to part II, namely, the application of the statutory phrase, “invasion of personal privacy,” to the facts of this case, I reach the same result as does the majority, but by a different route.
The majority opinion essentially rests on four related arguments. First, because neither the statute nor our cases have articulated a comprehensive definition of the phrase, “invasion of personal privacy,” as it is used in General Statutes § 1-19 (b) (2), guidelines are needed to fill that gap so that claimants of the statutory exemption may know what they must show. Second, the majority suggests that the legislature, by using the phrase “invasion of personal privacy,” intended the courts to construe that phrase according to its common-law meaning, by virtue of General Statutes § 1-1 (a).1 Third, the most persuasive common-law counterpart to the statutory phrase is the tort of invasion of privacy, particularly that strand of the tort defined by § 652D of the Restatement (Second) of Torts (1977). Fourth, the Restatement definition of the tort of invasion of privacy is 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.” Thus, *179according to the majority, those two elements define the meaning of “invasion of privacy” as used in § 1-19 (b) (2).
I agree with the majority to the extent that its first argument rests on the notion that some further judicial definition of the statutory phrase is needed. I disagree, however, that it is now necessary to arrive at a “comprehensive definition” that will “fill the gap” purportedly encountered by claimants who wish to avail themselves of the privacy exemption in § 1-19 (b) (2). For the reasons stated below, I prefer to continue to carve out the meaning of the phrase on a case-by-case basis, as opposed to adopting a definition that is, in my view, not well adapted to the interests implicated in the Freedom of Information Act (FOIA). I also believe that such a gradual adjudicative process was what the legislature intended when it enacted the phrase in 1967.
I disagree with the suggestion of the majority that the legislature intended the phrase, “invasion of personal privacy,” as used in § 1-19 (b) (2), to have the same meaning as § 652D of the Restatement. That phrase is not, as the majority suggests, a legal term of art that has acquired a peculiar and appropriate meaning in the law, within the contemplation of § 1-1 (a). The phraseology used by the Restatement is not “invasion of personal privacy” but “one who invades the right of privacy of another.” 3 Restatement (Second), Torts § 652A (1977). Similarly, the phraseology used by our cases is “an invasion of privacy action.” Venturi v. Savitt, Inc., 191 Conn. 588, 591, 468 A.2d 933 (1983). While this may appear to be semantic quibbling, I suggest that semantic differences, albeit slight, do or should affect the determination of whether the legislature has, by using particular language, intended the language as a term of art that incorporates another body of law.
*180This is particularly apt here where, contrary to the majority assertion that there is no relevant legislative history, the legislative history suggests to the contrary. The quotation from Representative Robert B. August regarding the meaning of “invasion of personal privacy”2 is like Sherlock Holmes’ inference from the silence of a dog that usually howled: it is relevant for what it does not say.3 If the legislature had intended to incorporate, by virtue of the operation of § 1-1 (a), the common-law tort of invasion of privacy, as ultimately reflected in § 652D of the Restatement,41 would have thought that, when addressing the particular issue, someone would have said so, rather than saying something quite different. Instead, Representative August’s statement is more plausibly understood as an invitation to the courts to develop our own interpretive gloss on the statutory phrase based, not on the common law of torts, but on the language and purposes of the FOIA.5
*181Moreover, my conclusion that “invasion of personal privacy” is not a term of art within the meaning of § 1-1 (a) so as to invoke § 652D of the Restatement is buttressed by the fact that, as the majority recognizes, invasion of privacy has many different meanings in the law, all of which depend on the particular context and on the particular interests that are at stake. See majority opinion, footnote 15. Thus, contrary to the majority’s argument, “invasion of personal privacy” is not a phrase that has “acquired a peculiar and appropriate meaning in the law” so as to require it to be “construed and understood accordingly.” (Emphasis added.) General Statutes § 1-1 (a). Instead, it is a phrase that has acquired a number of meanings in the law, and absent some indication that the legislature intended it to have a particular one of those meanings, we cannot say that it was intended to have a particular “peculiar and appropriate meaning.”6
This brings me to another fundamental difference with the analysis employed by the majority. Section 652D of the Restatement addresses the question of the circumstances under which a tort action for invasion of the right to privacy exists. Like all tort law, it is concerned with who shall bear the loss—whether the defendant should be required to compensate the plaintiff for harm caused by the disclosure of certain private facts. It addresses the question of whether, the disclosure already having been made, the courts ought *182to require money to change hands. Thus, it is concerned mainly with loss shifting interests, principally between private, not governmental, parties.7 This set of interests simply does not fit the quite different inquiry, required by § 1-19 (b) (2), of whether presumptive disclosure by the government is prohibited.
Furthermore, the standard in § 652D of the Restatement that the information “is not of legitimate concern to the public,” adopted by the majority as part of the meaning of “invasion of personal privacy,” necessarily returns us to the balancing test that we explicitly rejected in Chairman v. Freedom of Information Commission, 217 Conn. 193, 585 A.2d 96 (1991), the disclaimer of the majority to the contrary notwithstanding. The language of the Restatement is derived from, and the commentary specifically invokes, Cox Broadcasting Corp. v. Cohen, 420 U.S. 469, 95 S. Ct. 1029, 43 L. Ed. 2d 328 (1975). See 3 Restatement (Second), Torts § 652D, comment (d) (1977). In explaining that concept in Cox Broadcasting Corp., the United States Supreme Court indicated, implicitly at least, that a balancing test was involved. “If there are privacy interests to be protected in judicial proceedings, the States must respond by means which avoid public documentation or other exposure of private information. Their political institutions must weigh the interests in privacy with the interests of the public to know and of the press to publish. ” (Emphasis added.) Cox Broadcasting Corp. v. Cohen, supra, 496.
*183Once we embark, in the FOIA context, on determining whether the information sought is of “legitimate concern to the public,” it will be very difficult to avoid balancing the public’s need to know with the individual’s assertion of privacy. Notions of legitimacy are necessarily contextual and fact driven, and will end up in balancing, either explicitly, or implicitly without acknowledgment. Indeed, even the fourth amendment concept of a criminal defendant’s “legitimate expectation of privacy” sometimes involves a balancing test. See State v. Mooney, 218 Conn. 85, 96, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991), citing Hudson v. Palmer, 468 U.S. 517, 527, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984) (no legitimate expectation of privacy in prison cell because society’s interest in security of penal institutions outweighs prisoner’s interest in privacy within cell).
Moreover, even if we are somehow able to avoid a balancing test, the majority, by emphasizing that offensiveness and legitimacy are two separate prongs, both of which must be established independently, has nonetheless engrafted a new concept onto the language of § 1-19 (b) (2). That section provides only that certain records are exempt from disclosure if disclosure would constitute an invasion of personal privacy. It does not provide that the invasion must be accompanied by a lack of legitimate public need for disclosure.
This conclusion is reinforced by § 1-19 (b) (l),8 which explicitly mentions the public’s interest in disclosure. The absence of any such language in subdivision (2) indicates that the legislature did not intend the public inter*184est to be a factor under subdivision (2). See Chairman v. Freedom of Information Commission, supra, 200, in which we adopted the same reasoning in eschewing a balancing test in subdivision (2).
I recognize that it is convenient to adopt the Restatement formulation of the tort of invasion of privacy, because it gives us an entire body of law and analytical framework, rather than having to struggle with the concept of invasion of personal privacy on a case-by-case basis, as we have been doing. I suggest, however, that that body of law and framework are simply not what the legislature meant, and were not designed to govern issues of disclosure under the FOIA. Indeed, that body of law may well give us more than we want, because in future cases we will inevitably be confronted with precedents under § 652D of the Restatement that will be pressed upon us, with considerable persuasive force, but that may well prove unsuited to the interests protected by the FOIA.
What, then, would I substitute for the test adopted by the majority in this case? Although I agree with the majority that further guidance on the meaning of the statutory language is in order, I disagree that a comprehensive definition is now needed in order “to fill this gap.” I see no evidence, either in this record or in our cases under the FOIA generally, to suggest that the case-by-case adjudication method of defining the statutory meaning of “invasion of privacy” has hindered such claimants from securing their rights under the exemption, where warranted. Since we abandoned the balancing test in 1991; see Chairman v. Freedom of Information Commission, supra; this is only the second case that has called upon us to evaluate a claim that disclosure of material would constitute an “invasion of [the] personal privacy” of the claimant. See West Hartford v. Freedom of Information Commission, 218 Conn. 256, 588 A.2d 1368 (1991) (although ordinarily *185an address is not a private fact, municipal retirees should be afforded opportunity to show that, by virtue of their significant efforts, they have a reasonable expectation of privacy in their addresses). It may be, as the majority suggests, that the absence of a comprehensive definition makes it more difficult for such claimants than would otherwise be the case, but that is simply the inevitable result of being required by the legislature to meet a standard that necessarily is broadly phrased and that requires a case-by-case treatment—at least until there are sufficient cases decided that suggest, by their facts and reasoning, more definite contours.
I would conclude, instead, that the statutory language does not warrant anything more than the adoption of a general objective standard of reasonableness under all of the circumstances, in the determination of whether disclosure would constitute such an invasion. I would continue to fill the gap by referring to what we said in Chairman v. Freedom of Information Commission, supra, with further refinements required by the facts and claims in this case. In Chairman, we outlined several “significant factors in determining if disclosure would constitute an invasion of privacy.” Id., 198. These were: (1) whether the claimant had a “reasonable expectation of privacy” in the material sought to be disclosed; id.; (2) the “potential for embarrassment”; id.; (3) “whether the individual [whose privacy is at stake] originally gave the information to the government agency with the reasonable expectation that the material would be considered private”; id.; (4) the interest of government officials “in preserving the secrecy of matters that conceivably could subject them to annoyance or harassment in either their official or private lives”; id., 199; and (5) whether disclosure would severely undermine a strong public policy, *186such as “the need for full and frank exchange of information relating to the evaluation of public employees.” Id., 204 (Borden, J., concurring).
The plaintiff’s claims in this case warrant further explication of the first factor noted above, namely, whether the claimant had a reasonable expectation of privacy in the material. As with any elaboration of reasonableness, the standard must be applied in light of all of the circumstances of the case. In this respect, I agree with the majority that the language of comment (b) to § 652D of the Restatement is useful for that further explication—not, however, because § 652D is suggested by § 1-19 (b) (2), but because that language is simply a very good description of what a reasonable expectation of privacy is and is not in this day and age.
I would, therefore, add to the factors listed above the following additional guide to the application of the general standard of reasonableness: The protection afforded by the statutory language, “invasion of personal privacy,” must be gauged in relation to the customs of the time and place, to the occupation of the claimant, including the fact that he may be a public employee rather than a private citizen,9 and to the habits of his neighbors and fellow citizens. See 3 Restatement (Second), Torts § 652D, comment (c) (1977). As the commentary to the Restatement states, “[cjomplete privacy does not exist in this world except in a desert, and anyone who is not a hermit must expect and endure the ordinary incidents of the community life of which he is a part.” Id. Even moderate annoyance is not sufficient to justify the statutory privacy exemption. Only when the disclosure would be such that a reasonable person would *187be justified in feeling seriously aggrieved by it does the statutory exemption apply. See id.
Applying these factors, I have no difficulty concluding that, under the facts of this case, the plaintiff has not established her entitlement to the exemption. The specific information sought in this case was the number of sick days that the plaintiff had accumulated, the amount of money paid to her up to the date of the request, and the date on which she had last worked. Without belaboring the point, I would conclude that none of the factors listed above would justify the application of the statutory exemption to this information. Thus, I agree with the majority’s conclusion that disclosure in this instance is required.
General Statutes § 1-1 provides in pertinent part: “words and phrases. (a) In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.”
When the phrase was first introduced, Representative Robert B. August stated: “I believe the intent of the Committee was that if the record is kept that it shall be a public record unless the custodian feels that it would not provide reasonable protection to the character or reputation of any person. The courts will decide how far this situation may go. ” (Emphasis added.) 7 H.R. Proc., Pt. 5, 1957 Sess., pp. 2654-55. See majority opinion, footnote 13.
A. Doyle, Silver Blaze (1892). In this story, Sherlock Holmes solved the mystery by reasoning backwards from the fact that a dog, which usually barked, had been silent.
I recognize, as does the majority, that § 652D of the Restatement (Second) of Torts was not formulated until 1977, ten years after the enactment of the statutory phrase at issue in this case. I also recognize that the majority’s argument is not that the legislature intended in 1967 to adopt a standard that was not formulated until 1977, but that the legislature intended the phrase to be read in its common-law meaning, and that the most persuasive common-law counterpart to the statutory phrase is the tort of invasion of privacy, which is generally understood to be defined by § 652D.
Indeed, if the legislature had intended in 1967 simply to incorporate the common-law tort of invasion of privacy because the legislative phrase had acquired a peculiar and appropriate legal meaning, it is curious that, *181until the majority’s argument in this case, no one, including the freedom of information commission, which has been charged with enforcing the FOIA, has even suggested such an interpretation for the twenty-six years that the phrase has been employed under the FOIA.
Indeed, the Restatement itself, as the majority recognizes, identifies four different types of “invasion of the right of privacy of another,” none of which has much if anything to do with the other three. I do not agree that we can legitimately say that the legislature intended one of those four to define the contours of the legislative language simply because that one seems to deal with issues similar to the legislative language, albeit in a very different context and for very different purposes.
Indeed, under the FOIA it is the government that discloses, and, insofar as I know, there is no waiver of sovereign immunity for harm caused by such a disclosure. It is therefore anomalous to employ a standard of tort law that would not even apply to the party who makes the disclosure. In effect, the majority has substituted the administrative appeal process (assuming that the person whose privacy has purportedly been invaded appeals a freedom of information commission determination of disclosure) for what would otherwise have been a tort remedy against the disclosing agency for its past disclosure. That may be a rational public policy, but I cannot find it expressed anywhere in the FOIA.
General Statutes § 1-19 provides in pertinent part: “access to public RECORDS. EXEMPT RECORDS. . . .
“(b) Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of (1) preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure . . . .”
I note here that it is possible that some information sought to be shielded from disclosure pursuant to General Statutes § 1-19 (b) (2) may relate, not to the public employee whose personnel or medical files contains the information, but to a third party mentioned therein.