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FREEDOM OF INFORMATION
COMMISSION |
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In
the Matter of a Complaint by |
FINAL
DECISION |
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Victor
Zigmund, |
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Complainants |
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against |
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Docket
#FIC 1999-328 |
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Director,
State of Connecticut, Department of |
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Respondents |
January
26, 2000 |
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The above-captioned matter was heard as a contested case on October 20, 1999, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent is a public agency within the meaning of §1-200(1), G.S. [§1-18a(1), G.S.].
2. By letter dated May 14, 1999, the complainant made a written request to the respondent for a copy of all records related to the investigation conducted by her regarding a complaint filed by the complainant with the respondent against an employee of the Whiting Forensic Division of the Connecticut Valley Hospital (hereinafter “Whiting”), Dr. Hillard Foster.
3. By letter dated May 20, 1999, the Director of Labor Relations for the Department of Mental Health and Addiction Services responded to the complainant’s request by stating that the requested records would not be released because the investigation was not completed and that a lawsuit relative to the complaint had been filed.
4. By letter dated June 21, 1999, the complainant made another request for all records related to the investigation conducted by the respondent regarding a complaint filed by the complainant with the respondent against an employee of Whiting.
5. By letter dated July 10, 1999, and filed on July 15, 1999, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (hereinafter “FOI”) Act by failing to comply with his records request.
6. Section 1-210(a), G.S. [formerly §1-19(a), G.S.], provides in relevant part that:
[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.
7. Section 1-212(a), G.S. [formerly §1-15(a), G.S.], provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”
8. It is found that the requested record is a three page investigation report (hereinafter “report”) prepared by the respondent, consisting of two parts: a two page interim report which contains statements of witnesses; and a one page final report (hereinafter “the report”).
9. It is found that the report was prepared following an investigation of a complaint filed by the complainant against Dr. Foster, a physician at Whiting, alleging a breach of patient confidentiality.
10. It is found that the subject report is a public record within the meaning of §1-210(a), G.S.
11. The respondent submitted the subject report to the Commission for an in camera inspection, and has been identified as in camera document #s 1999-328-1 through 1999-328-3, inclusive.
12. At the hearing on this matter, the respondent argued that the report should not be disclosed because disclosure would compromise the treatment setting and the relationships that exist between the physicians and patients at Whiting. The respondent also argued that because the facility is a maximum security facility, housing many patients with histories of extreme violence, disclosure of the report would compromise the secure environment that exists at Whiting. The respondent further argued that disclosure of the report would be an invasion of Dr. Foster’s privacy because such disclosure would be highly offensive to a reasonable person.
13. The respondent contends that: §52-146e and §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.], exempts in camera document # 1999-328-1, lines 19 through 22 and lines 24 through 39, and in camera document # 1999-328-2, lines 1 through 5, from mandatory disclosure; and that §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.], exempts in camera document # 1999-328-2, lines 5, 11, 14 and 15 from mandatory disclosure because such disclosure would be highly offensive to a reasonable person
14. With respect to the respondent’s argument that disclosure of the report would compromise the treatment setting and the relationships that exist between the physicians and patients at Whiting, it is found that the respondent has failed to state a claim of exemption to the disclosure requirements of the FOI Act.
15. With respect to the respondent’s contention that §52-146e exempts the portions of the report described in paragraph 13, above, §52-146e(a), G.S., provides, in relevant part, that:
[a]ll communications and records as defined in §52-146d shall be confidential . . . no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.
16. Section 52-146d, G.S., defines “communications and records” to mean:
all oral and written communications and records thereof relating to diagnosis or treatment of a patient’s mental condition between the patient and a psychiatrist, or between a member of a patient’s family and a psychiatrist, or between any of such persons and a person participating under the supervision of a psychiatrist in the accomplishment of the objectives of diagnosis and treatment, wherever made, including communications and records which occur in or are prepared at a mental health facility.
17. Upon in camera inspection, it is found that the report does not contain “communications” and/or “records” within the definition set forth in §52-146d, G.S. Therefore, §52-146e, G.S., is not applicable to the subject report.
18. Section 1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.], 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.”
19. The appropriate test for determining whether §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.], is applicable to the subject report is set forth in Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993). The test requires that two elements be met: first, that the information sought does not pertain to legitimate matters of public concern; and, second, that such information is highly offensive to a reasonable person.
20. It is found that the subject report constitutes a “personnel” or “similar” file within the meaning of §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.].
21. It is also found, however, that the respondent only provided evidence to support the argument that disclosure of the information contained in the report would be highly offensive to a reasonable person. The respondent failed to provide evidence that the report does not pertain to a legitimate matter of public concern.
22. Consequently, it is found that respondent failed to prove that disclosure of the requested record, or any specific information therein, would be an invasion of Dr. Foster’s personal privacy within the meaning of §1-210(b)(2), G.S. [formerly §1-19(b)(2), G.S.] and therefore is not exempt from disclosure under that section.
23. Based on the foregoing, it is concluded that the respondent violated §1-210(a), G.S. [formerly §1-19(a), G.S.], by failing to provide the complainant with a copy of subject report.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.
1. The respondent shall forthwith provide the complainant with a copy of the investigation report as described in paragraph 8 of the findings, above, free of charge.
2. Pursuant to §1-206(b)(2), G.S. [formerly §1-21i(b)(2), G.S.], the Commission, in its discretion, declines to order the disclosure of the initials and names of individuals who were interviewed during the investigation. Therefore, in complying with paragraph 1 of the order, above, the respondent may redact the initials and names of those interviewed.
3. Henceforth, the respondent shall strictly comply with the disclosure provisions of §1-210(a), G.S. [formerly §1-19(a), G.S.].
Approved by Order of the Freedom of Information Commission at its regular meeting of
January 26, 2000.
_________________________
Melanie R. Balfour
Acting Clerk of the Commission
PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.
THE PARTIES TO THIS CONTESTED CASE ARE:
Victor Zigmund
O’Brien Drive
PO Box 70
Middletown, CT 06457-0070
Director, State of Connecticut, Department of Mental Health and Addiction Services, Human Resources Operations, Connecticut Valley Hospital, Whiting Forensic Division
c/o Atty. Patricia A. Gerner
Assistant Attorney General
55 Elm Street, PO Box 120
Hartford, CT 06141-0120
__________________________
Melanie R. Balfour
Acting Clerk of the Commission
FIC1999-328FD/mrb/01/28/00