FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

  

The above-captioned matter was heard as a contested case on July 22, 2004, 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.

 

2.      By letter dated April 12, 2004 and filed on April 15, 2004, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with her February 18, 2004, March 11, 2004, and April 5, 2004 requests. 

 

3.      It is found that the complainant’s February 18 and March 11, 2004 requests were similar to her April 5, 2004 letter in which she requested a copy of “mandatory abortion reports for the past three years and the physician’s estimate of gestational age (GA) at the time of the abortion for the past three years according to The State of Connecticut’s Post Viability Ban Law, including mandatory abortion reports data on 1) SAGA and Medicaid and 2) State Children’s Health Insurance Program (S-CHIP) for both the Husky A and the Husky B programs” (hereinafter “the requested records”).

 

4.      Section 1-210(a), G.S., provides in relevant part that:

 

Except 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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with 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. 

 

5.      Section 1-212(a), G.S., provides in relevant part that “any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.” 

 

6.      It is found that the requested records are public records within the meaning of §1-210(a), G.S.

 

7.      It is found that after a series of communications, which included a letter dated March 25, 2004 responding to the complainant’s requests, and a less than cordial conversation with the complainant at the respondent’s office over the telephone, the Department of Social Services’ (hereinafter “DSS”) FOI compliance officer, David Dearborn, provided the complainant with a redacted copy of the records responsive to her requests.  

 

8.      At the hearing on this matter, the complainant contended that not only did the respondent fail to promptly comply with her requests, but that Mr. Dearborn also inappropriately redacted the records responsive to her requests and that he twisted the language of certain statutes in order to justify the redactions.

 

9.      With respect to the timeliness of the respondent’s response, it is found that the complainant made four similar records requests, dated December 1, 2003, February 18, 2004, March 11, 2004 and April 5, 2004, to a David Parrella of the DSS, requesting the records described in paragraph 3, above.

 

10.  It is found that because §1-206(b)(1), G.S., requires that complaints be filed within thirty days from the date of the alleged violation, the Commission lacks jurisdiction to determine whether the respondent promptly complied with the complainant’s December 1, 2003 and February 18, 2004 requests.  However, the Commission has jurisdiction over the complainant’s March 11, 2004 and April 5, 2004 requests.  In this regard, the Commission’s findings and conclusions are limited to those requests.

 

11.  It is found that once Mr. Dearborn received the complainant’s requests from Mr. Parrella, he sent the March 25, 2004 letter described in paragraph 7, above.  In that letter, Mr. Dearborn informed the complainant that her request was being coordinated by his office and that she would be contacted, within a week, regarding the number of responsive records for which she would be charged 25 cents per page for a copy.

 

12.        It is found, however, that the complainant, having not been contacted within a week from March 25, 2004, went to the respondent’s office to review the records and was told that compilation of the requested records had not been completed.

 

13.        It is found that the complainant then sent her April 5, 2004 request to the respondent.

 

14.        It is found that by letter dated April 12, 2004, Mr. Dearborn informed the complainant that 229 records responsive to her requests were compiled and that to obtain a copy of the records, she should forward a check in the amount of $67.25 to the DSS Division of Fiscal Analysis. 

 

15.        It is found that after receiving the complainant’s check of $67.25, the respondent provided a redacted copy of the responsive records in two parts on May 18, 2004 and June 7, 2004. 

 

16.        With respect to the issue of promptness, it is found that the respondent, through Mr. Dearborn, did not respond to the complainant’s March 11, 2004 request until 2 weeks later, that another 12 business days lapsed before the records were compiled and that, in total, it took the respondent 12 weeks and two days to provide the complainant with the responsive records, including the time it took for the respondent to receive the complainant’s check.

 

17.        It is found that the respondent failed to comply “promptly” with the complainant’s requests within the meaning of §§1-210(a) and 1-212(a), G.S., and it is concluded that the respondent thereby violated those provisions in that regard.

 

18.        With respect to the redactions in the requested records, it is found that some of the responsive records are quarterly reports of non-Hyde amendment abortions (hereinafter “quarterly reports”) that contains the following seven columns of information: date of service; procedure code; diagnosis; provider code; provider name; paid date; amount paid.

 

19.        It is found that the respondent redacted the month and day in the date of service column, and the provider code and provider name, from the quarterly reports provided to the complainant.

 

20.        It is found that the redactions described in paragraph 19, above, are the only redactions at issue in this case. 

 

21.        At the hearing on this matter, the respondent contended that pursuant to §17b-90(b), G.S., and other federal statutes, the respondent is prohibited from disclosing any information that could directly or indirectly lead to the disclosure of the identity of persons participating in a program administered by DSS.  The respondent argued that disclosure of the provider code and name along with other available information could lead to indirect disclosure of the identity of DSS clients.

 

22.        Section 17b-90(b), G.S., provides in relevant part that: 

 

No person shall, except for purposes directly connected with the administration of programs of the Department of Social Services and in accordance with the regulations of the commissioner, solicit, disclose, receive or make use of, or authorize, knowingly permit, participate in or acquiesce in the use of, any list of the names of, or any information concerning, persons applying for or receiving assistance from the Department of Social Services or persons participating in a program administered by said department, directly or indirectly derived from the records, papers, files or communications of the state or its subdivisions or agencies, or acquired in the course of the performance of official duties.

 

23.        It is found that the Husky A/Bluecare Family Plan is a program administered by DSS and as part of that program, DSS provides financial assistance to persons participating in that program for non-Hyde amendment abortions.

 

24.        It is found that the quarterly reports are created by DSS and contain information that pertains only to persons participating in the Husky A/Bluecare Family Plan that have had non-Hyde amendment abortions. 

 

25.        It is found that information in the quarterly reports is submitted by various medical entities in order to receive payment from DSS for services provided by such medical entities to persons participating in the Husky A/Bluecare Family Plan.

 

26.        It is found that the quarterly reports include the date on which a person received an abortion, the type of abortion performed, and which doctor, clinic or hospital performed such abortion. 

 

27.        It is found that the quarterly reports constitute “. . . information concerning persons . . . participating in a program administered by [DSS] directly or indirectly derived from the records, papers, files or communications of the state . . . or acquired in the course of the performance of official duties” within the meaning of §17b-90(b), G.S.

 

28.        It is found that disclosure of information about a particular abortion, performed by a particular doctor on a particular date, at a particular clinic or hospital, in a large urban community would not reveal the identity of a person applying for or participating in the Husky A/Bluecare Family plan administered by DSS.  However, in smaller rural areas, served by a limited number of doctors or clinics, disclosure of the redacted information could indirectly lead to disclosure of information that is prohibited by §17b-90(b), G.S., and the record in this case contains no assurance to the contrary.  See Edward W. Maher, Commissioner of Department of Income Maintenance v. Freedom of Information Commission, 192 Conn. 310 (1984) 320 (wherein the Court concluded that the record did not establish that access to certain requested information could not conceivably lead to the identity of individual Medicaid recipients and therefore such information was prohibited from disclosure).

 

29.        It is concluded therefore that the redacted information, as described in paragraph 15, above, is prohibited from disclosure pursuant to §17b-90(b), G.S., and that the respondent did not violate the disclosure provisions of §§1-210(a), and 1-212(a), G.S., when she provided the complainant with a redacted copy of the quarterly reports.

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

            1.  Henceforth the respondent shall strictly comply with the promptness provisions of §§1-210(a) and 1-212(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 10, 2004.

 

________________________________

Petrea A. Jones

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:

 

Mary Ann Sprague

Stop Planned Parenthood of Connecticut

82 Longmeadow Road

Bethlehem, CT 06751

 

Commissioner, State of Connecticut,

Department of Social Services

c/o Hugh Barber, Esq.

Assistant Attorney General

55 Elm Street

PO Box 120

Hartford, CT 06141-0120

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-184FD/paj/11/16/2004