FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

             

The above-captioned matter was heard as a contested case on July 26 and September 10, 2007, at which times the complainants 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 of complaint filed March 26, 2007, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to provide records in the possession of WellCare of Connecticut, Inc. (“WellCare”).

 

3.  It is found that the complainants, beginning on June 26, 2006 and reiterated thereafter until and following the date of the complaint in this matter, requested from the respondent records, both of the respondent and of WellCare, concerning the criteria by which Well Care and other Medicaid HMOs decide requests for prior authorization of services sought by or on behalf of Medicaid enrollees.

 

4.  It is found that WellCare administers a portion of Connecticut’s Medicaid program.

 

5.  It is found that the respondent and WellCare, in response to the Commission’s decision and order in Docket #FIC 2005-025, Hartwig v. DSS, amended their contract to reflect that DSS was entitled to receive copies of WellCare’s records relating to the performance of the contract, and that such records were subject to disclosure under the FOI Act.

 

6.  It is found that the respondent sought responsive records from WellCare beginning no later than July 11, 2006, referring specifically to the complainant’s June 26, 2006 letter of request.

 

7.  It is found that the respondent obtained from WellCare (and in some cases from the Department of Social Service’s own files), and provided to the complainant, approximately 100 pages of responsive records on September 11, 2006;  approximately five pages on May 31, 2007; approximately 30 pages on June 13, 2007; approximately 75 pages on June 28, 2007; and approximately 100 pages on July 9, 2007.

 

8.  It is found that certain records relating to a clinical care-management decision support tool produced by McKesson Health Solutions, LLC and known as InterQual are the subject of a pending application for an injunction and are not sought by the complainants in this case.

 

9.  Section 1-200(5), G.S., provides:

 

“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

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

 

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. 

 

11.  Section 1-218, G.S., provides:

 

Each contract in excess of two million five hundred thousand dollars between a public agency and a person for the performance of a governmental function shall (1) provide that the public agency is entitled to receive a copy of records and files related to the performance of the governmental function, and (2) indicate that such records and files are subject to the Freedom of Information Act and may be disclosed by the public agency pursuant to the Freedom of Information Act.  No request to inspect or copy such records or files shall be valid unless the request is made to the public agency in accordance with the Freedom of Information Act.  Any complaint by a person who is denied the right to inspect or copy such records or files shall be brought to the Freedom of Information Commission in accordance with the provisions of sections 1-205 and 1-206. 

 

12.  It is found that the records described in paragraph 7, above, are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

13.  It is found that the respondent promptly, diligently and consistently pursued the requested records from WellCare, often in response to WellCare’s objections or delays.

 

14.  It is found that the records provided to the complainants are responsive to their request, and are the only records located by WellCare and the respondent, apart from the records described in paragraph 8, above, which are not the subject of this complaint. 

 

15.  It is further found that no responsive records (apart from the records described in paragraph 8, above, which are not the subject of this complaint) were ultimately withheld by WellCare from the respondent, or by the respondent from the complainants.

 

16.  It is concluded that the respondent did not violate §§1-210(a) and 1-212(a), G.S.

 

 

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

 

            1.  The complaint is dismissed.

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 12, 2008.

 

________________________________

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:

 

Sheldon Toubman and

New Haven Legal Assistance

Association, Inc.

426 State Street

New Haven, CT 06510

           

Commissioner,

State of Connecticut,

Department of Social Services

c/o Perry Zinn Rowthorn, Esq.

Assistant Attorney General

55 Elm Street

PO Box 120

Hartford, CT 06141-0120

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-184FD/paj/3/17/2008