FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on September 16, 2009, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.      By letter dated February 24, 2009, the complainant made a request to the respondents for copies of the following records: “any and all information regarding the investigation of food poisoning at the Holiday Inn, Waterbury on 2/8/09” (the “requested records”).   

 

3.      It is found that, by letter dated May 25, 2009, the respondents acknowledged the complainant’s request, but stated that the requested records were exempt from disclosure pursuant to §§19a-25 and 19a-215, G.S.

 

4.      By letter dated May 25, 2009 and filed May 26, 2009, the complainant appealed to the Commission, alleging that the respondents’ failure to produce the requested records violated the Freedom of Information Act. 

 

5.      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.

 

6.      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 . . . (3) receive a copy of such records in accordance with section 1-212.

 

7.      Section 1-212(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 to the extent the respondents maintain the records described in paragraph 2, above, such records are public records and must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 

9.      Section 19a-25, G.S., provides  in relevant part as follows:

 

All information, records of interviews, written reports, statements, notes, memoranda or other data, . . .  procured by the directors of health of towns, cities or boroughs or the Department of Public Health pursuant to section 19a-215, . . . for the purpose of reducing the morbidity or mortality from any cause or condition, shall be confidential and shall be used solely for the purposes of medical or scientific research and, for information obtained pursuant to section 19a-215, disease prevention and control by the local director of health and the Department of Public Health. Such information, records, reports, statements, notes, memoranda or other data shall not be admissible as evidence in any action of any kind in any court or before any other tribunal, board, agency or person, nor shall it be exhibited or its contents disclosed in any way, in whole or in part, by any officer or representative of the Department of Public Health or of any such facility. . . . (Emphasis supplied). 

 

10.   Section 19a-215, G.S., entitled “Reports of diseases on the commissioner's list of reportable diseases and laboratory findings. Confidentiality. Fines.”, provides  in relevant part as follows:

 

 

(a) For the purposes of this section:

(1) "Commissioner's list of reportable diseases and laboratory findings" means the list developed pursuant to section 19a-2a.

(2) "Confidential" means confidentiality of information pursuant to section 19a-25.

(3) "Health care provider" means a person who has direct or supervisory responsibility for the delivery of health care or medical services, including licensed physicians. . . .

(b) A health care provider shall report each case occurring in such provider's practice, of any disease on the commissioner's list of reportable diseases and laboratory findings to the director of health of the town, city or borough in which such case resides and to the Department of Public Health, no later than twelve hours after such provider's recognition of the disease. . . Such reports of disease shall be confidential and not open to public inspection except as provided in subsection (d) of this section.

(c) When a local director of health or his authorized agent or the Department of Public Health receives a report of a disease or laboratory finding on the commissioner's list of reportable disease and laboratory findings, either may contact first the reporting health care provider and then the person with the reportable finding to obtain such information as may be necessary to lead to the effective control of further spread of such disease. . . . (Emphasis supplied). 

(d) All personal information obtained from disease prevention and control investigations as performed in subsection (c) of this section including the health care provider's name and the identity of the reported case of disease and suspected source persons and contacts shall not be divulged to anyone and shall be held strictly confidential pursuant to section 19a-25, by the local director of health and his authorized agent and by the Department of Public Health. 

(e) Any person who violates any reporting or confidentiality provision of this section shall be fined not more than five hundred dollars. No provision of this section shall be deemed to supersede section 19a-584.

 

11.  Section 19a-2a, G.S., provides in relevant part as follows:

The Commissioner of Public Health shall employ the most efficient and practical means for the prevention and suppression of disease and shall administer all laws under the jurisdiction of the Department of Public Health and the Public Health Code. . . The commissioner shall have the power and duty to. . . (9) annually issue a list of reportable diseases and reportable laboratory findings and amend such list as he deems necessary. . . .

 

12.  It is found that the Commissioner’s 2009 annual list of reportable diseases and laboratory findings (the “Commissioner’s list”), referred to in paragraphs 10.a.1, 10.b, 10.c and 11, above, lists “outbreaks of food borne illnesses involving two or more persons” as a reportable disease.  It is further found that the Commissioner’s lists states that an outbreak of a food borne illness involving two or more persons must be reported “on the day of recognition” by a patient’s treating physician “to the local director of health for the town in which the patient resides.”

13.  It is found that, on February 10, 2009, the complainant’s treating physician reported to the respondent’s local health director that he believed that the complainant, her daughter and her granddaughter became sick after eating at a local Holiday Inn.

14.  It is found that, based on the report referenced in paragraph 13, above, the respondents began a food borne illness investigation.  It is further found that the purpose of the investigation was to identify the source of any food borne illness, and control further spread of any verified food borne illness.

15.  It is further found that, in connection with their investigation, the respondents generated six pages of records.

16.  At the close of the hearing on the matter, the Commission ordered the respondents to submit the records referred to in paragraph 15, above, to the Commission for an in camera review. 

17.  On September 16, 2009, the respondents submitted the records to the Commission for an in camera inspection (hereinafter the “in camera records”).  The in camera records shall be identified as IC-2009-307-1 through IC-2009-307-6.
 

18.  After a careful review of the in camera records, it is found that the records are information, records of interviews, written reports, statements, notes, memoranda or other data procured by the respondents pursuant to §19a-215, G.S., which records were created for the purpose of reducing the morbidity related to an investigation of a report of food borne illness.

19.  It is further found that the in camera records relate to a report of an outbreak of food borne illness involving two or more persons. 

20.  Based on the findings in paragraphs 12, 13, 14, 18 and 19, above, it is concluded that the in camera records are exempt from disclosure pursuant to §19a-215, G.S., within the meaning of §19a-25, G.S.

 

21.  It is therefore concluded that the requested records are exempt from disclosure pursuant to §§19a-25 and 19a-215, G.S.

 

22.   It is concluded that the respondents did not violate §§1-210(a) and 1-212(a), G.S., by declining to provide the complainant with a copy of the requested records identified in paragraph 2, above.

 

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

 

1.      The complaint is hereby dismissed. 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 28, 2009.

 

 

____________________________

S. Wilson

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:

 

 

Janice Coppola

C/o Lori D. McHugh, Esq. and

John Montalbano, Esq.

McHugh, Chapman & Montalbano, LLC

Attorneys At Law

140 Washington Street

Middletown, CT 06457

 

Supervising Sanitarian, City of Waterbury;

and City of Waterbury

C/o Kevin Daly, Esq.

Office of Corporation Counsel

City of Waterbury

26 Kendrick Avenue

Waterbury, CT 06702

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-307FD/sw/11/2/2009