FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

 

The above-captioned matter was heard as a contested case on April 6, 2010, at which time the complainant and the respondents appeared 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.  It is found that, by letter dated October 9, 2009, the complainant requested “all information related to [an] incident [in which a Rite Aid Pharmacy filled a prescription with the wrong medication], including, but not limited to, documentation of my initial complaint and information I provided, the resulting investigation, and any enforcement actions.”

 

3.  It is found that, by letter dated October 21, 2009, the respondents informed the complainant that the request, described in paragraph 2, above, had been received, but that the records responsive to such request were exempt from disclosure pursuant to §20-578, G.S.

 

4.  By letter dated November 18, 2009, and filed November 19, 2009, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with the request for records described in paragraph 2, above.

 

            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 (1) inspect such records promptly during regular office or business hours . . . (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 the records described in paragraph 2, above, are public records within the meaning of §1-200(5), G.S., and must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.

 

      9.  Section 20-578(a), G.S., provides, in relevant part:

 

Information received by the department [of consumer protection], the commission [of pharmacy] or the Department of Public Health, through filed reports or inspection or as otherwise authorized under chapters 418 and 420b and sections 20-570 to 20-630, inclusive, shall not be disclosed publicly in such a manner as to identify individuals or institutions, except:  (1) In a proceeding involving the question of licensure or the right to practice, and (2) in a proceeding where the commission has voted in favor of formal disciplinary action against a pharmacist or pharmacy licensed pursuant to chapter 400j, when such disciplinary action is related to an error in the dispensing of medication. 

 

            10.  It is found that, on or about March 27, 2009, the complainant filed a complaint by telephone with the respondent Department of Consumer Protection (“DCP”) alleging an error in the filling of a prescription medication obtained by him at a Rite Aid Pharmacy in New Britain, Connecticut.  It is further found that, in response to such complaint, the respondent DCP conducted an investigation, and that the respondents maintain records of such investigation.

 

      11.  It is found that the investigation, described in paragraph 10, above, did not result in (1) “a proceeding involving the question of licensure or the right to practice,” or (2) “a proceeding where the commission has voted in favor of formal disciplinary action against a pharmacist or pharmacy…when such disciplinary action is related to an error in the dispensing of medication,” within the meaning of §20-578(a), G.S. 

 

      12.  It is found that the request, described in paragraph 2, above, is a targeted request (i.e. one that names the individuals and institutions involved), and that it would therefore be impossible for the respondents to comply with such request without identifying individuals or institutions, even if such records were redacted.  In light of the finding in paragraph 11, above, it is found that the records described in paragraph 2, above, are exempt from disclosure pursuant to §20-578(a), G.S.

 

      13.  It is therefore concluded that the respondents did not violate the FOI Act in refusing to provide the complainant with copies of the records described 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 dismissed.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 23, 2010.

 

 

 

____________________________

Cynthia A. Cannata

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:

 

Orlando Rinaldini

c/o Jeffrey F. Gostyla, Esq. and

Meg Reid, Esq.

Halloran & Sage, LLP

One Goodwin Square

225 Asylum Street

Hartford, CT  06103

 

Commissioner, State of Connecticut, Department of Consumer Protection; and

State of Connecticut, Department of Consumer Protection

c/o Matthew F. Fitzsimmons, Esq.

Assistant Attorney General and

Thomas J. Saadi, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT  06105

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

FIC/2009-701/FD/cac/6/28/2010