FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION

 

Donald Pet,

 

Complainant

 

against Docket #FIC 86-183

 

State of Connecticut Department of Health Services,

 

Respondent October 22, 1986

 

The above captioned matter was heard as a contested case on July 30, 1986, at which time the complainant and respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. The hearing was continued until August 28, 1986, at which time the complainant and the respondent again appeared and presented testimony and argument on the complaint.

 

After consideration of the entire record the following facts are found:

 

1. The respondent is a public agency within the meaning of 1-18a(a), G.S.

 

2. By letter dated June 9, 1986 the complainant made a request of the respondent for any and all records in its files relating to its investigation of the charges brought against the the complainant by the respondent.

 

3. By letter dated June 13, 1986 the respondent replied stating that certain portions of the file would be open for inspection, however, the file also contained preliminary notes and drafts, as well as psychiatric reports, evaluations, medical records and correspondence concerning treatment which are exempt from disclosure pursuant to 1-19(b)(1), 1-19(b)(2) and 52-146(e), G.S.

 

4. By letter dated June 18, 1986 the complainat again requested access to the complete file, alleging that certain documents contained therein were not exempt from disclosure.

 

Docket #FIC 86-183 Page 2

 

5. By letter dated June 20, 1986 the respondent again denied the complainant access to the entire file, restating the exemptions enumerated in its letter of June 13, 1986.

 

6. From a denial of access to the entire file, the complainant appealed to the Commission by complaint filed on June 23, 1986.

 

7. It is found that pursuant to 19a-9 and 19a-4, G.S., the respondent has brought a proceeding to remove the license of the complainant, a psychiatrist.

 

8. It is further found that these charges stem from complaints filed by three women alleging improper conduct by the complainant during the course of treatment.

 

9. The complainant alleges that each of the three women waived the psychiatrist/patient privilege because each has placed her mental state at issue by filing a complaint with the Department of Medical Quality Assurance (hereinafter "DMQA"), alleging improper conduct by the complainant during the course of treatment.

 

10. It is found, that 52-146d to 52-146j, inclusive, provides specific requirements for patient waiver.

 

11. Pursuant to 52-146e(b), G.S., the three women in question have granted a limited waiver of the privilege.

 

12. It is concluded that the psychiatric files of the three women in question are not subject to mandatory disclosure under 1-19(a), G.S., because they filed a complaint against the complainant with DMQA.

 

13. At the hearing before the Commission, the respondent provided the complainant with a list of records in its possession concerning the investigation in question.

 

14. It is found that the following records were not disclosed to the complainant:

 

a. Transcripts of the proceedings before Hartford County Medical Association (hereinafter "HCMA");

 

b. Exhibits in proceedings before HCMA (articles, excerpts from psychiatric tests excerpts from letters written by patients to Dr. Pet, Pet's summary of patient's psychiatric history and treatment by him, Pet's clinical notes and excerpts thereof and letters of consultants on behalf of Dr. Pet);

 

Docket #FIC 86-183 Page 3

 

c. HCMA correspondence between HCMA and its attorney and HCMA and Dr. Pet;

 

d. Attorneys proposed findings of fact to HCMA Board of Directors and summations of the case;

 

e. Dr. Pet's summary of psychiatric treatment provided to insurance carrier of a patient;

 

f. Dr. Pet's psychiatric records of 2 patients;

 

g. Letters to Dr. Pet from three patients relating to therapy;

 

h. Psychiatric records of a patient - letter from Dr. Pet to subsequent treating psychiatrist discussing diagnosis or treatment;

 

i. Psychiatric records of a patient by a treating psychiatrist;

 

j. Release of information forms signed by a patient to treating psychiatrists and psychologist;

 

k. Medical records - biofeedback records of two patients - biofeedback conducted by therapist under clinical supervision of Dr. Pet;

 

l. Medical records and correspondnece by Dr. Pet to insurance carrier regarding biofeedback treatment of a patient and patient's treatment by a social worker with Dr. Pet's supervision;

 

m. Original petition of a patient to the DMQA discussing the treatment by Dr. Pet;

 

n. Psychological reports regrading a patient by a treating psychologist;

 

o. Material submitted by Dr. Pet to the Department of Health Services in his defense;

 

p. Patient's letters to Dr. Pet which were retained by him;

 

q. Psychiatric evaluation of a patient by a psychiatrist;

 

r. Depositions taken in civil lawsuits;

 

Docket #FIC 86-183 Page 4

 

s. Diaries and journals kept by patients discussing therapy and relationships with Dr. Pet;

 

t. Attorneys notes re:

 

(1) compliance conference held under 4-182(c), G.S.

 

(2) Connecticut Medical Examining Board physician of the

month consultation;

 

(3) interviews with potential witnesses;

 

(4) telephone conversations with various individuals

connected with the case;

 

(5) draft questions posed to potential witnesses in

preparation for testimony at hearing;

 

(6) notes regarding Dr. Pet's involvement in various

corporations;

 

(7) potential witnesses own draft notes for her sworn

statement;

 

(8) notes on petitioners phone numbers and addresses; and

 

(9) potential witnesses (copy) notes - timetable of

events;

 

u. Attorney memos re:

 

(1) request to Stan Peck, Division Director, DMQA for

subpoena of witnesses;

 

(2) request to Stan Peck from David Pavis, Section

Chief, for Department authorization to pay

consultants/expert witnesses; and

 

(3) memo to Christine Spak, former Section Chief

regarding a referral to the Department of Consumer

Protection for possible violation by Dr. Pet of

controlled substance statutes;

 

v. Investigator's Preliminary Investigation Report on Dr. Pet's case;

 

w. Correspondence to and from treating therapists and/or their attorneys;

 

Docket #FIC 86-183 Page 5

 

x. Department of Health Services correspondence to and from potential witnesses wherein treating therapist are named, or current mental status of the patient is discussed;

 

y. Correspondence to consultants for DMQA (some contain draft questions for direct examination);

 

z. Curriculum vitae for consultants to DMQA;

 

aa. Notes and addresses for potential witnesses; and

 

bb. Personal service contract for two consultants hired by DMQA.

 

15. With respect to paragraphs 14a through 14h, and 14n through 14p and 14r, above, it is found that the complainant has copies of those documents.

 

16. The respondent claims that the documents identified in paragraphs 14i, 14k, 14l, 14q, 14s, 14w and 14x are exempt from disclosure under 52-146(d)(2) and 52-146e, G.S.

 

17. Section 52-146(d)(2), G.S. provides in pertinent part:

 

Communication and records means 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 the 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. . .

 

18. Section 52-146e also provides in relevant part:

 

(a) all communications and records as defined in section

52-146(d) 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.

 

Docket #FIC 86-183 Page 6

 

19 It is found that the records referred to at paragraphs 14i, 14k, 14q, 14w and 14x, are written communications relating to the diagnosis or treatment of a patient's mental condition within the meaning of 52-146(d)(2), G.S..

 

20. It is therefore concluded that the documents identified in paragraph 19, above, are exempt from mandatory disclosure under 1-19a, G.S., by operation of the non-disclosure provision of 52-146e, G.S., set forth in paragraph 18, above.

 

21. With respect to paragraph 14l, above, it is found that under 52-146f(3), G.S., the following information is discloseable, ". . . the name, address and fees for psychiatric services to a patient may be disclosed to individuals or agencies involved in the collection of fees for such services. . ."

 

22. It is therefore concluded that by virtue of the limited disclosure provision of 52-146f(3), G.S., set forth in paragraph 22, above, the medical records and correspondence sent by the complainant to the patient's insurance carrier is not subject to mandatory disclosure under 1-19(a), G.S.

 

23. With respect to paragraph 14s, above, it is found that the respondent failed to prove that the requested information constitutes a "written communication relating to diagnosis or treatment," as defined by 52-146(d)(2), G.S.

 

24. The respondent claims that the records identified in paragraphs 14j, 14m and 14s and 14u(3), above, are exempt from disclosure under 1-19(b)(2), G.S.

 

25. With respect to paragraph 14j, above, it is found that the documents in question are release forms signed by the three women identified in paragraph 8, above.

 

26. It is further found that the release forms give the DMQA the authority to obtain records of treatment or diagnosis from treating psychiatrist and psychologist.

 

Docket #FIC 86-186 Page 7

 

27. It is found that those sections of the release form that refer to the patient's mental condition and refers to any psychiatrists and psychologist in connection with treatment or diagnosis constitutes a medical file, the disclosure of which constitutes an invasion of privacy as defined by 1-19(b)(2), G.S.

 

28. It is found that the remaining portions of the waiver are not exempt from disclosure pursuant to 1-19(b)(2), G.S.

 

29. With respect to paragraph 14m, above, it is found that the respondent has failed to prove that the petitions filed by the three women constitute a "similar file" within the meaning of 1-19(b)(2), G.S.

 

30. With respect to paragraph 14s, above, it is found that the complainant has a copy of the journal kept by one Sandra Wolf. However, the complainant does not have or know if the other two women kept a diary or journal discussing therapy and relationships with the complainant.

 

31. It is concluded that any diaries and/or journals in the possession of the respondent which relate to the treatment of the patient's mental condition would constitute a "similar file" the disclosure of which would constitute an invasion of personal privacy as defined by 1-19(b)(2), G.S.

 

32. It is therefore concluded that the portion of the diaries referring to the patient's treatment is exempt from mandatory disclosure under 1-19(a), G.S., by operation of the non-disclosure provision of 1-19(b)(2), G.S.

 

33. With respect to paragraph 14u(3), above, it is found that the respondent failed to prove that the referrals sent to the Department of Consumer Protection constitute "similar files" within the meaning of 1-19(b)(2), G.S.

 

34. The respondent claims that the records identified in paragraphs 14t(1) through 14t(9), 14u(1) through 14u(3), 14v, 14y, 14z, 14aa and 14bb, above, are exempt from disclosure under 1-19(b)(4), G.S.

 

35. It is found that draft questions and attorney's notes are records pertaining to strategy with respect to the attorney's claim against the complainant as defined by 1-19(b)(4), G.S.

 

Docket #FIC 86-183 Page 8

 

36. It is further found that the names of potential witnesses being subpoenaed and the name of the consultants and expert witnesses being retained by the respondent constitutes strategy with respect to a pending claim.

 

37. It is therefore concluded that the records identified in paragraphs 14t(1) through 14t(9), 14u(1) through 14u(2), 14v, 14y and 14aa are exempt from mandatory disclosure under 1-19(a), G.S., by operation of the non-disclosure provision of 1-19(b)(4), G.S.

 

38. With respect to 14u(3), above, it is found that the respondent failed to prove that the referrals sent to the Department of Consumer Protection constitute records pertaining to strategy as defined by 1-19(b)(4),G.S.

 

39. With respect to paragraphs 14z and 14bb, above, it is found that the portion of the curriculum vitae and personal services contracts which identify or name the two consultants constitutes records pertaining to "strategy" with respect to a pending claim within the meaning of 1-19(b)(4), G.S.

 

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 records more fully described in paragraphs 14j, 14z and 14bb, of the findings above.

 

2. In complying with paragraph 1 of this order, the respondent may mask or otherwise delete information which is exempt from disclosure under 1-19(b)(2) and 1-19(b)(4), G.S.

 

3. The respondent shall also provide the complainant with a copy of the records more fully described in paragraphs 14m and 14u(3), of the findings above.

 

Approved by order of the Freedom of Information Commission at its regular meeting of October 22, 1986.

 

Karen J. Haggett

Acting Clerk of the Commission