FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Hillcrest Health Care Center Inc.,  
  Complainants  
  against   Docket #FIC 2004-213

State of Connecticut, Department of

Public Health, Division of Health Systems

Regulation,

 
  Respondent March 9, 2005
       

 

The above-captioned matter was heard as a contested case on August 4, 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.  It is found that the respondent is a public agency within the meaning of 1-200(1), G.S.

 

            2.  It is found that in a letter dated March 24, 2004, the complainant, through counsel, requested copies of documents (hereinafter “requested records”) from the respondent related to certain alleged violations of Connecticut statutes and regulations by the complainant.  The letter stated in pertinent part:

 

Pursuant to the provisions of Conn. Gen. Stat. 1-200 et seq., we hereby request copies of documents related to the alleged violations of the Public Health Code dated March 8, 2004 and the surveys and interviews that were the basis for these alleged violations, as follows: all surveyor notes of any kind including, but not limited to, notes of interviews, worksheets, and all other documents created or prepared by surveyors; all hospital records; and all transcripts of interviews conducted by any employee of the Department.

 

3.  It is found that in a letter dated April 5, 2004, the respondent denied the complainant’s request, stating in pertinent part:

 

Please be advised that your request pursuant to the Freedom of Information Act continues to be evaluated and you will be notified by the Department as soon as the documents are available.

 

It is my assumption that you are not expecting documents that were provided to us by your client.  Copies of depositions in this investigation that were attended by a representative of your firm will be produced as soon as they are redacted and copied.  To the extent that any other documents are relevant to ongoing practitioner investigations within the Department, such documents are not subject to the provisions of the FOIA [Freedom of Information Act] at this time, pursuant to Connecticut General Statutes 19a-14(d) and 20-13e(a).

 

 

The respondent did, however, provide copies of transcripts of certain interviews conducted by the surveyors of the respondent.

 

            4.  It is found that by letter dated and filed on May 4, 2004, the complainant appealed to the Commission, alleging that the respondent’s refusal to produce the requested documents constitutes a violation of the Freedom of Information [hereinafter “FOI”] Act.

 

5.  It is found that the complainant is a licensed chronic and convalescent nursing home located in Uncasville, Connecticut.

 

            6.  It is also found that pursuant to 19a-490 et seq., G.S., the respondent licenses and oversees health care institutions, including nursing homes.  Sections 19a-493 and 19a-498, G.S., provide that the respondent shall conduct scheduled and unscheduled inspections and investigations of nursing homes.  The respondent is authorized to inspect the premises, administer oaths and take testimony.  The respondent has two units: one unit conducts investigations of health care institutions to review the care provided by these institutions (hereinafter “the Institutions Unit”).  The other unit investigates licensed or certified health care professionals and other individual practitioners regulated by the respondent (hereinafter “the Practitioners Unit”).

 

            7.  It is further found that during the period from June 2003 through February 2004, surveyors of the respondent made multiple unannounced visits to complainant’s facility to conduct investigations pursuant 19a-493(b), G.S.  During the course of the investigations, the surveyors of the respondent reviewed clinical records, observed staff giving care, and obtained copies of records.  Copies of hospital records were also obtained.  The respondent requested and obtained additional information from the facility by telephone following the unannounced visits.  In addition, the respondent interviewed staff, attending physicians, consultants, hospital employees and employees of the management company retained by the complainant. 

 

            8.  It is found that as a result of the investigation described in paragraph 7, above, on March 8, 2004, the respondent issued a letter that identified alleged violations by the complainant of certain regulations and the Connecticut General Statutes governing chronic and convalescent nursing homes.  The violation letter was based upon the information gathered during the unannounced visits, interviews and review of records.  Also, the Institutions Unit referred the names of certain individual health care professionals to its Practitioners Unit for possible disciplinary actions against these individual licensed professionals.

 

            9.  It is found that the documents described in paragraph 7, above, are maintained or kept on file by the respondent, formed the basis for the respondent’s decision to issue the violation letter described in paragraph 8, above, and were prepared or gathered as part of the nursing home investigation.

 

10.  Section 1-200(5), G.S., defines “public records or files” as, in relevant part:

 

any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.  [Emphasis added.]

 

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

 

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.  [Emphasis added].

 

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

 

13.  It is found that to the extent records exist that are responsive to the complainant’s request, such records are “public records” within the meaning of 1-200(5) and 1-210(a), G.S.

 

            14.  Section 19a-499(b), G.S., states that all records obtained by the respondent in connection with the investigation of any licensed institution, including nursing homes, is exempt from disclosure under the FOI Act until the earlier of (1) six months from the initiation of the investigation; or (2) termination of the investigation by withdrawal or “other informal disposition;” or (3) convening a hearing.

 

            15.  Section 19a-14(d), G.S., provides that all records obtained by the respondent in connection with any investigation of individual professionals and practitioners (except for physicians) are exempt from disclosure under the FOI Act until the earlier of (1) one year from the initiation of the investigation; or (2) termination of the investigation by withdrawal or other informal disposition; or (3) convening of a hearing.

 

            16.  Section 20-13d, G.S., provides that a state or county medical society, the Medical Examining Board or any individual may file a petition with the respondent department alleging information that appears to show that a physician is or may be unable to practice medicine with reasonable skill or safety.

 

17.  Section 20-13e, G.S., provides that the respondent department must investigate each petition filed under 20-13d, G.S., to determine whether there is probable cause to issue a statement of charges.  Section 20-13e, G.S., further provides that “any such investigation shall be confidential” and that “no person shall disclose his knowledge of such investigation to a third party” unless the physician so requests.

 

18.  On the one hand, the respondent contends that the requested records were obtained by the respondent and are, therefore, exempt in part under 19a-14(d), G.S.  On the other hand, the complainant asserts that the requested records are not documents “obtained by” the respondent.  In this regard, the complainant contends that the requested records are documents created by or on behalf of the respondent - i.e., the notes and worksheets prepared by its surveyors in the course of the investigation, and transcripts of interviews prepared on behalf of the respondent.

 

            19.  It is found that the requested records were obtained or prepared in relation to, among other purposes, performing an investigation of the complainant to determine whether the complainant was in compliance with applicable regulations pursuant to 19a-493(b), G.S.

 

20.  The respondent also maintains that the requested records are not subject to the disclosure provisions of the FOI Act because it had made referrals to the Practitioners Unit for possible individual practitioner investigations pursuant to 19a-14 and 20-13e, G.S.

 

            21.  The complainants assert that the investigation of the physician, which is the basis for the exemption under 20-13e(a), G.S., by statute must apply only to the investigation conducted by the respondent’s practitioners unit.

 

            22.  It is found that the investigation described in paragraph 7, above, involved both the Institutional Unit and the Practitioners Unit and, therefore, did not constitute separate investigations.

 

            23.  With respect to the exemption described in paragraph 14, above, it is found that six months had not passed from the initiation of the investigation, the investigation was not terminated by withdrawal or other informal disposition, and a hearing was not convened.

 

            24.  With respect to the exemption described in paragraph 15, above, it is found that one year had not passed from the initiation of the investigation, the investigation was not terminated by withdrawal or other informal disposition, and a hearing was not convened.  In this regard, it is specifically found that the letter described in paragraph 8, above, does not constitute an informal disposition. 

 

            25.  With respect to the exemption described in paragraph 17, above, it is found that the complainant is a third party, and therefore, any records relating to health care officials are exempt.  In this regard, the surveyors are agents of the respondent and, therefore, the records were obtained by the respondent.

 

26.  Consequently, it is concluded that the requested records are exempt from mandatory disclosure under 19a-14(d) and 20-13e(a), G.S., and therefore, the respondent did not violate 1-210(a), G.S., when it failed to provide the complainant with a copy of the records.

 

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 March 9, 2005.

 

________________________________

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:

 

Hillcrest Health Care Center Inc.

c/o Heather O. Berchem, Esq.

Murtha Cullina LLP

Whitney Grove Square

Two Whitney Avenue

PO Box 704

New Haven, CT 06503

 

State of Connecticut, Department of

Public Health, Division of Health Systems

Regulation

c/o Henry A. Salton, Esq.

Assistant Attorney General

PO Box 120

55 Elm Street

Hartford, CT 06141-0120

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-213FD/paj/3/14/2005