FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Jessica Crowley and Isabella O’Malley,  
  Complainants  
  against    Docket #FIC 2007-123

Commissioner, State of Connecticut,

Department of Public Health,

 
  Respondent August 8, 2007
       

 

The above-captioned matter was heard as a contested case on June 25, 2007, at which time 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)(A), G.S.

 

2.      It is found that, by letter dated December 21, 2006, the complainants made a written request for records relating to the respondent’s investigation of Access Ambulance Company, Stamford Hospital, and several individuals, including the complainants.

 

3.      It is found that, over the ensuing months, the complainants and the respondent negotiated the respondent’s compliance with the complainants’ request for records.

 

4.       It is found that the respondent ultimately provided many of the records to the complainants.

 

5.      Nevertheless, the parties could not reach agreement on some of the records requested by the complainants. By letter dated February 26, 2007 and filed February 27, 2007, the complainants appealed to this Commission, alleging that the respondent violated the Freedom of Information (FOI) Act by failing to provide promptly all of the records described in paragraph 2, above.

 

6.      At the hearing in this matter, the parties agreed that the only records that remained in dispute were 11 pages, entitled “Surveyor Notes Worksheet.” 

 

7.      It is found that the respondent provided the complainant with heavily redacted copies of the records described in paragraph 6, above. The redacted copies were entered into evidence as complainant’s Exhibit “H.”

 

8.      After the hearing in this matter, the respondent submitted unredacted copies of the disputed records, described in paragraph 6, above, for in camera inspection, which pages shall be identified herein as IC-2007-123-1 through IC-2007-123-12.

 

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

 

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.

 

10.  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 . . .  receive a copy of such records in accordance with section 1-212. (Emphasis added.)

 

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

 

12.   It is found that the records described in paragraph 2, above, are public records within the meaning of 1-200(5) and 1-210(a), G.S.

 

13.   The respondent contends that the records in dispute are exempt from disclosure, pursuant to 52-146(e), G.S.

 

14.    Section 52-146(e), G.S., provides in relevant part:

 

All communications and records as defined in section 52-146d shall be confidential … [N]o 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.

 

15.   Section 52-146(d)(2), G.S., defines “communications and records” as:

 

[A]ll 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… .

 

16.    Section 52-146(d)(1), G.S., states “authorized representative means … if a patient is deceased, his personal representative or next of kin.”

 

17.    It is found that the patient referenced in the records described in paragraph 8, above, is deceased.

 

18.    It is found, further, that the complainants submitted no evidence that the patient’s “authorized representative” consented to the disclosure of the contested records, pursuant to 52-146(e), G.S.

 

19.    The complainants contend that the statute does not apply to the contested records because they were not created during diagnosis and treatment of the patient, but, rather, were compiled by the respondent’s investigator in the course of her investigation of an incident that occurred while the patient was being transferred by ambulance from Stamford Hospital to another health care facility.

 

20.    In the alternative, the complainants contend that the respondent redacted more than was necessary to adhere to the confidentiality requirements of 52-146, G.S.

 

21.    Upon careful examination of IC-2007-123-1 through IC-2007-123-12, it is found that the records consist of four pages of “record review” by the surveyor and seven pages of interview notes. The twelfth page is unrelated to the contested records and was submitted in error.

 

22.    It is found that the surveyor is an investigator for the respondent.

 

23.    It is found that the first two pages of the four-page “record review” were redacted entirely. It is found that those pages consist of notes written by the surveyor upon her review of the patient’s medical record. It is found that the first two pages are the surveyor’s verbatim copy of portions of a physician’s record of his diagnosis and treatment of the patient.

 

24.   It is found that the verbatim copy of portions of the patient’s medical record constitutes a “communication and record thereof relating to diagnosis or treatment of a patient’s mental condition,” within the meaning of 52-146(d), G.S.

 

25.   It is found that the redactions of the verbatim copy of portions of the patient’s medical record are deemed confidential, pursuant to 52-146(e), G.S., which prohibits the disclosure of “the substance [of the patient’s psychiatric communications] or any part or any resume thereof which identify a patient….”

 

26.    It is found that the respondent redacted nothing from the last two pages of the “record review.”

 

27.    It is found that, with the exceptions noted in paragraph 33, below, all redactions by the respondent in the seven-page record of the surveyor’s written notes of her interviews of hospital personnel qualify as “communication and records thereof relating to diagnosis or treatment of a patient’s mental condition,” within the meaning of 52-146(d)(2), G.S. 

 

28.    The complainants contend that because the respondent redacted the patient’s name, the remaining redactions were unnecessary to protect the patient’s identity.

 

29.    Section 52-146(d)(4), G.S., however, defines, in relevant part, records that “identify a patient” as:

 

communications and records which contain (A) names or other descriptive data from which a person acquainted with the patient might reasonably recognize the patient as the person referred to.

 

30.   It is found that, with the exceptions noted in paragraph 33, below, the redacted portion of the in camera records contain “descriptive data from which a person acquainted with the patient might reasonably recognize the patient as the person referred to,” within the meaning of 52-146(d)(4), G.S.

 

31.  At the hearing in this matter, the issue was raised that a previous disclosure by an employee of the respondent of some portions of the patient’s confidential medical records constituted a waiver of confidentiality as to the communications and records of diagnosis and treatment described in the redacted pages of IC-2007-123-1 through IC-2007-123-11. It is concluded, however, that the privilege of confidentiality established by 52-146(e), G.S., is not the respondent’s to waive. It is further concluded that any previous disclosure by the respondent, without the consent of the patient or his or her authorized representative, was erroneous and did not waive the confidentiality of the patient’s psychiatric records.

 

32.  Accordingly, it is concluded that, with the exceptions noted in paragraph 33, below, 52-146(e), G.S., prohibits disclosure under the FOI Act of the redacted portions of IC-2007-123-1 through IC-2007-123-11. It is concluded that the respondent did not violate the FOI Act with respect to such records.

 

33.    It is found that two sentences in IC-2007-123-6 (identified as “page 2 of 7”), do not constitute “communications and records thereof relating to diagnosis or treatment of a patient’s mental condition,” pursuant to 52-146, G.S. The first sentence begins with the last two words before the right margin of line 11, counting line 1 as the line with the title “DOCUMENTATION.”  The second sentence begins at the second word from the left margin of line 16, counting line 1 as the line with the title “DOCUMENTATION.”

 

34.    It is concluded, therefore, that 52-146(e), G.S., does not mandate the confidentiality of the statements described in paragraph 33, above.

 

35.    Accordingly, it is concluded that 52-146, G.S., does not exempt from disclosure under the FOI Act the records described in paragraph 33, above.

 

36.    The respondent contends, however, that 1-210(b)(2), G.S., exempts the contested records from mandatory disclosure under the FOI Act.

 

37.    Section 1-210(b)(2) provides that a public agency need not disclose “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .”

 

38.    Assuming, without finding, that the statements described in paragraph 33, above, constitute medical records within the meaning of 1-210(b)(2), G.S., the test for determining whether the disclosure of such records would legally constitute an “invasion of privacy,” pursuant to 1-210(b)(2), G.S., is set forth in Perkins v. Freedom of Information Commission, 228 Conn. 158 (1993).

 

39.    It is concluded, therefore, that disclosure of the requested records described in paragraph 33, above, would not be an invasion of personal privacy, because no such privacy right exists with respect to the deceased. See Docket #FIC1999-019, David K. Jaffe v. State of Connecticut, Connecticut Lottery Corporation. (Disclosure of deceased employee’s personnel files would not be an invasion of privacy because privacy rights terminate at death.)

 

40.   Accordingly, it is concluded that the records described in paragraph 33, above, are not exempt from mandatory disclosure under the FOI Act.

 

41.  It is further concluded that the respondent violated 1-210(a)(1) and 1-212(a), G.S., by failing to provide the complainants with copies of the requested records, described in paragraph 33, above.

 

 

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 remove the redactions as described in paragraph 33 of the findings, above, and provide a copy of the page at issue to the complainants, free of charge.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 8, 2007.

 

 

_______________________________

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:

 

Jessica Crowley and Isabella O’Malley

c/o David Burke, Esq.

695 East Main Street

PO Box 10305

Stamford, CT 06904-2305

 

Commissioner, State of Connecticut,

Department of Public Health

c/o Daniel Shapiro, Esq.

Assistant Attorney General

PO Box 120

Hartford, CT 06141-0120

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-123FD/paj/8/20/2007