FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Priscilla Dickman,  
  Complainant  
  against   Docket #FIC 2009-541

Director, Health Affairs Policy

Planning, Department of Community

Medicine and Health Care, State of

Connecticut, University of Connecticut

Health Center; and State of Connecticut,

University of Connecticut Health Center,

 
  Respondents July 28, 2010
       

 

The above-captioned matter was heard as a contested case on December 21, 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 September 23, 2009 and filed September 24, 2009, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by not complying with an order in a final Commission decision reached in a previous complaint, which the complainant had filed against these respondents. 

3.      The Commission takes administrative notice of the final decision in Docket #FIC2008-765; Priscilla Dickman v. Director, Health Affairs Policy Planning, Department of Community Medicine and Health Care, State of Connecticut, University of Connecticut Health Center, et al. (July 8, 2009).  In the final decision, the Commission ordered the respondents to provide the complainant, within thirty days, with the emails of the following individuals, which pertain to or mention the complainant in any way, as indicated below, at no charge:  

a.             Feliciano Dias, from 2/2003 through 3/2007;

b.            Irene Kowalski, from 2/2003 through 4/2008;

c.             Margaret Swets, from 2/2003 through 4/2008;

d.            Karen Duffy Wallace, from 1/2005 through 8/2008;

e.             Joan Mazzone, from 2/2005 through 7/2007;

f.             Gary Loomis, from 1/2005 through 7/30/2007;

g.            Brian Eaton, from 2/2003 through 4/2007; and

h.            Jessica Van Alstyne, 1/2005 through 8/2008.

 

4.      In the instant case, the complainant contends that the respondents failed to comply with the Commission’s July 8, 2009 order by failing to provide her with copies of Karen Duffy Wallace’s emails, from January 2005 through August 2008. 

5.      At the non-compliance hearing in this matter, the respondents’ counsel represented that they provided the complainant with all of the records ordered to be provided by this Commission’s July 8, 2009 order, with the exception of those records that they claim are exempt from disclosure.  It is the respondents’ contention that portions of Ms. Duffy Wallace’s email are exempt from mandatory disclosure pursuant to 1-210(b)(10), G.S., 1-210(b)(1), 1-210(b)(2), G.S.; 1-210(b)(9), G.S., and the federal Health Insurance Portability and Accountability Act (hereinafter “HIPAA”).  The respondents further contend that social security numbers should be redacted from the records in accordance with Commission precedent. 

6.      At the non-compliance hearing, the hearing officer issued an order directing the respondents to submit copies of the records being claimed as exempt to the FOI Commission for an in camera inspection.

7.      On January 10, 2010, the respondents submitted the records referred to in paragraph 5, above, to the Commission for an in camera inspection (hereinafter the “in camera records”).  Such records shall be identified as IC-2009-541-1 through IC-2009-541-280.[1] 

8.      In the index submitted with the in camera records, the respondents raised additional claims of exemption pursuant to the following statutory provisions: 1-82, 1-82a, 1-93, and 1-93a, G.S.

9.      The respondents first contend that portions of the following in camera records are exempt pursuant to 1-210(b)(10), G.S.:  IC-2009-541-48 through IC-2009-541-56; IC-2009-541-62 through IC-2009-541-187; and IC-2009-541-228 through IC-2009-541-280. 

10.  Section 1-210(b)(10), G.S., permits an agency to withhold from disclosure records of “communications privileged by the attorney-client relationship.” 

11.  The applicability of the exemption contained in 1-210(b)(10), G.S., is governed by established Connecticut law defining the privilege.  That law is well set forth in Maxwell v. FOI Commission, 260 Conn. 143 (2002).  In that case, the Supreme Court stated that 52-146r, G.S., which established a statutory privilege for communications between public agencies and their attorneys, merely codifies “the common-law attorney-client privilege as this court previously had defined it.” Id. at 149.

 

12.  Section 52-146r(2), G.S., defines “confidential communications” as:

 

all oral and written communications transmitted in confidence between a public official or employee of a public agency acting in the performance of his or her duties or within the scope of his or her employment and a government attorney relating to legal advice sought by the public agency or a public official or employee of such public agency from that attorney, and all records prepared by the government attorney in furtherance of the rendition of such legal advice. . . .

 

13.  The Supreme Court has also stated that “both the common-law and statutory privileges protect those communications between a public official or employee and an attorney that are confidential, made in the course of the professional relationship that exists between the attorney and his or her public agency client, and relate to legal advice sought by the agency from the attorney.”  Maxwell, supra at 149.

14.  In the context of a public agency client communicating with its attorney by e-mail and attaching documents relevant to the legal advice sought from the attorney, it is important to note that Connecticut’s Supreme Court has said the following:

 

 As this court has long recognized, it is obvious that professional assistance would be of little or no avail to the client, unless his legal advisor were put in possession of all of the facts relating to the subject matter of inquiry or litigation, which, in the indulgence of the fullest confidence, the client could communicate.  And it is equally obvious that there would be an end run to all confidence between the client and the attorney, if the latter was at liberty or compelled to disclose facts of which he has thus obtained possession. Richard Blumenthal, Attorney General v. Kimber Manufacturing, Inc., et al., 265 Conn. 1, 15, 826 A.2d 1088, 1098 (2003) (citation and internal quotation marks omitted). 

 

15.     After a careful review of the in camera record, it is found that the following in camera records or portions thereof, evidence substantive communications that occurred by way of email between a public agency client and the agency’s various attorneys in the Office of the Attorney General:

 

IC-2009-541-48: line eight[2], words eighteen and nineteen; line nine, entire line; and line ten, words one through five;

IC-2009-541-49: lines six through eleven, the entire lines; lines eighteen through twenty-four, the entire lines; lines thirty through thirty-five, entire lines;

IC-2009-541-51 through IC-2009-541-54: all pages;

IC-2009-541-62:  lines seventeen through twenty-two, entire lines;

IC-2009-541-63, lines twenty-five through thirty-one, entire lines;

IC-2009-541-64: line forty-one, entire line;

IC-2009-541-65: entire page;

IC-2009-541-67: lines seven through thirteen, entire lines;

IC-2009-541-69: lines sixteen through twenty-three, entire lines;

IC-2009-541-70: lines ten through sixteen, entire lines;

IC-2009-541-72: lines eighteen through twenty-four, entire lines;

IC-2009-541-80: lines eight through fourteen, entire lines;

IC-2009-541-81 through IC-2009-541-85: all pages;

IC-2009-541-86: line six through thirteen, entire lines; and lines twenty through twenty-six, entire lines;

IC-2009-541-87: lines six through nine, entire lines; lines twenty-one through twenty-nine, entire lines; and lines thirty-six through forty, entire lines;

IC-2009-541-88:  lines one, entire line; and line two, entire line;

IC-2009-541-89: line six, entire line; lines twelve through fifteen, entire lines; and lines twenty-seven through thirty-five, entire lines;

IC-2009-541-90: entire page;

IC-2009-541-91: lines six through eight, entire lines; lines fourteen through twenty-two, entire lines; and lines twenty-nine through thirty-six, entire lines;

IC-2009-541-93: line six, entire line; lines eighteen through twenty-one, entire lines; and lines twenty-seven through thirty-five, entire lines;

IC-2009-541-94: lines two through nine, entire lines;

IC-2009-541-95: lines six through nine, entire lines; lines twenty-one through twenty-four, entire lines; and lines thirty through thirty-eight, entire lines; and lines thirty through thirty-eight, entire lines;

IC-2009-541-96: lines five through twelve, entire lines;

IC-2009-541-97: lines six and seven, entire lines; lines thirteen through sixteen, entire lines; lines twenty-eight through thirty, entire lines; and lines thirty-seven through forty-one, entire lines;

IC-2009-541-98: lines one through four, entire lines; and lines eleven through eighteen, entire lines;[3]

IC-2009-541-100: lines six through nine, entire lines; lines fifteen through eighteen, entire lines; lines thirty through thirty-two, entire lines; and lines thirty-nine through forty-two, entire lines;

IC-2009-541-101: lines one through five, entire lines; lines twelve through nineteen, entire lines;

IC-2009-541-103: lines six through nine, entire lines; lines fifteen through eighteen, entire lines; lines thirty through thirty-three, entire lines; and lines thirty-nine through forty-two, entire lines;

IC-2009-541-104: line one through five, entire lines; and lines twelve through nineteen, entire lines;

IC-2009-541-106: lines six through eight, entire lines; lines twenty through twenty-two, entire lines; and lines twenty-eight through thirty-one, entire lines;

IC-2009-541-107: lines two through five, entire lines; lines eleven through nineteen, entire lines; and lines twenty-six through thirty-three, entire lines;

IC-2009-541-109: line six, entire line; lines eighteen through twenty-two, entire lines; and lines twenty-eight through thirty-one, entire lines;

IC-2009-541-110: lines two through five, entire lines; lines eleven through nineteen, entire lines; and lines twenty-six through thirty-three, entire lines;

IC-2009-541-112: lines six and seven, entire lines; lines thirteen through fifteen, entire lines; lines twenty-seven through twenty-nine, entire lines; and lines thirty-five through thirty-eight, entire lines;

IC-2009-541-113: lines nine through twelve, entire lines; lines eighteen through twenty-eight, entire lines; and lines thirty-five through forty-three, entire lines;

IC-2009-541-115: lines six through seven, entire lines; lines nineteen through twenty, entire lines; lines twenty-six through twenty-eight, entire lines; and line forty, entire line;

IC-2009-541-116: lines one and two, entire lines; lines eight through eleven, entire lines; lines thirty-nine through forty-two, entire lines;

IC-2009-541-117: lines two through twelve, entire lines; and lines nineteen through twenty-seventy;

IC-2009-541-118: line six, entire line; lines twelve and thirteen, entire lines; lines twenty-five through twenty-nine, entire lines; lines thirty-five through thirty-eight, entire lines;

IC-2009-541-119: lines nine through twelve, entire lines; lines eighteen through twenty-eight, entire lines; and lines thirty-five through forty-three, entire lines;

IC-2009-541-121: line eighteen, entire line; lines twenty-four and twenty-five, entire lines; lines thirty-seven through forty-one, all lines;

IC-2009-541-122: lines six through nine, entire lines; and lines thirty-seven through forty, entire lines;

IC-2009-541-123: lines one through eleven, entire lines; lines eighteen through twenty-six, entire lines;

IC-2009-541-124: line six, entire line; lines twelve and thirteen, entire lines; lines twenty-five and twenty-six, entire lines; lines thirty-two through thirty-five, entire lines;

IC-2009-541-125: lines seven through nine, entire lines; lines fifteen through nineteen, entire lines;

IC-2009-541-126: lines six through nine, entire lines; lines fifteen through twenty-six, entire lines; lines thirty-three through forty-one, entire lines;

IC-2009-541-128: lines eighteen and nineteen, entire lines; lines twenty-five and twenty-six, entire lines; lines thirty-eight and thirty-nine, entire lines;

IC-2009-541-129: lines five through eight, entire lines; lines thirty-six through thirty-eight, entire lines; lines forty-four through forty-six, entire lines;

IC-2009-541-130: lines one and two, entire lines; lines eight through eleven, entire lines;

IC-2009-541-131: lines five through sixteen, entire lines; lines twenty-three through thirty-one, entire lines;

IC-2009-541-132: lines six and seven, entire lines; lines nineteen and twenty, entire lines; lines twenty-six through twenty-eight, entire lines; line forty, entire line;

IC-2009-541-133: lines one and two, entire lines; lines eight through eleven, entire lines; lines thirty-nine through forty-two, entire lines;

IC-2009-541-134: lines two through twelve, entire lines; lines nineteen through twenty-seven, entire lines;

IC-2009-541-135: lines six and seven, entire lines; lines thirteen through fifteen, entire lines; lines twenty-seven and twenty-eight, entire lines; lines thirty-four through thirty-seven, entire lines;

IC-2009-541-136: lines nine through eleven, entire lines; lines seventeen through twenty-one, entire lines;

IC-2009-541-137: lines six through nine, entire lines; lines fifteen through twenty-six, entire lines; lines thirty-three through thirty-nine, entire lines;

IC-2009-541-138:  lines one and two, entire lines;

IC-2009-541-140: lines fourteen through twenty, entire lines;

IC-2009-541-143: lines six through ten, entire lines; lines fifteen through nineteen, entire lines;

IC-2009-541-144: line eleven and twelve, entire lines; line eighteen through twenty-two, entire lines; line twenty-seven through thirty-one, entire lines;

IC-2009-541-145:  line six and seven, entire lines;

IC-2009-541-146: lines six through eight, entire lines; line thirteen and fourteen, entire lines;

IC-2009-541-147: line six, entire line; lines twelve and thirteen, entire lines;

IC-2009-541-148: line eleven, entire line; lines seventeen and eighteen, entire lines;

IC-2009-541-149: line eleven, entire line, lines seventeen and eighteen, entire lines;

IC-2009-541-150: lines seven and eight, entire lines; line thirteen, entire line; line nineteen and twenty, entire lines;

IC-2009-541-152 through IC-2009-541-55:  all pages;

IC-2009-541-157: lines eight and nine, entire lines;

IC-2009-541-159 through IC-2009-541-162: all pages;

IC-2009-541-163: line seven, entire line; lines fifteen and sixteen, entire lines;

IC-2009-541-164: line thirteen, entire line; lines twenty-one and twenty-two, entire lines;

IC-2009-541-165: line six, entire line; lines thirteen through fifteen, entire lines; lines twenty-six through twenty-seven, entire lines;

IC-2009-541-166: lines seven through twelve, entire lines;

IC-2009-541-167: lines twelve through seventeen, entire lines;

IC-2009-541-168: lines nineteen through twenty-four, entire lines;

IC-2009-541-170 through IC-2009-541-182:  all pages;

IC-2009-541-184 through IC-2009-541-187:  all pages;

IC-2009-541-229 through IC-2009-541-237:  all pages;

IC-2009-541-239 through IC-2009-541-247: all pages;

IC-2009-541-249 through IC-2009-541-258:  all pages;

IC-2009-541-262 through IC-2009-541-266:  all pages;

IC-2009-541-267: lines six through nine, entire lines; lines seventeen through eighteen, entire lines;

IC-2009-541-268: lines seven through nine, entire lines; lines fourteen through sixteen, entire lines; lines twenty-two through twenty-three, entire lines; lines twenty-nine through thirty-five, entire lines;

IC-2009-541-270: line eight, entire line;

IC-2009-541-271: lines seven through eleven, entire lines;

IC-2009-541-272:  lines fifteen through twenty, entire lines;

IC-2009-541-273: lines six through nine, entire lines; lines fourteen through twenty-two, entire lines;

IC-2009-541-274: lines four through eight, entire lines;

IC-2009-541-275: lines twenty-six through twenty-nine, entire lines; lines thirty-four through forty-one, entire lines;

IC-2009-541-276: line one, entire line; lines twenty-four and twenty-eight, entire lines;

IC-2009-541-277: lines thirteen through twenty-seven, entire lines;

IC-2009-541-278: lines seven and eight, entire lines; lines fourteen through thirty-four, entire lines;

IC-2009-541-279: lines ten through thirteen, entire lines; lines eighteen through twenty-six, entire lines;

IC-2009-541-280: lines seven through eleven, entire lines.

 

16.  Based on the testimony at the non-compliance hearing on December 21, 2009, it is found that the portions of the in camera records referenced in paragraph 15, above, evidence written communications transmitted in confidence between counsel and public officials or other employees acting within the scope of their employment with the respondent agency. 

17.  It is further found that the records relate to legal advice sought by the public officials and/or employees of the public agency from their attorneys, and received by the public officials and employees from said attorneys.  It is further found that the records were transmitted between public officials and employees and their attorneys via email, and, in some instances, documents that were relevant and necessary to the privileged communications were appended to the emails.

18.  It is found that Karen Duffy Wallace is a member of the bar in the State of Connecticut.  It is further found that, while the respondents did not consider Attorney Duffy Wallace as their counsel, Attorney Duffy Wallace was, in many instances, the respondent official communicating with counsel for the respondents for the purpose of obtaining legal advice and relaying said advice back to the respondents.  It is further found that Attorney Wallace initiated communication with the counsel for the purpose of obtaining legal advice for the respondents at their behest on agency related matters.

19.  Finally, it is found that the respondents did not waive the privilege. 

 

20.  It is concluded that the portions of the in camera records identified in paragraph 15, above, fall within the protection of the attorney-client privilege and are exempt from disclosure. 

 

21.  Accordingly, it is concluded that the respondents did not violate the FOI Act as alleged by the complainant with regard to those portions of the in camera records set forth in paragraph 15, above.

 

22.  However, it is found that, other than the portions of the in camera records specifically identified in paragraph 15, above, the records identified in paragraph 9, above,  do not contain information that is exempt from disclosure pursuant to the attorney-client privilege. 

 

23.  Based on the finding in paragraph 22, above, it is concluded that the records identified in paragraph 9, other than those portions specifically identified in paragraph 15, above, are not exempt from mandatory disclosure as records privileged by the attorney-client privilege pursuant to 1-210(b)(10), G.S.

24.  The respondents next contend that portions of the following in camera records are exempt pursuant to 1-210(b)(1), G.S.: IC-2009-541-45 through IC-2009-541-47; IC-2009-541-49 through IC-2009-541-61; IC-2007-541-70 through IC-2009-541-138; IC-2009-541-143 through IC-2009-541-187; and IC-2009-541-228 through IC-2009-541-266. 

 

25.  Section 1-210(b)(1), G.S., states that the FOIA shall not require mandatory disclosure of:

 

preliminary drafts or notes provided the public agency has

determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure….

26.  Section 1-210(e)(1), G.S., additionally, provides in pertinent part that:

 

[D]isclosure shall be required of (1) interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency….

27.  The respondents testified that the in camera records identified in paragraph 24, above, concern the preliminary notes of an investigator conducting an investigation into an employee’s conduct.
 

28.  It is found that the respondents’ procedure for investigating employee conduct includes having the investigator interview as many individuals as possible.  The respondents further testified that the investigator takes notes during such interviews for the purpose of preparing a final investigatory report.  The respondents conceded, however, that, because the requested records are not handwritten notes, but emails, the in camera records identified in paragraph 24, above, were not maintained by the investigator for his or her personal reference, but rather were distributed to at least one other party. 

29.  After a careful review of the in camera records, it is found that none of the in camera records identified in paragraph 24, above, can fairly be described as “notes” of an investigator.  It is further found that the necessary circulation of these emails negates their preliminary or “for personal use” nature.  See Strillacci, Chief of Police v. FOIC, CV084018120S, 2009 Conn. Super. LEXIS 1046, at *4 and *6 (Conn. Super. Ct. Apr. 20, 2009) (finding that “[a] preliminary document is one containing data not required or germane to the eventual purpose for which [it] was undertaken and it was thereafter modified to excise the material that was irrelevant to its. . . purpose” and concluding that the word-processed records at issue were not preliminary, but rather were completed documents to be used by the plaintiff within the course of his public duties), quoting Van Norstrand v. FOIC, 211 Conn. 339, 343, 559 A.2d 200 (1989).

 

30.  Based on the finding at paragraph 29, above, it is concluded that the records identified in paragraph 24, above, are not exempt from mandatory disclosure pursuant to 1-210(b)(1), G.S.

 

31.  The respondents next contend that portions of the following in camera record are exempt from disclosure pursuant to 1-210(b)(2), G.S.:  IC-2009-541-140.  However, the portions of this record that the respondents contend are exempt from disclosure based on an invasion of personal privacy pursuant to 1-210(b)(2), G.S., have been found to be exempt pursuant to a privileged attorney-communication in paragraph 15, above.  It is therefore unnecessary to address the applicability of 1-210(b)(2), G.S.

 

32.  The respondents next contend that portions of the following in camera records are exempt pursuant to 1-210(b)(9), G.S.: IC-2009-541-1 through IC-2009-541-44.

 

33.  Section 1-210(b)(9), G.S., provides in relevant part that nothing in the FOI Act shall be construed to require the disclosure of “records, reports and statements of strategy or negotiations with respect to collective bargaining. . . .”

 

34.  After a careful review of the in camera records identified in paragraph 32, above, it is found that the following records, or portions thereof, consist of strategy or negotiations with respect to collective bargaining: 

 

IC-2009-541-1:  lines thirty-eight and thirty-nine, entire lines;

IC-2009-541-2: lines six through ten, entire lines; lines twenty-four through thirty-one, entire lines;

IC-2009-541-3: lines two through ten, entire lines;

IC-2009-541-4: line forty-five, entire line;

IC-2009-541-5: line one, entire line; lines twelve through sixteen, entire lines; lines thirty through thirty-seven, entire lines;

IC-2009-541-6: lines eight through sixteen, entire lines;

IC-2009-541-8: lines seven through eight, entire lines; lines nineteen through twenty-four, entire lines; lines thirty-eight through forty-three, entire lines;

IC-2009-541-9: lines one through three, entire lines; lines seventeen through twenty-five, entire lines;

IC-2009-541-11: lines one and two, entire lines; lines thirteen through eighteen, entire lines; lines thirty-two through forty, entire lines;

IC-2009-541-12: lines ten through eighteen, entire lines;

IC-2009-541-14: lines twenty-two through twenty-three, entire lines; lines thirty-four through thirty-nine, entire lines;

IC-2009-541-15: lines eight through seventeen, entire lines; lines thirty-one through forty, entire lines;

IC-2009-541-17: lines thirty-three through thirty-four, entire lines; lines forty-five and forty-six, entire lines;

IC-2009-541-18: lines one through five, entire lines; lines nineteen through twenty-eight, entire lines; lines forty-two through forty-seven, entire lines;

IC-2009-541-19: lines one through four, entire lines;

IC-2009-541-21: lines thirty-eight through thirty-nine, entire lines;

IC-2009-541-22: lines four through ten, entire lines; lines twenty-four through  thirty-four, entire lines;

IC-2009-541-23: lines three through thirteen, entire lines;

IC-2009-541-25: forty-two and forty-three, entire lines;

IC-2009-541-26: lines ten through fourteen, entire lines; lines twenty-eight through thirty-three, entire lines;

IC-2009-541-27: lines six through twelve, entire lines;

IC-2009-541-30: lines three and four, entire lines; lines fifteen through nineteen, entire lines; lines thirty-three through thirty-eight, entire lines;

IC-2009-541-31: lines eleven through seventeen, entire lines;

IC-2009-541-34: lines three and four, entire lines; lines fifteen through nineteen, entire lines; lines thirty-three through thirty-eight, entire lines;

IC-2009-541-35: lines eleven through seventeen, entire lines;

IC-2009-541-38: lines one through three, entire lines; lines fourteen through twenty, entire lines; lines thirty-five through forty-five, entire lines;

IC-2009-541-39: line one, entire line; lines seventeen through twenty-nine, entire lines; IC-2009-541-42: lines thirteen through fifteen, entire lines; lines twenty-six through thirty-two, entire lines;

IC-2009-541-43: lines four through eighteen, entire lines; lines thirty-five through forty-seven, entire lines; and

IC-2009-541-44: lines one through three, entire lines. 

 

35.  It is concluded that the portions of the in camera records identified in paragraph 34, above, are exempt from mandatory disclosure pursuant to 1-210(b)(9), G.S.

 

36.  Accordingly, it is concluded that the respondents did not violate the FOI Act as alleged by the complainant with regard to those portions of the in camera records set forth in paragraph 34, above.

 

37.   It is further concluded, however, that, other than the portions of the in camera records specifically identified in paragraph 34, above, the records identified in paragraph 32, above, do not contain information that is exempt from disclosure pursuant to 1-210(b)(9), G.S. 

 

38.  The respondents next contend that some of the in camera records are exempt from disclosure pursuant to HIPAA. 

 

39.  The respondents testified that, as they understood the law, HIPAA’s federal statutory scheme is accompanied by a set of regulations that protect clinical information of patients.  The respondents further testified that, when a health care facility, like the respondent agency, is a provider of health care services or is receiving information from other health care providers, such a facility has an obligation to protect the information, unless it receives permission from the individuals receiving health care services to release their information. 

 

40.  It is found that HIPAA was enacted to safeguard medical information and “to improve the efficiency and effectiveness of the health care system by facilitating the electronic exchange of information with respect to financial and administrative transactions carried out by health plans, health care clearinghouses, and health care providers.”  See Standards of Privacy of Individually Identifiable Health Information, 67 Fed. Reg. 14776 (Mar. 27, 2002). 

 

41.  It is found that HIPAA applies to any entity that is: a health care provider that conducts certain transactions in electronic form; a health care clearinghouse; or a health plan.  See 45 C.F.R. 160.103 (2010).  It is found that an entity that is one or more of these types of entities is referred to as “a covered entity” in the Administrative Simplification regulations that govern HIPAA and are required to comply with those regulations.  See 45 C.F.R. Parts 160, 162, and 164) (2010). 

 

42.  While it is found that the respondent University of Connecticut Health Center is a covered entity and is required to comply with HIPAA regulations, it is found that the respondents failed to prove that any of the in camera records constitute “protected health information” within the meaning of the HIPAA regulations.  In this regard, it is further found that the respondents did not identify by testimony or by way of their in camera submission which records, or parts thereof, they believe are exempt from disclosure pursuant to HIPAA regulations.  It is further observed that the respondents’ in camera index does not mention HIPAA, the federal Health Insurance Portability and Accountability Act, or any federal regulation at all. 

 

43.  Moreover, it is found that, although the respondent University of Connecticut Health Center is a “covered entity,” for purposes of HIPAA, 45 C.F.R. 164.512(a)(1) provides in relevant part:

 

(a)    Standard:  Uses and disclosures required by law.

(1)   A covered entity may use or disclose protected health information to the extent that such use or disclosure is required by law and use or disclosure complies with and is limited to the relevant portions of such law.

 

44.  It is further found that 45 C.F.R. 164.103 defines “required by law” as:

 

a mandate contained in law that compels an entity to make a use or disclosure of protected health information and that is enforceable in a court of law [which includes]. . . but is not limited to. . . an administrative body authorized to require the production of information. . . and statutes or regulations that require the production of information. . . .

 

45.  It is concluded that the FOI Act requires by law the disclosure of non-exempt requested records, within the meaning of 45 C.F.R. 164.103.  See State of Nebraska ex re. Adams County Historical Society v. Kinyoun, 277 Neb. 749 (2009); Abbott v. Texas Dep’t of Mental Health, 212 S.W. 3rd 648 (Tex. 2006); State ex rel. Cincinnati Enquirer v. Daniels, 108 Ohio St. 3d 518 (2006) (state public records laws which require disclosure of records are not in conflict with HIPAA privacy rules exceptions, even for covered entities).  Accordingly, it is concluded that none of the in camera records are exempt pursuant to HIPAA regulations. 

46.  Finally, by way of the in camera index submitted with the in camera records, the respondents contend that the records are exempt pursuant to 1-82, 1-82a, 1-93, G.S., and 1-93a, G.S.:  IC-2009-541-45 through IC-2009-541-47 and IC-2009-541-188 through IC-2009-541-227.

47.  Sections 1-82(e), G.S. and 1-82a(b), (d), and (e), G.S., respectively, provide in relevant part as follows:

 

(e) . . . After receipt of information from an individual under the provision of this part, the Office of State Ethics shall not disclose the identity of such individual without his consent unless the Office of State Ethics determines that such disclosure is unavoidable during the course of an investigation.

 

(b) An investigation conducted prior to a probable cause finding shall be confidential except upon the request of the respondent.  If the investigation is confidential, the allegations in the complaint and any information supplied to or received from the commission shall not be disclosed during the investigation to any third party by a complainant, respondent, witness, designated party, or commission or staff member.

(d) If the commission makes a finding of no probable cause, the complainant and the record of its investigation shall remain confidential, except upon the request of the respondent and except that some or all of the record may be used in subsequent proceedings.  No complainant, respondent, witness, designated party, or commission or staff member shall disclose to any third party any information learned from the investigation, including knowledge of the existence of a complaint, which the disclosing party would not otherwise have known.  If such a disclosure is made, the commission may, after consultation with the respondent if the respondent is not the source of the disclosure, publish its findings and a summary of its reasons therefore.

(e) The commission shall make public a finding of probable cause not later than five business days after the termination of the investigation.  At such time the entire record of the investigation shall become public, except that the commission may postpone examination of the release of such public records for a period of not to exceed fourteen days for the purpose of reaching a stipulation agreement pursuant to subsection (c) of section 4-177.

 

48.  It is found that 1-82, G.S., and 1-82a, G.S., apply to the Office of State Ethics’ investigations concerning allegations of ethical violations by individuals subject to the Code of Ethics.  See, e.g. Merchant v. State Ethics Comm’n, 53 Conn. App. 808, 814, 733 A.2d 287 (1998) (“Section 1-82 of the ethics code provides the procedure to be used when a complaint has been filed against a public official alleging that the public official engaged in any of the prohibited activities.”); see also Conn. Gen Stat. 1-82(c).   However, the Commission takes administrative notice of the fact that, on August 13, 2009, a trial judge referee made a finding of probable cause in the Office of State Ethics’ investigation in which the complainant was the subject.

  

49.  Based on the finding at paragraph 48, above, it is concluded that, as of August 13, 2009, the records identified in paragraph 46, above, were no longer exempt from mandatory disclosure pursuant to 1-82, G.S., or 1-82a, G.S.

 

50.  Finally, with regard to 1-93, G.S., and 1-93a, G.S., it is found that these two statutory provisions relate to the Office of State Ethics’ investigations pertaining to lobbyists and lobbying activities.  It is further found that nothing in the in camera records identified in paragraph 46, above, pertains to lobbyists or lobbying activities.  Therefore, it is found that 1-93, G.S., and 1-93a, G.S., are not applicable to the records at issue. 

51.  Based on the findings in paragraph 50, above, it is concluded that the records identified in paragraph 46, above, are not exempt from mandatory disclosure pursuant to 1-93, G.S., or 1-93a, G.S.

52.  Based on the conclusions in paragraphs 23, 30, 37, 45, and 51, above, it is further concluded that the requested records are subject to mandatory disclosure, except for those portions of the records specifically identified as exempt from disclosure in paragraphs 15 and 34, above.  It is further concluded that the respondents violated 1-210(a) and 1-212(a), G.S., when they declined to provide such records to the complainant.

53.    The Commission would be remiss in its obligations if it did not address the fact that all of the exemptions addressed in the context of this non-compliance hearing should have been raised during the contested case hearing in Docket #FIC2008-765; Priscilla Dickman v. Director, Health Affairs Policy Planning, Department of Community Medicine and Health Care, State of Connecticut, University of Connecticut Health Center, et al., which hearing occurred on March 17, 2009.  The fact that the respondents raised no exemptions to disclosure at the contested hearing in Docket #FIC2008-765, but raised nine exemptions to disclosure in the context of a non-compliance hearing demonstrates a troubling lack of understanding with regard to the FOIC’s administrative procedure, particularly the contested case proceeding.  For this reason, the Commission finds that it is appropriate to order the respondents to participate in an FOI education class.

 

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

 

1.      The respondents shall forthwith provide to the complainant, free of charge, a copy of all requested records that have not been previously provided, except for those portions of the in camera records specifically identified in paragraphs 15 and 34 of the findings, above.

 

2.      Consistent with Commission precedent, the respondents may redact social security numbers from the requested records, prior to providing such records to the complainant. 

3.      Forthwith, the respondent Director, or his designee, shall arrange for an FOI Act training session to be conducted by the staff of the FOI Commission.  The respondent Director, or his designee, shall forthwith contact the FOI Commission to schedule such training session.

4.      Henceforth, the respondents shall strictly comply with the provisions of 1-210(a), and 1-212(a), G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 28, 2010.

 

 

____________________________

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:

 

Priscilla Dickman

2534 Boston Turnpike

Coventry, CT 06238

 

Director, Health Affairs Policy

Planning, Department of Community

Medicine and Health Care, State of

Connecticut, University of Connecticut

Health Center; and State of Connecticut,

University of Connecticut Health Center

c/o Donald R. Green, Esq.

Assistant Attorney General

University of CT Health Center

263 Farmington Avenue, LM-3803

Farmington, CT 06030-3803

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2009-541FD/paj/8/3/2010

                                                                                   

 



[1] The Commission notes that the in camera records referred to in paragraph 7, above, are comprised of 121 different documents.  The Commission also notes that the respondents numbered the individual documents, but failed to number sequentially each of the pages comprising these documents.  So that the Commission may consider the exemptions claimed in this case, on a page-by-page basis, it was necessary to number each page of each document.  Accordingly, the hearing officer penciled-in a page number for each of the in camera records in the respondents’ submission. In the future, the respondents must number each page of all records submitted to the Commission for in camera review.  (See 1-21j-37(f)(2), Reg. of State Agencies). 

[2] For the convenience of the parties who will be referring to the page/line/word reference in this Order, the Commission notes that the line numbers were also inserted into the in camera record by counsel to the Commission.  Line one is the very first line of information listed on the record, which in most instances is the name “Wallace, Karen Duffy"—the person whose email was requested by the complainant.

[3] The Commission notes that IC-2009-541-99, like many other records in this submission, contains merely a date and a page number, with no substantive information.  The respondents should not have included such pages in their in camera submission.  For the benefit of the complainant, the Commission further notes that, while the list of exempt material in this section appears to be extensive, the submission is replete with multiple copies of the same record.  For example, IC-2009-541-62, IC-2009-541-63, IC-2009-541-67, and IC-2009-541-69 all contain the same privileged communication.