FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Lamberto Lucarelli,

 
  Complainant  
  against   Docket #FIC 2010-068
Chief, Police Department, Town of Old
Saybrook; and Police Department, Town
of Old Saybrook,
 
  Respondents December 15, 2010
       

 

The above-captioned matter was heard as a contested case on September 23, 2010, 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.      It is found that on January 30, 2010, the complainant requested copies of over 30 incident reports.

 

3.      By letter filed on February 3, 2010, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide the records he requested, described in paragraph 2, above. 

 

4.      Section 1-200(5), G.S., defines “public records” as follows:

 

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, …whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

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

 

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 inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212.

 

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

 

7.       It is concluded that the records requested by the complainant are public records within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

8.      It is found that on March 8, 2010, the respondents provided copies of all the records that the complainant requested, except for three incident reports: 

 

a.       Court Issued Order Compl./Frightened Person Compl. 8/30/2008;

 

b.      Incident Report 2008-000010026; and

 

c.       Incident Report 2004-000002500.

 

9.      With respect to the records described in paragraph 8.a, above, it is found that the respondents believed that they provided copies of such records to the complainant with the 70 other pages of records provided on March 8, 2010.  Nevertheless, the respondents provided a copy of the records to the complainant at the hearing in this matter. 

 

10.   With respect to the records described in paragraph 8.b, above, it is found that the respondents claim the records contain medical information protected from disclosure pursuant to 1-210(a), G.S., and the Federal Health Insurance Portability and Accountability Act (HIPAA), Pub. L. 104-191.  The respondents submitted the records to the Commission for in camera inspection.  Such records are hereby identified as IC-2010-068-1 through IC-2010-068-3. 

 

11.   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.  It is found that an entity that is one or more of these types of entities is a "covered entity" required to comply with HIPAA.  45 C.F.R. 160.103, 45 C.F.R. 164.502.

 

12.   It is found that the respondents are not a health care clearinghouse, a health plan, or a health care provider.  It is found, therefore, that the respondents are not “covered entities” required to comply with the HIPAA regulations. 

 

13.   Moreover, it is found that even if the respondents were “covered entities” for purposes of HIPAA, 45 C.F.R. 164.512(a)(1) provides in relevant part that:

 

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

 

14.   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….

 

15.   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 Department 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 rule exceptions, even for covered entities).

 

16.   It is found that HIPAA does not bar disclosure of the medical information contained in the in camera records.

 

17.   It is concluded that HIPAA is not a “federal law” that exempts IC-2010-068-1 through IC-2010-068-3 from disclosure pursuant to 1-210(a), G.S.   See Priscilla Dickman v. Director, Health Affairs Policy Planning, Department of Community Medicine and Health Care, State of Connecticut, University of Connecticut Health Center; Docket #FIC2009-541 (July 28, 2010) (38-45); Robin Elliott v. Commissioner, State of Connecticut, Department of Correction; Docket #FIC2008-507 (July 22, 2009) (76–85).

 

18.   It is concluded that the respondents violated the FOI Act by failing to provide such records to the complainant.

 

19.   With respect to the records described in paragraph 8.c, above, it is found that such records are deemed to be erased and not subject to disclosure, pursuant to 52-142c, G.S.

 

20.  Section 54-142c(a), G.S., provides in relevant part:

 

The clerk of court or any person charged with retention and control of erased records . . . or any criminal justice agency having information contained in such erased records shall not disclose to anyone the existence of such erased records or information pertaining to any charge erased under any provision of this part, except as otherwise provided in this chapter.

 

21.   For purposes of 54-142c, G.S., a “criminal justice agency” is defined as including “any . . . government agency created by statute which is authorized by law and engages, in fact, as it principal function in activities constituting the administration of criminal justice.”

 

22.   It is found that the respondent police department is a criminal justice agency for purposes of 54-142c, G.S. 

 

23.   It is found that 54-142c, G.S., prohibits the respondents from disclosing the records described in paragraph 8.c, above, as Incident Report #2004-000002500.  It is concluded, therefore, that the respondents did not violate the FOI Act by not disclosing such records to the complainant.

 

24.   At the hearing in this matter, the respondents suggested to the complainant that he actually sought Incident Report #2005-000002500, which concerns one of the people about whom the complainant received other reports.  The respondents provided a copy of the 2005 incident report to the complainant.

 

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

1.      Forthwith, the respondents shall provide to the complainant the records described in paragraph 8.b of the findings of fact.

 

2.      The Commission commends the respondents for meeting with the complainant and assisting him with his many requests for records.  It is noted that the respondent chief met with the complainant at least ten times in 2010 and provided the complainant with over 950 pieces of paper at no charge.

 

 

Approved by Order of the Freedom of Information Commission at its special meeting of December 15, 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:

 

Lamberto Lucarelli

21 Howard Street

Old Saybrook, CT 06475

 

Chief, Police Department,

Town of Old Saybrook; and

Police Department,

Town of Old Saybrook

c/o Michael Cronin, Jr., Esq.

201 Main Street

PO Box 454

Old Saybrook, CT 06475

 

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-068/FD/paj/12/20/2010