FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Sylvester Traylor,  
  Complainant  
  against   Docket #FIC 2010-250

Commissioner, State of Connecticut,

Department of Public Health; and State

of Connecticut, Department of Public Health,   

 
  Respondents March 23, 2011
       

 

The above-captioned matter was heard as a contested case on July 15, 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, by letter dated April 6, 2010, the complainant sent the following request to the respondents:

 

This is a letter in response to Wendy Furniss [sic] letter dated February 3, 2010.  Mr. Furniss [sic] letter failed to answer my request for my wife’s missing and/or destroyed medical records. . . .

 

3.  By two letters of complaint both dated April 15, 2010 and filed April 16, 2010, the complainant appealed to the Commission, alleging that the respondents violated the FOI Act by failing to respond to his request referenced in paragraph 2, above.  In his letters of complaint, the complainant stated that he was seeking the Commission’s assistance in obtaining his wife’s missing medical files, and, if the respondents could not locate these records, he was seeking answers to questions concerning where these records have gone. 

 

4.  By motion dated June 28, 2010 and filed July 1, 2010, the respondents moved to dismiss the complaint on the ground that the Commission lacked subject matter jurisdiction over this case.  In their memorandum of law, the respondents argued that the complainant’s request, referenced in paragraph 2, above, evidenced that the complainant knew that the records he was seeking were missing and/or had been destroyed.  The respondents further argued that the Commission does not have jurisdiction to obligate a public agency to answer questions. 

 

5.  At the commencement of the contested case hearing, the complainant offered a written response to the respondents’ motion to dismiss.  Over counsel’s objection, the hearing officer accepted the complainant’s written response.   After hearing argument on the motion and the objection from both sides, the motion to dismiss was denied. 

 

6.  Section 1-200(5), G.S., provides:

 

“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, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

7.  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 . . .  (3) receive a copy of such records in accordance with section 1-212.

 

8.  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.

 

9.  It is found that, to the extent that the respondents maintain the records described in paragraph 2, above, the records are “public records” and must be disclosed in accordance with 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.

 

10. It is found that the request referred to in paragraph 2, above, follows a complaint filed by the complainant with the respondent agency concerning a physician licensed in the State of Connecticut, which complaint alleged that the physician had provided inadequate medical treatment to the complainant’s wife (the “administrative petition”). 

 

11. It is further found that the request referred to in paragraph 2, above, also follows a civil action filed by the complainant in 2006 against his wife’s treating physician (the “civil action”). 

 

12. It is found that, during the civil action referred to in paragraph 11, above, in the context of hearing on a discovery issue, defense counsel for the physician indicated on the court record that the records that the complainant is now seeking from these respondents had been disposed of or simply could not be located. 

 

13.  With respect to the questions referenced in paragraph 3, above, it is found that what the complainant is actually seeking is an explanation from the respondents as to how his wife’s records could have been destroyed or misplaced. 

 

14.  In this regard, it is found that the FOI Act does not require the respondents to answer questions.

15.  Finally, the respondents contend that any records that might have been created in connection with their investigation of the complainant’s administrative petition referred to in paragraph 10, above, are confidential.

 

16.  Section 20-13(e), G.S., provides in relevant part as follows:

(a) The department shall investigate each petition filed pursuant to section 20-13d, . . .  to determine if probable cause exists to issue a statement of charges and to institute proceedings against the physician . . . . Such investigation shall be concluded not later than eighteen months from the date the petition is filed with the department and, unless otherwise specified by this subsection, the record of such investigation shall be deemed a public record, in accordance with section 1-210, at the conclusion of such eighteen-month period. Any such investigation shall be confidential and no person shall disclose his knowledge of such investigation to a third party unless the physician requests that such investigation and disclosure be open.  If the department determines that probable cause exists to issue a statement of charges, the entire record of such proceeding shall be public unless the department determines that the physician is an appropriate candidate for participation in a rehabilitation program in accordance with subsection (b) and the physician agrees to participate in such program. . . .  If at any time subsequent to the filing of a petition and during the eighteen-month period, the department makes a finding of no probable cause, the petition and the entire record of such investigation shall remain confidential unless the physician requests that such petition and record be open.  [Emphasis supplied].

17. It is found that, subsequent to the filing of the complainant’s administrative petition, and during the eighteen month period immediately following, the respondent agency made a finding of no probable cause pursuant to 20-13e, G.S. 

 

18. It is found that the respondent agency has informed the complainant of its no probable cause finding on multiple occasions.

 

19.  Based on the finding in paragraph 17, above, it is found that any records that are in the respondents’ possession are investigatory records, which are exempt from disclosure pursuant to the provisions of 20-13e, G.S.

20. Based on the foregoing, it is concluded that the respondents did not violate the disclosure provisions of the FOI Act. 

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

1.  The complaint is dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of March 23, 2011.

 

__________________________

Cynthia A. Cannata

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:

 

Sylvester Traylor

881 Vauxhall Street Ext.

Quaker Hill, CT  06375

 

Commissioner, State of Connecticut, Department of Public Health; and

State of Connecticut, Department of Public Health

c/o Daniel Shapiro, Esq.

Assistant Attorney General

Office of the Attorney General

55 Elm Street

Hartford, CT  06106

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-250/FD/cac/3/28/2011