FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

 

In the Matter of a Request
for Advisory Opinion


 

     Advisory Opinion   #52

Commission on Hospitals and Health Care, Applicant

    

 

 

 

On October 27, 1982, the Commission considered and agreed to respond to the petition for a declaratory ruling filed on behalf of the Commission on Hospitals and Health Care.

 

In the statement accompanying its petition, the applicant maintains that it is a public agency within the meaning of Conn. Gen. Stat. 1-18a(a). Pursuant to Conn. Gen. Stat. 19a-156 (formerly, Conn. Gen. Stat. 19-73o), it is required, with certain exceptions, to review annually the operating budgets of the state's acute care hospitals. The applicant also states that under the latter authority, each such hospital must submit its proposed operating budget to the applicant for this statutorily mandated review.

 

As part of the budget review process, the applicant has required since 1978 that each subject hospital submit a schedule of its employees, by position title (but not by individual name), who earn in excess of a certain salary or fee amount. This information is requested on a document entitled "Analysis of Salaries," and known as "Schedule K." Currently, submitting hospitals must list on Schedule Ks the positions of employees whose salaries or fees are in excess of $40,000 annually.

 

In essence, the applicant seeks the Commission's opinion in response to three separate, but related questions. The first question is whether the completed Schedule Ks submitted to the applicant by the regulated hospitals, are public records within the meaning of Conn. Gen. Stat. 1‑18a(d). Assuming that the completed Schedule Ks are public records, the second question is whether such records are exempt from disclosure pursuant to Conn. Gen. Stat. 1‑19(b). The third question is whether the applicant's failure to promulgate regulations according to Conn. Gen. Stat. 4‑196 affects any requirement for public disclosure under Conn. Gen. Stat. 1‑19.

 

Each of these questions will be addressed seriatim below.

 

I

 

Conn. Gen. Stat. 1‑18a(d) defines "public records" for purposes of the Freedom of Information (hereinafter referred to as the "FOI") Act 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.

 

On several occasions already, the Commission has found that the applicant is a public agency within the meaning of Conn. Gen. Stat. 1‑18a(a). See Commission docket numbers FIC76-157, 79-183, 79-199, 79-204 and 81-145. Furthermore, it is clear from the applicant's statement that the information contained on the Schedule Ks is received and used by the applicant in its annual review of hospital budgets. It is also clear that the governmental regulation of hospital budgets, with its resultant impact upon hospital cost containment and patient services, must be deemed to be an important part of the conduct of the government's business. See Chapter 368c of the General Statutes which establishes the applicant, and confers upon it substantial regulatory powers.

 

It is therefore the Commission's opinion that the completed Schedule Ks, submitted to the applicant by the regulated hospitals, constitute public records, as defined in Conn. Gen. Stat. 1-18a(d).

 

II

 

The FOI Act is a disclosure statute. Board of Trustees of Woodstock Academy v. FOI Commission. 181 Conn. 544, 550 (1980). It provides specifically in Conn. Gen. Stat. 1‑19(a) that

 

[e]xcept 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 1‑15.

 

Thus, although there are exemptions to disclosure under the FOI Act, such exemptions do not prohibit an agency from releasing exempt material unless so prohibited by federal law or state statute.

 

The Commission is unaware of any state statute that bars disclosure of the completed Schedule Ks. See also discussion under section III, infra. In this regard, however, Conn. Gen. Stat. 1‑19(b) states that "[n]othing in ... [the FOI Act] shall be construed to require disclosure of (1) . . . [through] (14) [exemptions]." This language permits, but does not mandate, the non‑disclosure of certain kinds of records at the option of the agency. It does not mandate non‑disclosure. See Chrysler Corp. v. Brown, 441

U.S. 281, 292‑293 (1979).1 Consequently, the records listed as exempt under 1‑19(b) are not required to be withheld by that subsection of the state statutes.

 

But even if the applicant elects not to disclose the completed Schedule Ks under 1‑19(b), it can do so only if those records fall specifically under one or more of the categories of records enumerated as exempt under that subsection. It is the commission's opinion that the Schedule Ks do not come within the purview of any of the exemptions set forth in 1‑19(b).

 

Of the potentially relevant exemptions under 1‑19(b), 1‑19(b)(5) does not apply because the information contained on the completed Schedule Ks is required by law. See Conn. Gen. Stat. 19a-160 and 19-730-3 of the Regulations of Connecticut State Agencies. In addition, the information is obtained from governmentally regulated hospitals, rather than from the public. Section 1‑19(b)(8) does not apply because the applicant is not a "licensing agency" and the information contained on the Schedule Ks is not filed with a licensing agency to establish "personal" qualifications for a license, certificate or permit. And 1‑19(b)(10) does not apply because, for the reasons stated in this opinion, completed Schedule Ks are not exempt from disclosure by federal law or state statute.

 

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1 In Chrysler, the U.S. Supreme Court similarly held that the exemptions in the federal FOI Act are not designed as mandatory bars to disclosure because, like the Connecticut act, the federal act is phrased in terms of what must be disclosed and what may be withheld.

 

The only other potentially applicable exemption is that found at 1‑19(b)(2) covering "personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy ...." This has been held to mean that

 

unless a record is a personnel, medical or similar file, it is not exempt. If it is such a file, then it is still not exempt unless it contains information which if disclosed would constitute an invasion of privacy.

 

Hartford v. FOI Commission, Ct. Cmn. Pls., Hartford County, No 141867 (memorandum of decision dated December 19, 1977; Kinney, J.). P. 4.2

 

Moreover, 1‑19(b)(2) does not create a sweeping, or even a broad, privacy exemption to public disclosure. Id. at pp. 3, 4. As Judge Kinney put it:

 

The court recognizes that a reasonable argument can be made for exempting from disclosure all public records which would invade privacy if disclosed. Whether all such records should be exempt is a matter for the legislature to decide; it is sufficient to say that the legislature has not yet established an exemption as broad as this.

 

 

Id. at pp. 4-5. This is because in making permissive the 1‑19(b) exemptions to disclosure, the legislative concern was for the Agency's need or preference for confidentiality. See Chrysler Corp. v. Brown, supra at pp. 292-293. Consequently, the 1‑19(b)(2) exemption protects the subjects, interest in privacy only to the extent that this interest is concurred in by the agency that receives the information. Id.

 

It is the Commission's opinion that 1‑19(b)(2) does not exempt the completed Schedule Ks from public disclosure. Although the salaries of employees may be contained in personnel files that are maintained by the subject hospitals, the salary and fee information contained on the Schedule Ks is not maintained in personnel or similar files of the applicant. Each completed Schedule K is maintained by the applicant in a file, identified by the individual submitting hospital, and

 

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2 Disclosure of gun permit applications and supporting references upheld.

 

 

 

relating directly to the regulatory process of budget review. Because the Schedule Ks do not constitute personnel or similar files, they are not exempt from disclosure pursuant to 1‑19(b)(2). See Hartford v. FOI Commission, supra. See also Glastonbury v. FOI Commission, super. Ct., JD Hartford‑New Britain, No. 243951 (memorandum of decision dated August 11, 1982; Doyle, J.), pp. 8‑10.3

 

Furthermore, for the following reasons. it is the Commission's opinion that disclosure of the completed Schedule Ks would not constitute an invasion of personal privacy. This opinion applies not only to the exemption to public disclosure under 1‑19(b)(2), it applies to any mandatory bar to such disclosure on the basis of any federal law, including the constitutional and common law rights to privacy. For the Commission is unaware of any other federal law that would prohibit the disclosure of the Schedule Ks pursuant to either 1‑19(a) or 1‑19(b)(10). In this regard, it is the Commission's opinion that neither the applicant nor any of the regulated hospitals that submit Schedule Ks are the kinds of organizations subject to the non‑disclosure provisions of federal law cited on page 2 of Exhibit 4 to the applicant's statement in support of its petition for declaratory ruling.4 See Forsham v. Harris, 445 U.S. 169 (1980). See also Public Citizen Health Research Grou]2 v.,Department of H.E.W., 668 F.2d 537 (DC Cir. 1981).

 

A. THE CONSTITUTIONAL RIGHT TQ PRIVACY

 

The U.S. Supreme Court has recognized two distinct privacy interests protected by the U.S. Constitution. "One is the individual interest in avoiding disclosure of personal matters, and another is the interest in making certain kinds of important decisions." Whalen v. Roe, 429 U.S. 589, 598-99 (1977). The former interest has come to be termed by the courts as the

 

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3 Disclosure of the names and addresses of school system employees upheld because: (1) even though the subject information was contained in personnel files, it was also contained in an employee directory; and (2) disclosure would not constitute an invasion of personal privacy.

 

4 The federal law specifically cited is: 5 U.S.C. 552(b)(6); 5 U.S.C. 552a(a)(4) and (b); 41 C.F.R. 3-1.327, 45 Fed. Reg. 15177‑15178; 41 C.F.R. 3-1.357, 45 Fed. Reg. 31721; 41 C.F.R. 3‑7.5027, 45 Fed. Reg. 32306-32308; and 45 C.F.R. 5b.9.

 

 

 

 

 

 

 

 

 

 

"confidentiality" branch of constitutional privacy; the latter has been called the "autonomy" branch. Plante v. Gonzalez, 575 F.2d 1119, 1128, 1132 (5th Cir. 1978).

 

The U.S. Supreme Court has limited, its inquiry to only the most intimate personal matters in the autonomy branch of constitutional privacy--i.e., matters relating to marriage, procreation, contraception, family relationships and child rearing and education. Paul v. Davis, 424 U.S. 693, 713 (1976). Constitutional privacy includes only personal rights that can be deemed "fundamental" or "implicit" in the concept of ordered liberty. Id: Roe v. Wade, 410 U.S. 113, 152 (1973).

 

The Commission believes that disclosure of the completed Schedule Ks would not implicate the autonomy branch of constitutional privacy because it would neither affect, nor result in the disclosure of, the most intimate personal kinds of decisions that fall within the autonomy branch. Consequently, if the constitutional law of privacy is to bar disclosure of the subject records, disclosure must constitute an invasion of the confidentiality branch. But, like the cases involving the autonomy branch, the landmark cases dealing with the confidentiality branch have involved the dissemination of information that qualitatively is more sensitive and personal than the mere gross salary and fee information contained in Schedule Ks. See Nixon v. Administrator of General services. 433 U.S. 425 (1977): 5 Whalen v. Roe, supra; 6 Planned Parenthood v. Danforth, 428 U.S. 52 (1976); 7 and Sleven v. City of New York, 551 F.2d 917 (S.D.N.Y., 1982). 8

 

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5 The court held that privacy interests in presidential material are limited to only the most personal diaries and tape involving communications between the president and his wife, physician, lawyer, clergyman and close personal friends.

 

6 The court held that public disclosure of the identity of individuals receiving various types of Schedule II prescription drugs would violate their constitutional interest in confidentiality.

 

7 The court held that disclosure of maternal health data compiled by the state pursuant to an abortion monitoring operation would implicate constitutional confidentiality interests.

 

8 The court held that, absent a showing of greater public interest, a financial disclosure ordinance, requiring disclosure of the details of the financial affairs of city employees and their families, is unconstitutional as applied.

 

 

 

 

 

 

 

 

Furthermore, the courts have not been quick to expand constitutional privacy rights to new fields. Thus, for example, the courts have said that the interests in constitutional privacy diminish substantially when the information already appears on the public record. Cox Broadcasting Corp. v. Cohn, 420 U.S. 429, 494-95 (1975); Paul v. Davis, supra; McNallv V. Pulitzer Pub. Co., 532 F.2d 69, 77 (8th Cir.. 1976) cases, courts have rebuffed attempts brought under various privacy theories to penalize the publication of true facts contained in public records.

 

In addition, a constitutional right to privacy has never been founded upon the disclosure of information that relates directly to the conduct of the public's business. For example, in the Nixon case, the U.S. Supreme Court went to some length to distinguish between President Nixon's personal records and those that related to his presidency. Nixon, supra at p. 459. See also Minnesota Medical Ass'n v. State. 274 N.W. 2d 84, 94 (Minn Sup. Ft., 1978). In the situation presented by the applicant, the information contained in the completed Schedule Ks relates directly to the conduct of the public's business because it is used by the applicant in determining the level of approval for the budgets of submitting hospitals.

 

B. THE COMMON LAW RIGHT TO PRIVACY

 

Aside from the constitutional right to privacy, Connecticut common law also recognizes a right to privacy. See Goodrich v. Waterbury Republican‑American Inc., 188 Conn. 107 (1982). In recognizing for the first time a cause of action for invasion of privacy, the Connecticut Supreme Court approved two definitions of what constitutes that action. Goodrich, supra at pp. 127‑128. The first definition is set forth in 3 Restatement (Second). Torts 652A as follows:

 

(a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The second definition is found in Prosser, Torts (4th Ed. 1971) 117, p. 804‑15 and Prosser, "Privacy." 48 Cal. L. Rev. 383 (1960), and reads:

 

[1] appropriation, for the defendant's benefit or advantages, of the plaintiff's name or likeness [;2] intrusion upon the plaintiff's physical solitude or seclusion [:3] publicity, of a highly objectionable kind, given to private information about the plaintiff, even though it is true and no action would lie for defamation [; and 4] publicity which places the plaintiff in a false light in the public eye.

 

 

See also Bloomfield v. FOI Commission, Ct. Cmn. Pls., Hartford County, No. 1454226 (memorandum of decision dated April 26, 1978; Schaller, J.), in which the court developed a scholarly analysis of the law of privacy which is equally applicable to this case. Citing 62 Am. Jur. 2d, Privacy, l, Judge Schaller sets forth the most universally accepted, comprehensive definition of the right to privacy as

 

... the right to be free from the unwarranted appropriation or exploitation of one's personality., the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities, in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.

 

Bloomfield, supra at p. 23.

 

In this regard. two important aspects of privacy law should be emphasized again. First, the right to privacy does not cover disclosure of information that is already a part of the public record. Goodrich v. Waterbury Republican‑American, Inc., supra at p. 134. See also Lamont v. Commissioner of Motor Vehicles 269 F. Sup. 880 (D.C. Dist., 1967). Secondly, the right to privacy does not cover information that is of "legitimate public or general interest." Bloomfield, supra, at p. 24. citing 62 Am. Jur. 2d, Privacy, 16 at pp. 700‑701. As stated by the Connecticut Supreme Court,

 

the right of privacy must give way when balanced against the publication of matters of public interest, in order to insure the "uninhibited, robust and wide‑open" discussion of legitimate public issues.

 

Goodrich v. Waterbury Republican‑American, Inc., ' supra at pp. 133‑134, quoting in part from New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

 

In the final analysis, the situation presented in the applicant's petition for a declaratory ruling is not a difficult one in which to apply privacy law. It is clear that the disclosure of the completed Schedule Ks would not implicate an appropriation of one's name or likeness. Nor would it implicate those elements of invasion of privacy dealing with placing one in a false light, or with an intrusion upon one's solitude or seclusion. In fact, even if disclosure would constitute publicity regarding private facts,9 it still would not implicate an invasion of privacy because such publicity is neither "unreasonable," nor of a "highly objectionable kind." Indeed, the Commission believes that there is nothing more unreasonable, or more objectionable, in the disclosure of the salary and fee information contained in the completed Schedule Ks than there is in the required disclosure of the names and specific remuneration of the five highest paid executive officers and directors of publicly owned corporations in proxy statements. See 15 U.S.C. 5 78n(a) and 17 C.F.R 229.402 and 240.14a‑101. Surely, disclosure of corporate executive and director remuneration does not constitute an invasion of privacy because it is a reasonable, and not very objectionable, imposition that furthers important societal interests.

 

Similarly, it is the commission's opinion that disclosure of the Schedule K information would not constitute an invasion of privacy. For such disclosure would be a reasonable intrusion, and not a highly objectionable one at that, into one extremely limited aspect of the financial affairs of those whose remuneration is determined, in part, by the state regulatory process of budget approval. Moreover, the Commission believes

 

 

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9 Query whether the salary and fee information contained on completed Schedule Ks is private‑‑that is, not a matter of public record. See, for example, 26 U.S.C. 6033 and 6104(b) and 26 C.F.R. 1 6033‑2(g). These sections of the Internal Revenue Code and implementing regulations provide for the public disclosure of certain tax return information, filed by organizations claiming tax exemption under 26 U.S.C. 501(c)(3), including the names and addresses of the five employees who receive the greatest amount of annual compensation in excess of $30,000.

 

 

 

 

 

 

 

that there is a general and legitimate public interest in knowing the facts behind the applicant's decisions regulating hospital budgets‑‑decisions that are supposed to help contain excessive costs in the interest of the very same public. Certainly, such information must be available if the people of this state are to have the "'uninhibited. robust and wide‑open, discussion of legitimate public issues" that the Supreme Court

deemed so important in limiting the right to privacy in Connecticut. Goodrich, supra at pp. 133‑134

 

It is therefore the Commission's opinion that the completed Schedule Ks, submitted to the applicant by the regulated hospitals, are not exempt from disclosure pursuant to Conn. Gen Stat. I‑19.

 

III

 

Conn. Gen. Stat. 4‑196 states that each state agency, as defined in Conn. Gen. Stat. 4‑190(a), shall adopt regulations within six months of July 1, 1977 which describe:

 

(1) The general nature and purpose of the agency's personal data systems;

 

(2) The categories of personal and other data kept in the agency's personal data systems;

 

(3) The agency's procedures regarding the maintenance of personal data;

 

(4) The uses to be made of the personal

data maintained by the agency.

 

Conn. Gen. Stat. 4‑190(a) defines "personal data." in part, as "any information about a person's . . .finances . . . which because of name, identifying number, mark or description can be readily associated with a particular person." A "personal data system," according to Conn. Gen. Stat. 4‑190(j), is "a collection of records containing personal data." Apparently, the applicant has not promulgated regulations in compliance with Conn. Gen. Stat. 4‑196.

 

The Commission cannot determine whether the salary and fee information contained on the completed Schedule Ks constitutes

 

 

 

 

 

 

 

 

"personal data," as defined by 4‑190(a), or whether all of the completed Schedule Ks constitute a "personal data system," as defined by 4‑190(j). Presumably, if the salary and fee information in a given Schedule K can be readily associated with a particular person or persons, such information would constitute "personal data." Under such circumstances then, the applicant's collection of Schedule Ks containing such personally identifiable salary and fee information would presumably constitute a "personal data system." The Commission, however, need not determine whether any record constitutes "personal data." or whether any collection of records constitutes a "personal data system," in order to respond to the applicant's third question.

 

As stated in section II, above, the public disclosure provisions of the FOI Act apply, unless otherwise provided by any federal law or state statute. See Conn. Gen. Stat. 1‑19(a). The question thus becomes whether 4‑196 is such a statute that would bar disclosure of the subject records. It is the Commission's opinion that 4‑196 is clearly not such a state statute.

 

Section 4‑196 is part of Chapter 55 of the General Statutes known as the "Personal Data Act." In its current form, the "Personal Data Act" provides that certain state agencies shall limit the collection and maintenance of "personal data." See Conn. Gen. Stat. 4‑193. It also establishes mechanisms that enable a person to obtain "personal data" about himself; to contest the accuracy, completeness or relevancy of such "personal data;" and to correct and protest any inaccuracy, incompleteness or irrelevancy therein. Id. In furtherance of this purpose, 4‑196 requires that the covered state agencies promulgate certain regulations.

 

Prior to the enactment of P.A. 79-538, 2, which repealed Conn. Gen. Stat. 4-191 and 4-192, the "Personal Data Act" also provided for non‑disclosure of "personal data" to third persons without the consent of the data subject. Although the Commission believed that these provisions did not supersede the disclosure provisions of the FOI Act; see docket numbers FIC78‑17, FIC79-13 and FIC79-80; the commission believed that the language of 4‑191 and 4‑192 created enough of a doubt to warrant legislative clarification and ultimate resolution. As a result, it requested the introduction of Senate Bill 328, which ultimately became P.A. 79-538.

 

 

 

 

 

 

 

 

 

 

 

 

 

In repealing 4‑191 and 4‑192 with their non‑disclosure provisions, the General Assembly made clear that the "Personal Data Act" was not intended to supersede the public disclosure requirements of the FOI Act. In this regard, the legislative history of P.A. 79‑538 is particularly enlightening:

 

The intent of this bill would be to repeal the part of the Privacy ["Personal Data"] Act which prohibits state officials from disclosing personal data without the consent of the data subject. In doing so, the bill would make personal data contained in public records of state agencies available for inspection . . . unless disclosure would be otherwise prohibited by the Freedom of Information Act or some other state statute or federal law.

 

Remarks of Senator Baker, Senate Proceedings, 1979 General Assembly, Vol. 22, Part 10, p. 3217 (May 15, 1979).

 

[T]he problem has been that government has disclosed too little information, and therefore, responding to that reality this bill makes clear that the preference and priority of this legislature and this state government is on openness.

 

Remarks of Senator Lieberman, Senate Proceedings, 1979 General 3ssembly, Vol. 22, Part 10, p. 3222 (May 15, 1979).

 

S.B. 328 removes all unnecessary and overly broad non‑disclosure requirements. It would reaffirm the basic principle embodied in the Freedom of Information Act that all records are presumed public unless we in the legislature specifically provide otherwise.

 

(Emphasis added). Remarks of Representative Carragher, House Proceedings, 1979 General Assembly, Vol. 22, Part 31. pp. 10681‑82 (May 29, 1979).

 

Third person or public non‑disclosure is no longer a part of the "Personal Data Act." Moreover, Conn. Gen. Stat. 4‑196 does not prohibit specifically the public disclosure of either "personal data" or the salary and fee information contained in those Schedule Ks that may be personally identifiable to the recipients of such salary and fee information. In light of these facts, and the legislative history of P.A. 79‑538, the Commission concludes that the General Assembly never intended that the public disclosure requirements of the FOI Act may be disregarded in the case of non‑exempt "personal data" when an agency fails to promulgate 4‑196 regulations. For if the converse were true, then any agency could easily evade the legislative preference and priority for public disclosure of non‑exempt "personal data," as embodied in the FOI Act, merely by neglecting to adopt such regulations.

 

Consequently, it is the Commission's opinion that the applicant's failure to promulgate regulations according to Conn. Gen. Stat. 4‑196 does not affect any requirement for public disclosure under Conn. Gen. Stat. 1‑19.

 

 

 

 

                                                                                            By Order of the Freedom of
                                                                                            Information Commission

                                                                                           

                                                                                ________________________
                                                                                            Judith A. Lahey, Chairman of
                                                                                            of the Freedom of Information
                                                                                            Commission

Date ___________________

 

Ordered_________________

Mary Jo Jolicoeur
Clerk of the Commission