Freedom of Information Officer, Dept. of Mental Health & Addiction Services v. Freedom of Information Commission ( 2015 )

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FREEDOM OF INFORMATION OFFICER,
DEPARTMENT OF MENTAL HEALTH
AND ADDICTION SERVICES,
ET AL. v. FREEDOM
OF INFORMATION
COMMISSION
ET AL.
(SC 19371)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued January 14—officially released September 22, 2015
Valicia Dee Harmon, commission counsel, with
whom, on the brief, was Colleen M. Murphy, executive
director and general counsel, for the appellant-appellee
(named defendant).
Jacqueline Hoell, assistant attorney general, with
whom were Henry A. Salton, assistant attorney general,
and, on the brief, George Jepsen, attorney general, for
the appellees-appellants (plaintiffs).
Opinion
EVELEIGH, J. The present case arises from the ruling
of the named defendant, the Freedom of Information
Commission (commission), that the defendant Ron
Robillard was entitled to the disclosure of documents
in the possession of the plaintiffs, the Department of
Mental Health and Addiction Services (department) and
its Freedom of Information Officer (information offi-
cer), under the Freedom of Information Act (act), Gen-
eral Statutes § 1-200 et seq. The commission appeals
from the judgment of the trial court, claiming, inter alia,
that the plaintiffs lacked standing to appeal to the trial
court from the commission’s decision. The plaintiffs
cross appealed from the judgment of the trial court,
claiming, inter alia, that the trial court improperly
rejected the plaintiffs’ claim that the documents were
medical records related to the diagnosis and treatment
of a patient and were, thus, psychiatric records exempt
from disclosure pursuant to General Statutes § 52-146e.
We conclude that the plaintiffs had standing to appeal
the decision of the commission, and further agree with
the plaintiffs that the documents at issue are exempt
from disclosure under § 52-146e. Accordingly, we
reverse the judgment of the trial court and remand
the case to that court with direction to sustain the
plaintiffs’ appeal.
The following facts and procedural history are rele-
vant to the present appeal. The plaintiffs received a
request under the act from Robillard for any records
concerning a person named Amy Archer Gilligan for
the period of time from 1924 through 1962. Gilligan was
a patient at a facility now known as Connecticut Valley
Hospital (hospital) following her conviction for second
degree murder for the arsenic poisoning of a resident
of her nursing home. Gilligan’s life is widely considered
to be the basis for the play and movie entitled ‘‘Arsenic
and Old Lace.’’ The plaintiffs provided Robillard with
copies of those records pertaining to Gilligan that it
deemed were disclosable under the act. Robillard was
notified by the plaintiffs that other records, deemed
exempt from disclosure under the act, were withheld.
Robillard then filed a complaint with the commission
alleging that the plaintiffs violated the act by failing to
provide these records concerning the confinement of
Gilligan. After a full hearing and an in camera inspection
of the records before a hearing officer of the commis-
sion, the commission adopted the proposed findings
and decision of the hearing officer. In its memorandum
of decision, the hearing commission found that some
of the records submitted for in camera review were
exempt from disclosure as psychiatric records under
§ 52-146e. The commission found that two documents
submitted for in camera inspection were exempt from
disclosure under General Statutes § 1-210 (b) (10) as
‘‘communications privileged by the attorney-client rela-
tionship . . . .’’ The commission found that the rest of
the records submitted for in camera review did not
qualify as psychiatric records or attorney client commu-
nications, but were ‘‘on their face medical records
. . . .’’ The commission found that the medical records
were not exempt from disclosure under the federal
Health Insurance Portability and Accountability Act
(HIPAA), 42 U.S.C. § 1320d et seq. The commission
further found that the medical records were not exempt
from disclosure under the act because Gilligan is
deceased and, therefore, there can be no invasion of
privacy under § 1-210 (b) (2).
The plaintiffs then filed an administrative appeal pur-
suant to General Statutes § 4-183 of the Uniform Admin-
istrative Procedure Act (UAPA). On appeal to the trial
court, the plaintiffs made the following claims: ‘‘(1)
The [commission] erroneously applied Connecticut’s
psychiatric-patient privilege by allowing disclosure of
certain of the documents requested by Robillard, (2)
the [commission] erroneously applied the § 1-210 (b)
(2) exemption from disclosure under the [act], and (3)
the [commission] erroneously interpreted the depart-
ment’s claimed exemption under HIPAA.’’ The trial
court found that the commission properly applied § 52-
146e, with the exception of two documents that the
court ordered partially redacted as to diagnosis. The
trial court further found that the commission properly
applied § 1-210 (b) (2), but found that the plaintiffs had
met their burden under § 1-210 (b) (2) as to the physical
and dental examination records contained in the docu-
ments, finding that they were not a legitimate matter
of public concern and would be highly offensive if dis-
closed. Accordingly, the trial court sustained the plain-
tiffs’ appeal as to those physical and dental examination
records. The commission appealed and the plaintiffs
cross appealed from that judgment to the Appellate
Court, and we transferred those appeals to this court
pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-2.
On appeal to this court, the commission claims that
the plaintiffs lacked standing to appeal to the trial court
from the commission’s decision that Gilligan’s medical
records were not exempt from disclosure. In the cross
appeal, the plaintiffs claim that the trial court improp-
erly concluded that all of the records at issue were not
exempt from disclosure under § 52-146e.1 We conclude
that the plaintiffs had standing to appeal to the trial
court from the commission’s decision and that the trial
court improperly concluded that all of the records at
issue were not exempt from disclosure under § 52-146e.
I
The commission asserts that the plaintiffs lacked
standing to appeal to the trial court from the commis-
sion’s decision that Gilligan’s medical records were not
exempt from disclosure.2 Specifically, the commission
asserts that the plaintiffs are not aggrieved because
their personal privacy interest was not affected by its
decision. Further, the commission claims that the plain-
tiffs lack standing because they cannot assert the pri-
vacy interests of their deceased client. In response, the
plaintiffs assert that they had standing to appeal from
the commission’s decision that Gilligan’s medical
records were not exempt from disclosure under § 1-
210 (b) (2) because they were aggrieved by the decision
of the commission. We agree with the plaintiffs.
‘‘As a preliminary matter, we address the appropriate
standard of review. If a party is found to lack
[aggrievement], the court is without subject matter
jurisdiction to determine the cause. . . . A determina-
tion regarding a trial court’s subject matter jurisdiction
is a question of law. When . . . the trial court draws
conclusions of law, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in the
record. . . .
‘‘Subject matter jurisdiction [implicates] the authority
of the court to adjudicate the type of controversy pre-
sented by the action before it. . . . [A] court lacks dis-
cretion to consider the merits of a case over which it
is without jurisdiction . . . . The objection of want of
jurisdiction may be made at any time . . . [a]nd the
court or tribunal may act on its own motion, and should
do so when the lack of jurisdiction is called to its atten-
tion. . . . The requirement of subject matter jurisdic-
tion cannot be waived by any party and can be raised
at any stage in the proceedings.’’ (Internal quotation
marks omitted.) Fort Trumbull Conservancy, LLC v.
New London, 282 Conn. 791, 802, 925 A.2d 292 (2007).
‘‘Only parties aggrieved by the decision of the [com-
mission] have standing to take appeals to the Superior
Court. General Statutes § 1-21i (d). Standing is not a
technical rule intended to keep aggrieved parties out
of court; nor is it a test of substantive rights. Rather it
is a practical concept designed to ensure that courts
and parties are not vexed by suits brought to vindicate
nonjusticiable interests and that judicial decisions
which may affect the rights of others are forged in
hot controversy, with each view fairly and vigorously
represented. . . . These two objectives are ordinarily
held to have been met when a complainant makes a
colorable claim of [a] direct injury he has suffered or
is likely to suffer, in an individual or representative
capacity. Such a personal stake in the outcome of the
controversy . . . provides the requisite assurance of
concrete adverseness and diligent advocacy.
‘‘As long as there is some direct injury for which the
plaintiff seeks redress, the injury that is alleged need
not be great . . . [and] need not be primarily eco-
nomic. . . .
‘‘In appeals pursuant to § 1-21i (d), we have translated
these general principles into a twofold test for
aggrievement that requires a showing of: (1) a specific
personal and legal interest in the subject matter of the
[commission] decision; and (2) a special and injurious
effect on this specific interest.’’ (Citations omitted; foot-
note omitted; internal quotation marks omitted.) Board
of Pardons v. Freedom of Information Commission,
210 Conn. 646, 648–49, 556 A.2d 1020 (1989).
Although the commission does not expressly address
why the plaintiffs are not aggrieved, it seems to assert
that because they are merely the holder of the public
records at issue here, they are not affected by any dis-
closure and are not the appropriate parties to provide
evidence as to why disclosure would constitute an inva-
sion of privacy. In response, the plaintiffs assert that
they are aggrieved by the commission’s decision
because they have a legally protected interest that has
been, and will in the future be, adversely affected by
the commission’s decision. Specifically, the plaintiffs
assert that the department is statutorily charged with
providing comprehensive, client based services in the
areas of mental health and substance abuse treatment
to people in the state, including many people who have
been found not guilty of crimes but are in need of
psychiatric care and others who may be characterized
as notorious. The plaintiffs further assert that the
department’s interest in providing such care is
adversely affected by the commission’s determination
that medical records of patients in their facilities can
be subject to disclosure under the act because it might
adversely affect patients’ willingness to provide infor-
mation regarding their medical history and status if
such information is subject to disclosure.
In support of their position, the plaintiffs rely on
Board of Pardons v. Freedom of Information Commis-
sion, supra, 210 Conn. 646. In Board of Pardons, the
commission had issued a decision finding that the Board
of Pardons (board) had improperly gone into executive
session to discuss records of prisoners. The board
appealed the decision to the trial court and then to the
Appellate Court. The Appellate Court concluded that
the board did not have standing to appeal from the
decision of the commission because it was not
aggrieved. See id., 648. This court reversed the judgment
of the Appellate Court, concluding that ‘‘the board has
a legitimate institutional interest in the integrity of its
decision-making process. The board has advanced a
colorable claim of injury to its own deliberative func-
tions that transcends the interests of individual prison-
ers in the disclosure of their records. In deciding
whether to grant a pardon or to commute a prison
sentence, the board depends not simply on objective
[fact-finding], but also on purely subjective evaluations
and on predictions of future behavior . . . . In order
to carry out this sensitive mission, the board claims
that it needs the opportunity for confidential dialogue
about every aspect of a prisoner’s record. The board
alleges that, as a practical matter, there is a great deal
of overlap between the discussion of the records of
individual prisoners, which the [commission] has
ordered to be held in public, and the discussion of third
party information, which even the [commission] has
permitted to be conducted in executive session. The
bifurcated procedure that the [commission] order man-
dates therefore gave rise to a colorable claim of injury
to a central aspect of the board’s functions.’’ (Citation
omitted; internal quotation marks omitted.) Id., 650–51.
This court further concluded that the commission’s
decision ‘‘would undoubtedly have . . . a chilling
effect on the [board] the next time it contemplated . . .
an executive session in order to decide whether to
grant a petition for a pardon.’’ (Internal quotation marks
omitted.) Id., 651. Similarly, we conclude that the plain-
tiffs have made a colorable claim that the commission’s
decision in the present case would have a chilling effect
on its statutorily mandated role of providing mental
health and addiction services to patients in the state
of Connecticut.
In Board of Pardons, this court also relied on the
fact that the potential for criminal liability or civil incar-
ceration was sufficient to confer standing. ‘‘Because
the [act] makes noncompliance with [a commission]
order a class B misdemeanor; General Statutes § 1-21k
(b); the individual members of the board have a ‘specific
and personal’ interest in the validity of such an order.
In the future, board members face the risk of injury, in
the form of criminal prosecution and sanctions, if they
fail to comply with the present [commission] order.
Such a risk of prosecution establishes the requisite ‘spe-
cific and personal interest’ of the members of the board
and of the board itself as their representative.’’ (Foot-
note omitted.) Board of Pardons v. Freedom of Infor-
mation Commission, supra, 210 Conn. 650.3 In the
present case, based on the commission’s ruling, employ-
ees of the department may face criminal liability or
civil incarceration in the future if they do not disclose
records. Such potential is sufficient to present a color-
able claim of direct injury.
Moreover, the plaintiffs are subject to General Stat-
utes § 52-146j,4 which provides a cause of action for
improper disclosure of psychiatric records. The poten-
tial for a civil action and penalties for improper disclo-
sure of such actions is further evidence that the
plaintiffs have a colorable claim of direct injury related
to the commission’s decision.5
Accordingly, we conclude that the plaintiffs had
standing to appeal from the decision of the commission.
II
In their cross appeal, the plaintiffs assert that the
trial court improperly affirmed the decision of the com-
mission finding that some of the records at issue were
not exempt from disclosure under § 52-146e.6 Specifi-
cally, the plaintiffs assert that the commission and the
trial court improperly divided the records at issue
between documents that were related to psychiatric
care and those that were medical records. The plaintiffs
assert that such a division was improper because all of
the documents at issue were created during care for a
patient at an inpatient mental health facility, and that
medical diagnosis and treatment are part of psychiatric
treatment and diagnosis at an inpatient mental health
facility. In response, the commission asserts that the
commission and the trial court properly determined
that the medical and dental records are not exempt
from disclosure under § 52-146e because they are not
privileged communications and records as defined by
General Statutes § 52-146d (2).7 We agree with the plain-
tiffs and, accordingly, reverse the judgment of the trial
court to the extent that it determined that the medical
records were not exempt from disclosure under § 52-
146e.
‘‘This court reviews the trial court’s judgment pursu-
ant to the . . . UAPA . . . . Under the UAPA, it is
[not] the function . . . of this court to retry the case or
to substitute its judgment for that of the administrative
agency. . . . Even for conclusions of law, [t]he court’s
ultimate duty is only to decide whether, in light of the
evidence, the [agency] has acted unreasonably, arbi-
trarily, illegally, or in abuse if its discretion. . . . [Thus]
[c]onclusions of law reached by the administrative
agency must stand if the court determines that they
resulted from a correct application of the law to the
facts found and could reasonably and logically follow
from such facts. . . . [Similarly], this court affords def-
erence to the construction of a statute applied by the
administrative agency empowered by law to carry out
the statute’s purposes. . . . Cases that present pure
questions of law, however, invoke a broader standard
of review than is . . . involved in deciding whether, in
light of the evidence, the agency has acted unreason-
ably, arbitrarily, illegally or in abuse of its discretion.
. . . Furthermore, when a state agency’s determination
of a question of law has not previously been subject to
judicial scrutiny . . . the agency is not entitled to spe-
cial deference. . . . We have determined, therefore,
that the traditional deference accorded to an agency’s
interpretation of a statutory term is unwarranted when
the construction of a statute . . . has not previously
been subjected to judicial scrutiny [or to] . . . a gov-
ernmental agency’s time-tested interpretation . . . .’’
(Citation omitted; internal quotation marks omitted.)
Chairperson, Connecticut Medical Examining Board
v. Freedom of Information Commission, 310 Conn.
276, 281–82, 77 A.3d 121 (2013). Even if time-tested, we
will defer to an agency’s interpretation of a statute only
if it is ‘‘reasonable’’; that reasonableness is determined
by ‘‘[application of] our established rules of statutory
construction.’’ (Internal quotation marks omitted.)
Dept. of Public Safety v. State Board of Labor Relations,
296 Conn. 594, 599, 996 A.2d 729 (2010).
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In seeking to determine that
meaning, General Statutes § 1-2z directs us first to con-
sider the text of the statute itself and its relationship
to other statutes. If, after examining such text and con-
sidering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the mean-
ing of the statute shall not be considered. . . . The test
to determine ambiguity is whether the statute, when
read in context, is susceptible to more than one reason-
able interpretation. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance to
the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter . . . .’’ (Internal quotation marks omit-
ted.) Chairperson, Connecticut Medical Examining
Board v. Freedom of Information Commission, supra,
310 Conn. 283. The issue of statutory interpretation
presented in this case is a question of law subject to
plenary review. See id., 282–83.
We begin with the text of the statute. Section 52-
146e (a) provides as follows: ‘‘All communications and
records as defined in section 52-146d shall be confiden-
tial and shall be subject to the provisions of sections
52-146d to 52-146j, inclusive. Except as provided in sec-
tions 52-146f to 52-146i, inclusive, no person may dis-
close 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 govern-
mental agency without the consent of the patient or his
authorized representative.’’ The plain language of § 52-
146e exempts all such ‘‘communications and records’’
from disclosure.
Therefore, we must consider whether medical and
dental records are ‘‘communications and records’’ for
the purposes of § 52-146e. Section 52-146d (2) defines
‘‘ ‘[c]ommunications and records’ ’’ as ‘‘all oral and writ-
ten 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 accom-
plishment of the objectives of diagnosis and treatment,
wherever made, including communications and records
which occur in or are prepared at a mental health facil-
ity . . . .’’
In the present case, the crux of the disagreement
between the commission and the plaintiffs is whether
medical and dental records contained within Gilligan’s
file are exempt from disclosure under § 52-146e. The
commission asserts, and the trial court agreed, that
these documents were not exempt from disclosure
because they were not ‘‘oral and written communica-
tions and records thereof relating to diagnosis or treat-
ment of a patient’s mental condition between the patient
and a psychiatrist, or between a member of the patient’s
family and a psychiatrist . . . .’’ General Statutes § 52-
146d (2). We agree that the medical and dental records
are not communications directly between Gilligan and
a psychiatrist or between a member of Gilligan’s family
and a psychiatrist.
Nevertheless, the definition of ‘‘ ‘[c]ommunications
and records’ ’’ in § 52-146d (2) does not stop there. Sec-
tion 52-146d (2) further defines ‘‘ ‘[c]ommunications
and records’ ’’ to include ‘‘all oral and written communi-
cations and records thereof relating to diagnosis or
treatment of a patient’s mental condition . . . 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, including communications and records which
occur in or are prepared at a mental health facility
. . . .’’
In interpreting this statute, we do not write on a clean
slate. ‘‘As we have previously observed, [t]he people of
this state enjoy a broad privilege in the confidentiality
of their psychiatric communications and records . . .
and the principal purpose of that privilege is to give
the patient an incentive to make full disclosure to a
physician in order to obtain effective treatment free
from the embarrassment and invasion of privacy which
could result from a doctor’s testimony. . . . Accord-
ingly, the exceptions to the general rule of nondisclo-
sure of communications between psychiatrist and
patient were drafted narrowly to ensure that the confi-
dentiality of such communications would be protected
unless important countervailing considerations
required their disclosure. . . .
‘‘Although we are cognizant that [c]ommunications
that bear no relationship to the purpose for which the
privilege was enacted do not obtain shelter under the
statute and are admissible subject to the normal rules
of evidence . . . we are equally convinced that the pro-
tection of communications that identify a patient are
central to the purpose of the statute. The language of
the statute supports this conclusion. Section 52-146e
(a) specifically prohibits the disclosure or transmission
of any communications or records that would identify
a patient . . . . Section 52-146d provides that the
phrase identify a patient refer[s] to communications
and records which contain (A) names or other descrip-
tive data from which a person acquainted with the
patient might reasonably recognize the patient as the
person referred to, or (B) codes or numbers which are
in general use outside of the mental health facility which
prepared the communications and records . . . . Fur-
ther, the fact that an explicit exception contained in
subdivision (3) of [General Statutes] § 52-146f permits
the disclosure of a patient’s name, address and . . .
[t]hat the person was in fact a patient for purposes of
collection disputes between the hospital and the
patient, lends weight to our conclusion that the general
rule against disclosure applies with equal force to iden-
tity as to other information.’’ (Citations omitted; internal
quotation marks omitted.) Falco v. Institute of Living,
254 Conn. 321, 328–29, 757 A.2d 571 (2000).
In State v. Jenkins, 73 Conn. App. 150, 162, 807 A.2d
485 (2002), rev’d in part on other grounds, 271 Conn.
165, 856 A.2d 383 (2004), the Appellate Court considered
whether a nursing assessment is a mental health record
as defined in § 52-146d. The Appellate Court recognized
that ‘‘[t]he purpose of the privilege is ‘to protect a thera-
peutic relationship. The statute provides a privilege for
confidential communications so that a patient may
safely disclose to his therapist personal information
that is necessary for effective treatment or diagnosis.’
Bieluch v. Bieluch, 190 Conn. 813, 819, 462 A.2d 1060
(1983) . . . .’’ (Citation omitted.) State v. Jenkins,
supra, 162.
The Appellate Court concluded that the nursing
assessment is a mental health record as defined in § 52-
146d, relying on the document itself that indicated that
the defendant authorized diagnosis and treatment of a
mental condition and testimony from the director of
the facility that the nursing assessment was conducted
under the supervision of a psychiatrist, and that all
the information, even the biographical data, is used to
‘‘gather information about mental health issues . . . .’’
(Internal quotation marks omitted.) Id.
Similar to the evidence in Jenkins, at the hearing
before the commission, Thomas Pisano, a psychiatrist,
testified that the medical and dental records at issue
were created at the hospital during Gilligan’s inpatient
treatment. Pisano further testified that the records were
created under the direction of a psychiatrist. Pisano
also testified that the superintendent of the facility at
the time Gilligan was a patient was a psychiatrist. The
foregoing examination of the plain language of §§ 52-
146d and 52-146e and prior interpretations support the
conclusion that the medical and dental records of Gilli-
gan are exempt from disclosure under § 52-146e.8
The plaintiffs assert that related statutory provisions
also support the conclusion that Gilligan’s medical and
dental records are exempt from disclosure under § 52-
146e. Specifically, the plaintiffs assert that General Stat-
utes § 17a-5459 supports its position. Section 17a-545
requires inpatient mental health facilities to conduct a
physical examination of every patient and to make those
reports part of the patient’s clinical record. We agree
with the plaintiffs that the legislature’s decision to
require physical examinations of all patients at inpatient
mental health facilities supports our conclusion that
such physical examinations and the resulting medical
record are part of the patient’s mental health record and
not subject to disclosure. Furthermore, the legislature’s
decision to require physical examinations of patients
at inpatient mental health facilities also indicates that
the legislature understood that mental health conditions
are often related to physical disorders and that the
proper treatment of mental health involves the treat-
ment of physical issues, as well.
Our construction of §§ 52-146d and 52-146e is also
consistent with the broad language of the psychiatrist-
patient privilege. As ‘‘[t]his court previously has
explained . . . § 52-146e spreads a veil of secrecy over
communications and records relating to the diagnosis
or treatment of a patient’s mental condition. With cer-
tain exceptions not pertinent to the present discussion,
the statute provides that no person may disclose or
transmit any communications and records . . . to any
person, corporation or governmental agency without
the consent of the patient or his authorized representa-
tive. [General Statutes § 52-146e (a)]. The broad sweep
of the statute covers not only disclosure to a defendant
or his counsel, but also disclosure to a court even for the
limited purpose of an in camera examination.’’ (Internal
quotation marks omitted.) State v. Kemah, 289 Conn.
411, 424, 957 A.2d 852 (2008). Accordingly, our under-
standing of the broad veil of secrecy created by the
psychiatrist-patient privilege also supports our conclu-
sion that medical and dental records that are created
by an inpatient mental health facility during the treat-
ment of a patient are exempt from disclosure under
§ 52-146e.
On the basis of the relevant statutory language,
related statutory provisions and prior interpretations
of the act, we conclude that the trial court improperly
affirmed the commission’s determination that Gilligan’s
medical and dental records were not exempt from dis-
closure under § 52-146e.
The judgment is reversed and the case is remanded
to the trial court with direction to sustain the plain-
tiffs’ appeal.
In this opinion ROGERS, C. J., and ZARELLA,
ESPINOSA and ROBINSON, Js., concurred.
1
In its appeal, the commission also asserts that the trial court improperly:
(1) substituted its own judgment for that of the commission when it deter-
mined that disclosure of the records related to Gilligan’s physical and dental
examinations would constitute an invasion of privacy under § 1-210 (b) (2);
(2) found that records related to Gilligan’s physical and dental examinations
were exempt from disclosure under § 1-210 (b) (2) when Gilligan was an
infamous arsenic murderess; (3) found that under § 1-210 (b) (2) disclosure
of the records related to Gilligan’s physical and dental examinations would
be highly offensive to a reasonable person when Gilligan has been deceased
since 1962 and is not survived by any relative; (4) found that records related
to Gilligan’s physical and dental examinations were exempt from disclosure
under § 1-210 (b) (2) when Gilligan’s privacy rights terminated upon her
death; (5) found that records related to Gilligan’s physical and dental exami-
nations were exempt from disclosure under § 1-210 (b) (2) as protecting
the privacy rights of Gilligan’s living relatives when Connecticut has yet to
recognize survivor privacy right and, alternatively, even if such rights were
recognized, they would not be applicable here because there is no evidence
that Gilligan is survived by a relative and the records at issue do not involve
gruesome images of her death. The plaintiffs also assert in their cross appeal
that the trial court improperly concluded that some of Gilligan’s medical
records were not exempt from disclosure under § 1-210 (b) (2). Because
we conclude that all of Gilligan’s medical records are exempt from disclosure
under § 52-146e, we need not reach these other claims.
2
It is not entirely clear from the commission’s brief whether it challenges
the plaintiffs’ standing to appeal under both §§ 1-210 (b) (2) and 52-146e.
To the extent that the commission challenges the plaintiffs’ standing under
both statutes and because standing is a jurisdictional question, we address
the commission’s claim as a threshold issue. The concurring and dissenting
opinion asserts that ‘‘I do not understand why the majority has analyzed
the department’s standing in its opinion. . . . Nevertheless, I agree with
the majority’s conclusion that the department has standing to raise this
exemption.’’ See footnote 2 of the concurring and dissenting opinion. The
concurring and dissenting opinion further asserts that ‘‘the commission
concedes that the department has standing to raise’’ the psychiatric records
privilege. Id. We disagree. From our review of the parties’ briefs, we do not
conclude that the commission concedes that the department has standing
in this appeal. Accordingly, out of an abundance of caution, we address the
standing issue.
3
In the present case, it is unclear whether the commission asserts that
the information officer of the department also lacks standing to appeal from
the decision of the commission. As the individual tasked with making sure
that the department complies with the act, the information officer faces risk
of prosecution for failure to follow an order of the commission. Therefore, to
the extent that the commission asserts that the information officer does
not have standing to appeal from its decision, we conclude that ‘‘[s]uch a
risk of prosecution establishes the requisite specific and personal interest
. . . .’’ (Internal quotation marks omitted.) Board of Pardons v. Freedom
of Information Commission, supra, 210 Conn. 650.
4
General Statutes § 52-146j provides: ‘‘(a) Any person aggrieved by a
violation of sections 52-146d to 52-146j, inclusive, may petition the superior
court for the judicial district in which he resides, or, in the case of a
nonresident of the state, the superior court for the judicial district of Hart-
ford, for appropriate relief, including temporary and permanent injunctions,
and the petition shall be privileged with respect to assignment for trial.
‘‘(b) Any person aggrieved by a violation of sections 52-146d to 52-146j,
inclusive, may prove a cause of action for civil damages.’’
5
In support of its claim, the commission cites to Chairman, Board of
Education v. Freedom of Information Commission, 60 Conn. App. 584,
760 A.2d 354 (2000) (disclosure of employee’s personnel or medical files),
Superintendent of Police v. Freedom of Information Commission, 222 Conn.
621, 629–30, 609 A.2d 998 (1992) (disclosure of pistol permits), and West
Hartford v. Freedom of Information Commission, 218 Conn. 256, 264–65,
588 A.2d 1368 (1991) (disclosure of addresses of retired employees). We
find these cases to be inapposite to the present case.
6
General Statutes § 52-146e provides: ‘‘(a) All communications and
records as defined in section 52-146d shall be confidential and shall be
subject to the provisions of sections 52-146d to 52-146j, inclusive. Except
as provided in sections 52-146f to 52-146i, inclusive, no 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 author-
ized representative.
‘‘(b) Any consent given to waive the confidentiality shall specify to what
person or agency the information is to be disclosed and to what use it will
be put. Each patient shall be informed that his refusal to grant consent will
not jeopardize his right to obtain present or future treatment except where
disclosure of the communications and records is necessary for the treatment.
‘‘(c) The patient or his authorized representative may withdraw any con-
sent given under the provisions of this section at any time in a writing
addressed to the person or office in which the original consent was filed.
Withdrawal of consent shall not affect communications or records disclosed
prior to notice of the withdrawal.’’
7
General Statutes § 52-146d provides in relevant part: ‘‘(2) ‘Communica-
tions and records’ means all 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, including
communications and records which occur in or are prepared at a mental
health facility . . . .’’
8
The interpretation of §§ 52-146d and 52-146e proffered in the concurring
and dissenting opinion is contrary to this court’s well established interpreta-
tion of this statute. The interpretation unnecessarily restricts the protections
afforded to psychiatric records of individuals who seek mental health treat-
ment in this state in favor of ‘‘this state’s abiding commitment to ‘the open
conduct of government and free public access to government records.’
Wilson v. Freedom of Information Commission, 181 Conn. 324, 328, 435
A.2d 353 (1980) . . . .’’ (Citations omitted.) The concurring and dissenting
opinion fails to acknowledge, however, that its very strict interpretation of
§§ 52-146d and 52-146e, which is completely unsupported by any case law,
serves to threaten the ‘‘broad privilege in the confidentiality of their psychiat-
ric communications and records’’ that the citizens of this state have long
enjoyed in all circumstances, not just those involving requests under the
act. (Internal quotation marks omitted.) Falco v. Institute of Living, supra,
254 Conn. 328. Indeed, the interpretation posed in the concurring and dis-
senting opinion in the present case would serve to discourage individuals
from seeking mental health treatment for fear that information contained
in records prepared by mental health and other medical providers would
not remain confidential, but could be disclosed without the patient’s consent.
We refuse to interpret the psychiatrist-patient privilege in such a manner
so as to thwart mental health treatment in this state at a time when society
is seeing the ever increasing need for individuals to seek out and receive
mental health treatment.
This court has repeatedly recognized that ‘‘[t]he privilege covers not only
communications between the patient and psychiatrist, but also all communi-
cations relating to the patient’s mental condition between the patient’s family
and the psychiatrist and his staff and employees, as well as records and
communications prepared at mental health facilities.’’ (Internal quotation
marks omitted.) State v. Kelly, 208 Conn. 365, 379, 545 A.2d 1048 (1988).
‘‘Our statutory scheme prohibits the disclosure of any covered records or
communications without the written consent of the patient or his authorized
representative.’’ State v. Jenkins, 271 Conn. 165, 180–81, 856 A.2d 383 (2004).
Contrary to this well established interpretation, and without any citation
to authority, the concurring and dissenting opinion would have us remand
the case for further findings as to whether the medical and dental records
were prepared as part of Gilligan’s mental health treatment. A remand in
this matter is unnecessary. The plaintiffs have already presented testimony
that the records at issue are ‘‘the psychiatric and medical records of [the
hospital] of . . . Gilligan.’’ The plaintiffs’ witness further testified that the
records were created under the direction of a psychiatrist, were prepared
at the hospital and that the hospital was considered a mental health facility
for the treatment and diagnosis of mental illness at the time the communica-
tions occurred. Furthermore, as the concurring and dissenting opinion
acknowledges, ‘‘[i]f the documents themselves demonstrate that the privilege
applies, a proponent can meet this burden simply by offering the documents
for in camera inspection by the commission’s hearing officer . . . .’’ Not
only is such a task nearly impossible for records that were created at a
mental health facility approximately fifty to ninety years ago, but such
distinctions are inconsistent with the purpose of §§ 52-146d and 52-146e
and our interpretation of those statutes. See, e.g., State v. Jenkins, supra,
271 Conn. 176 (nursing assessment prepared at mental health facility where
patient was being treated covered under § 52-146d). Moreover, the approach
adopted in the concurring and dissenting opinion is inconsistent with other
courts that have addressed this issue. See, e.g., Ex parte Western Mental
Health Center, 884 So. 2d 835, 840 (Ala. 2003) (‘‘[i]t is not disputed that
. . . medical records, created during the psychiatrist-patient relationship,
are included in the confidential relationship and are also privileged’’ [internal
quotation marks omitted]). Indeed, ‘‘[r]ecognizing the rule that hospital and
medical records are generally within the physician-patient privilege, [courts
in many jurisdictions have] allowed hospitals to assert the privilege on
behalf of their patients.’’ Annot., 10 A.L.R. 4th 552, § 4 (1981). In the present
case, the plaintiffs have satisfied their burden, through testimony and by
virtue of the records themselves, that the documents fall within the protec-
tions of §§ 52-146d and 52-146e.
The disclosure at issue is not covered by any of the exceptions in § 52-
146f. ‘‘It is just as clear that no exception is available beyond those contained
in § 52-146f. . . . With respect to § 52-146e, we have noted that the legisla-
ture has narrowly drafted the exceptions to the general rule against disclo-
sure after carefully balancing the important countervailing considerations.’’
(Citation omitted.) Falco v. Institute of Living, supra, 254 Conn. 330.
Moreover, the concurring and dissenting opinion completely ignores the
fact that many of the records that it finds to be subject to disclosure identify
the patient and include the patient’s diagnosis. As stated previously in this
opinion, in discussing the disclosure of identifying information contained
within records of a mental health facility, this court has reasoned as follows:
‘‘Although we are cognizant that [c]ommunications that bear no relationship
to the purpose for which the privilege was enacted do not obtain shelter
under the statute and are admissible subject to the normal rules of evidence
. . . we are equally convinced that the protection of communications that
identify a patient are central to the purpose of the statute. The language of
the statute supports this conclusion. Section 52-146e (a) specifically prohib-
its the disclosure or transmission of any communications or records that
would identify a patient . . . . Section 52-146d provides that the phrase
identify a patient refer[s] to 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, or (B) codes or numbers which are in general use outside of the mental
health facility which prepared the communications and records . . . . Fur-
ther, the fact that an explicit exception contained in subdivision (3) of § 52-
146f permits the disclosure of a patient’s name, address and . . . [t]hat the
person was in fact a patient for purposes of collection disputes between
the hospital and the patient, lends weight to our conclusion that the general
rule against disclosure applies with equal force to identity as to other infor-
mation.’’ (Internal quotation marks omitted.) Id., 328–29.
‘‘We also disagree . . . that identifying information is of lesser impor-
tance within the statutory scheme than other communications and records.
The confidentiality of a patient’s identity is as essential to the statutory
purpose of preserving the therapeutic relationship as the confidentiality of
any other information in a patient’s communications and records. The statute
recognizes the unfortunate reality that a stigma may attach to one who
seeks psychiatric care, and that revealing a patient’s identity may subject
him or her to embarrassment, harassment or discrimination.’’ Id., 329.
We are bound to apply this court’s interpretation of §§ 52-146d and 52-
146e in Falco v. Institute of Living, supra, 254 Conn. 329, which prohibits
the disclosure of any documents from which a patient can be identified.
None of the parties have asked us to overrule or modify our decision in
that case. Furthermore, in the fifteen years since Falco, the legislature
has not acted to amend §§ 52-146d and 52-146e in response to this court’s
interpretation. ‘‘Although we are aware that legislative inaction is not neces-
sarily legislative affirmation . . . we also presume that the legislature is
aware of [this court’s] interpretation of a statute, and that its subsequent
nonaction may be understood as a validation of that interpretation.’’ (Internal
quotation marks omitted.) Caciopoli v. Lebowitz, 309 Conn. 62, 78, 68 A.3d
1150 (2013). By choosing not to legislatively overrule Falco, the legislature
has acquiesced to this court’s interpretation of §§ 52-146d and 52-146e.
Indeed, one of the indicators of legislative acquiescence to our interpretation
of a statute is the passage of ‘‘an appropriate interval [of time] to permit
legislative reconsideration . . . without corrective legislative action
. . . .’’ Hummel v. Marten Transport, Ltd., 282 Conn. 477, 494–95, 923 A.2d
657 (2007).
The concurring and dissenting opinion relies on State v. Montgomery,
254 Conn. 694, 759 A.2d 995 (2000). In Montgomery, Elaine Janas, a mental
health assistant at Cedarcrest Hospital, testified at a criminal trial regarding
a telephone conversation she overheard between the defendant and a third
party unconnected to the facility, while the defendant was a patient at the
mental health facility in which she worked. Id., 722–23. The defendant
appealed claiming that ‘‘because Janas was assigned by a psychiatrist to
observe him and to record his behavior, anything that the defendant said
within her earshot necessarily related to his diagnosis and treatment.’’ Id.,
723. This court rejected the defendant’s claim and concluded that the trial
court properly allowed Janas to testify ‘‘in the presence of the jury regarding
the defendant’s statement.’’ Id. This court reasoned as follows: ‘‘As the trial
court concluded, the communication at issue was not between the defendant
and a psychiatrist or Janas, but, rather, between the defendant and an
unknown third party located outside of the hospital. Moreover, the defen-
dant’s instruction to that third party not to ‘forget [he] was with [the third
party] last night’ bore no relation to the defendant’s diagnosis or treatment.
The mere fact that Janas was assigned to observe the defendant for his own
protection does not transform the defendant’s statement into a protected
communication under the psychiatrist-patient privilege. A contrary determi-
nation would extend that privilege well beyond the plain statutory language
that defines it. Accordingly, we reject the defendant’s claim that the trial
court improperly permitted the state to elicit Janas’ testimony regarding the
defendant’s statement.’’ Id., 725.
A review of the opinion and the briefs in Montgomery demonstrates that
the defendant never claimed that Janas’ testimony violated §§ 52-146d and
52-146e because it revealed the defendant’s identity as an individual who
received treatment at the mental health facility. Indeed, although Montgom-
ery was decided approximately two months after Falco, the court did not
address Falco in Montgomery. The absence of such a reference indicates
that this court did not consider Montgomery to raise an issue regarding
disclosure of identifying information. We conclude that Montgomery is inap-
posite to the present case because it involved a communication by the
patient to a third party, which is not an issue in the present case.
Moreover, the concurring and dissenting opinion misstates the factual
and procedural background of Montgomery. Specifically, the concurring
and dissenting opinion explains as follows: ‘‘[Janas] was permitted to testify
about patient conversations that she overheard even though her testimony
identified the defendant as a psychiatric inpatient. . . . [Janas] was allowed
to testify before the court, initially outside the presence of the jury, that
the defendant was treated at the psychiatric hospital where she worked;
that a psychiatrist had instructed her to monitor the defendant on a ‘ ‘‘one-
to-one’ ’’ basis and take notes of his activities every fifteen minutes; and
that such protocol was typical for suicidal patients. . . . The trial court
allowed her testimony and she repeated much of this same information
to the jury.’’ (Citations omitted; emphasis added.) This is inaccurate. In
Montgomery, this court explained as follows: ‘‘The defendant filed a motion
in limine to preclude [Janas’] testimony . . . . The trial court conducted
a hearing on the defendant’s motion outside the presence of the jury. At
the hearing, Janas testified that, pursuant to a psychiatrist’s instructions,
she was assigned to monitor the defendant on a ‘one-to-one’ basis on . . .
the day after the homicide. Pursuant to those instructions, Janas was to
remain within ‘arm’s length’ of the defendant at all times and to take notes
regarding the defendant’s activities every fifteen minutes. Janas further
testified that ‘one-to-one’ supervision is ordered for a patient’s protection,
usually when that patient is suicidal.’’ (Emphasis added.) State v. Montgom-
ery, surpa, 254 Conn. 722–23. In contrast, when describing Janas’ trial testi-
mony, this court only stated: ‘‘Janas . . . testified in the presence of the jury
regarding the defendant’s statement.’’ (Emphasis added.) Id., 723. Therefore,
unlike the representation in the concurring and dissenting opinion, nothing
in this court’s opinion in Montgomery explains to what extent, if any, Janas’
testimony revealed the identity of the defendant in that case as a psychiatric
inpatient. Accordingly, we are not persuaded that Montgomery is relevant
to our analysis in the present case.
The concurring and dissenting opinion asserts that certain administrative
documents should not be exempt from disclosure. We disagree. There are
approximately four letters from the superintendent of the facility to Gilligan’s
daughter, which contain identifying information and responses to questions
about her treatment. There is one letter from the superintendent to Metropol-
itan Life Insurance that details Gilligan’s diagnosis, psychiatric treatment
and mental state. We conclude that these correspondence are covered under
§§ 52-146d and 52-146e because they contain identifying information and
information related to Gilligan’s diagnosis. See Falco v. Institute of Living,
supra, 254 Conn. 322–23 (concluding that facility was not required to release
‘‘name, last known address and social security number’’ of former patient).
The concurring and dissenting opinion asserts that the fact that Gilligan’s
commitment to the hospital is a matter of public record and that the depart-
ment has already released numerous records indicating her commitment to
the hospital are reason to disclose additional documents that identify her.
We disagree. The issue before us is only whether these particular documents
should be disclosed. We have not been asked to indicate whether the depart-
ment’s prior disclosures were proper and those disclosures are not, there-
fore, part of the present appeal. Consequently, we do not address those
prior disclosures. We also conclude that interpreting the psychiatrist-patient
privilege in light of what the public may or may not know about the person
or his or her medical history is a dangerous proposition not authorized by
statute. As this court stated in Falco, ‘‘it is contrary to the language of the
statute and the intent of the legislature for courts to make discretionary
case-by-case determinations of when the privilege may be overridden.’’ Id.,
331. This is precisely what the concurring and dissenting opinion is sug-
gesting we should do in the present case. Thus, while the concurring and
dissenting opinion may choose to criticize our approach as ‘‘heavy-handed’’
and ‘‘yield[ing] the detritus of a needless collision between two competing
statutory mandates,’’ which is ‘‘at odds with § 52-146e’’ and an ‘‘overbroad
interpretation of the privilege,’’ we are merely applying our established
case law.
The concurring and dissenting opinion further asserts that Pisano testified
that ‘‘certain documents were not psychiatric records, including the corre-
spondence with Gilligan’s daughter.’’ (Emphasis omitted.) We disagree with
this representation of the testimony. Pisano cataloged the documents in the
file, but never offered an opinion as to whether all of the documents were
or were not psychiatric records. The testimony was as follows:
‘‘[Assistant Attorney General]: . . . [W]hen you reviewed the records, did
you find any records that were not specifically psychiatric in nature?
‘‘[Pisano]: Well, as stated, there was the newspaper clippings. There was
the correspondence between the warden at the Connecticut State Prison
in Wethersfield and the superintendent at [the hospital]. There was—
***
‘‘The Hearing Officer: The . . . original question was, as I heard it, were
there records that were not psychiatric records?
***
‘‘[Pisano]: Okay. And there was . . . the correspondence by the state’s
attorney. There was the news clippings, the Metropolitan Life Insurance.
There was correspondence between the superintendent and . . . the
patient’s daughter.’’
We disagree with the concurring and dissenting opinion’s assertion that
the plaintiffs’ witness testified that the correspondence between the superin-
tendent and the patient’s daughter was not a psychiatric record. Even if the
witness had offered his opinion as to whether they were psychiatric records,
a determination of whether the records at issue fall within the protection
of §§ 52-146d and 52-146e is a legal determination, not a factual one. More-
over, the plaintiffs disclosed many of the documents listed by the witness,
including many communications from Metropolitan Life Insurance to the
hospital, the correspondence from the state’s attorney, the correspondence
between the warden and the superintendent, and the newspaper clippings.
9
General Statutes § 17a-545 provides: ‘‘Every patient hospitalized under
any of sections 17a-540 to 17a-550, inclusive, shall receive a physical examina-
tion within five days of his hospitalization, and at least once each year
thereafter. Every patient shall be examined by a psychiatrist within forty-
eight hours of his hospitalization, and at least once each six months there-
after. Reports of all physical and psychiatric examinations shall be completed
and signed by the examining physicians and made a part of the patient’s
permanent clinical record.’’