Commissioner of Public Health v. Freedom of Information Commission ( 2014 )

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COMMISSIONER OF PUBLIC HEALTH v. FREEDOM
OF INFORMATION COMMISSION ET AL.
(SC 19046)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Vertefeuille, Js.
Argued December 12, 2013—officially released March 25, 2014
Rosemary M. McGovern, assistant attorney general,
with whom, on the brief, was George Jepsen, attorney
general, for the appellant-appellee (plaintiff).
Jonathan R. Donnellan, pro hac vice, with whom
were Stephen H. Yuhan, pro hac vice, and, on the brief,
Cameron Stracher, for the appellee-appellant (defen-
dant Greenwich Time).
Lisa Fein Siegel, commission counsel, with whom,
on the brief, was Colleen M. Murphy, general counsel,
for the appellee (named defendant).
David B. Fein, United States attorney, John B.
Hughes, assistant United States attorney, Michael S.
Raab, pro hac vice, and H. Thomas Byron III, pro hac
vice, filed a brief for the United States of America as
amicus curiae.
Opinion
McDONALD, J. Congress created the National Prac-
titioner Data Bank (Practitioner Data Bank) and the
Healthcare Integrity and Protection Data Bank (Health-
care Data Bank) as national clearinghouses for, inter
alia, information from health care entities and licensing
boards regarding adverse actions taken against physi-
cians and other licensed health care practitioners. The
question we must answer in the present case is whether
records received from these federal data banks by a
state agency authorized to request this confidential
information can be subject to disclosure under our Free-
dom of Information Act (act), General Statutes § 1-200
et seq.
The named defendant, the Freedom of Information
Commission (commission), concluded that federal law
permits disclosure of Practitioner Data Bank records
if they are subject to disclosure under state law such
as the act, but does not permit disclosure of Healthcare
Data Bank records. The trial court dismissed the appeal
of the plaintiff, the Commissioner of Public Health
(department),1 from the commission’s decision order-
ing the department to disclose Practitioner Data Bank
records to a local newspaper, the defendant Greenwich
Time (newspaper). The trial court also dismissed the
newspaper’s appeal from the commission’s decision
insofar as it had denied the newspaper’s request for an
order to disclose the Healthcare Data Bank records.
The department appealed and the newspaper cross
appealed from the trial court’s judgment. We conclude
that a public agency may not disclose to an unautho-
rized person or entity any records received from either
the Practitioner Data Bank or the Healthcare Data Bank,
although the agency may disclose to a member of the
public information originating from the agency’s own
files if disclosure is otherwise required under the act.
Accordingly, we reverse the trial court’s judgment with
respect to the department’s appeal.
The record reveals the following undisputed facts. In
August, 2005, a married couple, proceeding as Jane
Smith and John Smith, filed an action against Ben Rama-
ley, a Greenwich obstetrician/gynecologist from whom
the couple had obtained an intrauterine insemination
procedure. They alleged that DNA tests of the twin girls
born as a result of that procedure proved that Ramaley
had inseminated Jane Smith with the sperm of someone
other than her husband. The complaint further alleged,
upon information and belief, that Ramaley intentionally
inseminated Jane Smith with his own sperm. Before
discovery was completed, the case was settled and the
records were sealed.
In January, 2007, the department, which had issued
Ramaley’s license to practice as a physician and surgeon
in Connecticut, received notification from the Prac-
titioner Data Bank of the settlement of a malpractice
action against Ramaley. See 42 U.S.C. § 11134 (c) (1)
(2006). The department initiated an investigation and
brought in a consultant from the American Board of
Obstetrics and Gynecology, Robert J. Gfeller, to review
Ramaley’s conduct in connection with the case. In Octo-
ber, 2007, Gfeller issued a report finding gross violations
of the standard of care by Ramaley, but no such viola-
tion with respect to the specific allegation that Ramaley
had used his own sperm in the insemination procedure
due to the absence of a DNA test that would give credi-
ble, positive evidence of that fact. Thereafter, the
department and Ramaley entered into a consent order,
designated as a public document, under which Ramaley
did not contest the department’s allegation that he had
inseminated a patient with the wrong man’s sperm, but
also did not admit any wrongdoing or guilt. The order
indicated that Ramaley no longer performed intrauter-
ine insemination and that he had agreed to a reprimand
on his license and a civil penalty of $10,000.
The newspaper learned of the department’s response
to the allegations against Ramaley, and in November,
2009, it sent a letter to the department making a request
under the act for all records reviewed by Gfeller in
connection with his report, including exhibit A, identi-
fied in the report as ‘‘National Practitioner Data Bank.’’
After the department complied with the request in part
but failed to produce, inter alia, exhibit A, the newspa-
per filed a complaint with the commission.2 At a hearing
before the commission, the department argued that
exhibit A contained both Practitioner Data Bank and
Healthcare Data Bank records and that federal law pro-
vided a basis to withhold these records. The commis-
sion concluded that federal regulations barred
disclosure of records received from the Healthcare Data
Bank, but that other regulations pertaining to the Prac-
titioner Data Bank did not bar disclosure of records
received from that data bank.
The department and the newspaper both appealed
from the commission’s decision to the Superior Court,
which thereafter affirmed the decision and rendered
judgment dismissing the appeals. The trial court deter-
mined that the department was required to disclose
records that it had received from the Practitioner Data
Bank under this court’s decision in Director of Health
Affairs Policy Planning v. Freedom of Information
Commission, 293 Conn. 164, 180 n.13, 977 A.2d 148
(2009), but that different regulatory language
addressing Healthcare Data Bank records that was not
considered in that case precluded disclosure of those
records. Appeals by both parties followed.3 Thereafter,
we granted permission to the United States of America
to participate as amicus curiae.
On appeal, the department and the newspaper agree
that the federal regulations governing confidentiality
of Practitioner Data Bank and Healthcare Data Bank
records should be construed to have the same effect,
despite certain textual differences, but disagree as to
the proper construction. The commission, which had
taken the position in its decision that these textual
differences compelled different treatment, represented
at oral argument before this court that its position has
changed in light of a recent amendment to the governing
regulations brought to its attention by the amicus curiae
that makes clear that records from both data banks
are not subject to disclosure. The commission further
contends that this amendment is clarifying and, there-
fore, should be applied as the governing interpretation
in the present case. The amicus contends in its brief
that the statutes and implementing regulations of the
United States Department of Health and Human Ser-
vices (federal agency) always have precluded disclo-
sure of records received from both data banks, and that
the recent amendments merely clarify the regulations
at issue. We conclude that any ambiguities in the regula-
tory scheme have been dispelled by the clarifying
amendment, under which the records are not subject
to public disclosure under the act.
Because the present case requires interpretation of
federal statutes and regulations, we must interpret this
scheme in accordance with federal law.4 See Commis-
sioner of Correction v. Freedom of Information Com-
mission, 307 Conn. 53, 65–66, 52 A.3d 636 (2012); Bell
Atlantic Mobile, Inc. v. Dept. of Public Utility Control,
253 Conn. 453, 470–71, 754 A.2d 128 (2000). Under fed-
eral law, ‘‘congressional enactments and administrative
rules will not be construed to have retroactive effect
unless their language requires this result. . . . This pre-
sumption . . . applies to every statute, which takes
away or impairs vested rights acquired under existing
laws, or creates a new obligation, imposes a new duty,
or attaches a new disability in respect to transactions
or considerations already past . . . . Notwithstanding
this presumption, several Courts of Appeals have held
that when an amendment merely clarifies existing law,
rather than effecting a substantive change to the law,
then retroactivity concerns do not come into play.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Leshinsky v. Telvent GIT, S.A., 873 F.
Supp. 2d 582, 590 (S.D.N.Y. 2012); id., 590–91 (citing
cases from Third, Fourth, Seventh, Ninth, Eleventh and
D.C. Circuit Courts of Appeals). Although ‘‘ ‘[t]here is
no bright-line test’ ’’ for determining whether an amend-
ment clarifies existing law; Levy v. Sterling Holding
Co., LLC, 544 F.3d 493, 506 (3d Cir. 2008), cert. denied,
557 U.S. 919, 129 S. Ct. 2827, 174 L. Ed. 2d 553 (2009);
decisions point to several factors for a court to consider:
‘‘(1) whether the text of the old regulation was ambigu-
ous . . . (2) whether the new regulation resolved, or
at least attempted to resolve, that ambiguity . . . (3)
whether the new regulation’s resolution of the ambigu-
ity is consistent with the text of the old regulation . . .
and (4) whether the new regulation’s resolution of the
ambiguity is consistent with the agency’s prior treat-
ment of the issue . . . .’’ (Citations omitted.) Id., 507;
see also Middleton v. Chicago, 578 F.3d 655, 663–65 (7th
Cir. 2009) (court should consider: [1] whether enacting
body declared that it was clarifying prior enactment;
[2] whether conflict or ambiguity existed prior to
amendment; and [3] whether amendment is consistent
with reasonable interpretation of prior enactment and
its legislative history). The fact that ‘‘an amendment
alters, even significantly alters, the original statutory
language . . . does not necessarily indicate that the
amendment institutes a change in the law.’’ (Internal
quotation marks omitted.) Brown v. Thompson, 374
F.3d 253, 259 (4th Cir. 2004). Rather, the court will apply
the relevant factors to determine whether the enacting
body merely ‘‘[made] what was intended all along even
more unmistakably clear.’’ (Internal quotation marks
omitted.) Id.
With this framework in mind, we turn first to the
statutory and regulatory scheme in effect when the
newspaper made its request for disclosure in Novem-
ber, 2009. The Health Care Quality Improvement Act of
1986 (1986 federal act),5 which created the Practitioner
Data Bank, was enacted to improve health care and
address increasing medical malpractice that warranted
greater efforts than those that could be undertaken by
individual states. 42 U.S.C. § 11101 (1) (2006). The 1986
federal act: (1) encouraged effective professional peer
review of physicians and licensed health care providers
by providing immunity from liability under federal law
for participants engaging in good faith review; 42 U.S.C.
§§ 11101 and 11111 (2006); and (2) created a national
database for information about adverse actions against
such health care providers. Such adverse actions, which
are required to be reported, include medical malprac-
tice payments, sanctions from licensing boards, and
certain professional review actions. See 42 U.S.C.
§§ 11131 through 11133 (2006). State licensing boards,
insurance companies making payments under a policy
of insurance, hospitals and other health care entities are
required to provide this information. 42 U.S.C. §§ 11131
through 11133 (2006). In turn, these health care entities
are authorized, and in some cases have a duty, to request
this information. 42 U.S.C. §§ 11135 and 11137 (a)
(2006).
With respect to the use of information in the Prac-
titioner Data Bank, the 1986 federal act provides in
relevant part: ‘‘Information reported under this sub-
chapter is considered confidential and shall not be dis-
closed (other than to the physician or practitioner
involved) except with respect to professional review
activity . . . or in accordance with regulations of the
Secretary [of Health and Human Services (secretary)
permitting disclosure for employment related deci-
sions]. Nothing in this subsection shall prevent the
disclosure of such information by a party which is
otherwise authorized, under applicable State law, to
make such disclosure. . . .’’ (Emphasis added.) 42
U.S.C. § 11137 (b) (1) (2006). The implementing regula-
tion in turn provided: ‘‘Information reported to the
[Practitioner Data Bank] is considered confidential and
shall not be disclosed outside the [federal agency],
except as specified in § 60.10, § 60.11 and § 60.14 [of
title 45 of the Code of Federal Regulations]. Persons
and entities which receive information from the [Prac-
titioner Data Bank] either directly or from another
party must use it solely with respect to the purpose
for which it was provided. Nothing in this paragraph
shall prevent the disclosure of information by a party
which is authorized under applicable State law to
make such disclosure.’’ (Emphasis added.) 45 C.F.R.
§ 60.13 (a) (2009).
Several years after it created the Practitioner Data
Bank, Congress enacted the Health Insurance Portabil-
ity and Accountability Act of 1996 (1996 federal act),6
in which it authorized the creation of the Healthcare
Data Bank—‘‘a national health care fraud and abuse
data collection program for the reporting of final
adverse actions (not including settlements in which no
findings of liability have been made) against health care
providers, suppliers, or practitioners . . . .’’ 42 U.S.C.
§ 1320a-7e (a) (2006). Information in the Healthcare
Data Bank is available to federal and state government
agencies and health plans. 42 U.S.C. § 1320-7e (d) (1)
(2006). There is ample evidence that the Healthcare
Data Bank and the Practitioner Data Bank are comple-
mentary to each other. For example, adverse actions
reported to the Healthcare Data Bank include some of
the same information reported to the Practitioner Data
Bank, such as licensure actions, as well as additional
similar information. See 42 U.S.C. § 1320a-7e (b) (1)
and (g) (1) (2006) (requiring reporting of, inter alia,
civil judgments other than malpractice claims, criminal
convictions, exclusion from participation in federal or
state health care programs and actions by state and
federal agencies responsible for licensing and certifica-
tion decisions). Moreover, in implementing the Health-
care Data Bank, the secretary is directed to do so in a
manner that avoids duplication of the reporting require-
ments of the Practitioner Data Bank under the 1986
federal act. 42 U.S.C. § 1320a-7e (f) (2006).
With respect to the confidentiality of Healthcare Data
Bank records, the 1996 federal act provides no specific
parameters but instead authorizes the secretary and the
United States Attorney General to issue guidelines to
carry out the program; 42 U.S.C. § 1320a-7c (a) (3) (A)
(2006); including ‘‘procedures to assure that such infor-
mation is provided and utilized in a manner that appro-
priately protects the confidentiality of the information
and the privacy of individuals receiving health care
services and items.’’ 42 U.S.C. § 1320a-7c (a) (3) (B) (ii)
(2006). The implementing regulation in turn provided:
‘‘Information reported to the [Healthcare Data Bank] is
considered confidential and will not be disclosed out-
side the [federal agency], except as specified in [45
C.F.R.] §§ 61.12 and 61.15. Persons and entities receiv-
ing information from the [Healthcare Data Bank],
either directly or from another party, must use it solely
with respect to the purpose for which it was provided.
Nothing in this section will prevent the disclosure of
information by a party from its own files used to create
such reports where disclosure is otherwise authorized
under applicable State or Federal law.’’ (Emphasis
added.) 45 C.F.R. § 61.14 (2009).
A comparison of those sections of the Practitioner
Data Bank and Healthcare Data Bank regulations that
provide an exception to the circumscribed limits to
disclosure reveals a clear textual difference. Whereas
the Healthcare Data Bank regulation provides that
‘‘[n]othing in this section will prevent the disclosure of
information by a party from its own files used to create
such reports where disclosure is otherwise authorized
under applicable State or Federal law’’; (emphasis
added) 45 C.F.R. § 61.14 (2009); the Practitioner Data
Bank regulation contains no such language. Cf. 45
C.F.R. § 60.13 (a) (2009) (‘‘[n]othing in this paragraph
shall prevent the disclosure of information by a party
which is authorized under applicable State law to make
such disclosure’’). If we were to view the Healthcare
Data Bank regulation in isolation, we undoubtedly
would be compelled to conclude that the commission
could not order a public agency to disclose information
received from the Healthcare Data Bank but could only
order disclosure of information from the agency’s own
files that had been provided to the Healthcare Data
Bank. Review of the Practitioner Data Bank regulation
in isolation might yield a different conclusion because
of the absence of the phrase ‘‘from its own files used
to create such reports.’’ Indeed, this court reached pre-
cisely that conclusion in Director of Health Affairs
Policy Planning v. Freedom of Information Commis-
sion, supra, 293 Conn. 180 n.13 (summarily concluding,
in reliance on last sentence of 45 C.F.R. § 60.13 [a], that,
because disclosure was authorized under act, disclo-
sure was permitted under regulation).
There is persuasive evidence, however, that despite
this textual difference, the regulations were intended
to be construed consistently. As we previously have
explained, some of the same information collected in
the Healthcare Data Bank also is provided to the Prac-
titioner Data Bank. It would be incongruous to conclude
that information in Healthcare Data Bank records is
not subject to disclosure yet that same information is
subject to disclosure once provided to the Practitioner
Data Bank. There did not appear to be any mechanism
to segregate these records to avoid this problem. See
45 C.F.R. § 61.1 (b) (2009) (noting that ‘‘[the federal
agency’s] consolidated reporting mechanism . . . will
sort the appropriate actions into the [Healthcare Data
Bank], [the Practitioner Data Bank], or both’’ [empha-
sis added]).
In order to construe the regulations consistently,
however, we would need to either treat as superfluous
the language in the Healthcare Data Bank regulation
referring to records created from a party’s own files
or engraft such language as a judicial gloss onto the
Practitioner Data Bank regulation. Although the former
approach would yield a result consistent with this
court’s conclusion in Director of Health Affairs Policy
Planning,7 there are strong indications that the latter
is consistent with the intent of Congress and the federal
agency implementing the federal acts. First, precluding
public disclosure would be consistent with the require-
ment barring an entity from using information received
from the data banks for any purpose other than the one
for which the records were provided. 45 C.F.R. §§ 60.13
(a) and 61.14 (2009). Indeed, a regulation providing for
a civil penalty against persons who improperly disclose,
use or permit access to information reported in accor-
dance with the scheme, provides: ‘‘The disclosure of
information reported in accordance with part B of title
IV in response to a subpoena or a discovery request is
considered to be an improper disclosure in violation of
[42 U.S.C. § 11137]. However, disclosure or release by
an entity of original documents or underlying records
from which the reported information is obtained or
derived is not considered to be an improper disclosure
in violation of [42 U.S.C. § 11137].’’ (Emphasis added.)
42 C.F.R. § 1003.102 (b) (6) (2009). Thus, the regulation
indicates a distinction between the sources of the infor-
mation as determinative of whether disclosure is per-
missible. Second, in the statute addressing disclosure
of Practitioner Data Bank records, it first addresses
limits on disclosure of information ‘‘reported’’ to the
Practitioner Data Bank and then provides in the sen-
tence that immediately follows: ‘‘Nothing in this subsec-
tion shall prevent the disclosure of such information by
a party which is otherwise authorized, under applicable
State law, to make such disclosure.’’ (Emphasis added.)
42 U.S.C. § 11137 (b) (1) (2006). When read in context,
‘‘such information’’ appears to refer to information
reported to the Practitioner Data Bank, meaning from
the party’s own files.8 Third, this construction is consis-
tent with the one publicly articulated by the implement-
ing federal agency since 2001. See U.S. Dept. of Health
and Human Services, Health Resources and Services
Administration, ‘‘National Practitioner Data Bank
Guidebook,’’ (September 2001) pp. A-4 and A-5, avail-
able at http://www.ire.org/media/uploads/files/datali-
brary/npdb/guidebook.pdf (last visited March 12, 2014).
Finally, we note that this construction would avoid the
anomaly of permitting public disclosure of information
submitted to the data banks from a state whose law
would bar public disclosure of that information.
Whatever ambiguity might have remained has been
dispelled by the recent amendments to the governing
scheme. Under § 6403 of the Patient Protection and
Affordable Care Act of 2010, Pub. L. No. 111-148, 124
Stat. 763, ‘‘the Secretary [is required] to establish a
transition period to transfer all data in the [Healthcare
Data Bank] to the [Practitioner Data Bank], and, once
completed, to cease operations of the [Healthcare Data
Bank]. Information previously collected and disclosed
to eligible parties through the [Healthcare Data Bank]
will then be collected and disclosed to eligible parties
through the [Practitioner Data Bank].’’ 78 Fed. Reg.
20,473; see also id., 20,474 (‘‘[§] 6403 . . . eliminate[s]
duplication between the [Healthcare Data Bank] and
the [Practitioner Data Bank]’’). The new regulation,
effective May 6, 2013, prescribes limitations on the dis-
closure of data bank information following this consoli-
dation: ‘‘Information reported to the [Practitioner Data
Bank] is considered confidential and shall not be dis-
closed outside the [federal agency], except as specified
in §§ 60.17, 60.18, and 60.21 of this part. Persons and
entities receiving information from the [Practitioner
Data Bank], either directly or from another party, must
use it solely with respect to the purpose for which
it was provided. The Data Bank report may not be
disclosed, but nothing in this section will prevent the
disclosure of information by a party from its own files
used to create such reports where disclosure is other-
wise authorized under applicable state or Federal law.’’
(Emphasis added.) 45 C.F.R. § 60.20 (a) (2013). Thus,
there is no question that, under current law, the newspa-
per would not be entitled to either Practitioner Data
Bank records or Healthcare Data Bank records, but
nonetheless could receive information subject to disclo-
sure under the act that the department had obtained
independently from other sources in its own files.
Notably, the federal agency, in response to a com-
ment on the final rules requesting clarification as to
whether Practitioner Data Bank records would be sub-
ject to disclosure under a state freedom of information
act, explained that the new regulations did not change
the current disclosure limitations, that the change from
the existing Practitioner Data Bank regulation was
‘‘clarifying language,’’9 and that disclosure would not
be permitted under such acts except as to information
from a party’s own files that had been used to create
the report. See 78 Fed. Reg. 20,473, 20,483;10 see also
id. (explaining in ‘‘Summary of Revisions in the Final
Rule’’ that federal agency had ‘‘modified language in
this section to clarify that a Data Bank report itself
may not be disclosed, except as permitted by [45 C.F.R.]
§§ 60.17, 60.18, and 60.21 [2013]’’ [emphasis added]); 77
Fed. Reg. 9138, 9149 (The federal agency, in its notice
of the proposed rule, explained: ‘‘We propose to slightly
amend redesignated [45 C.F.R.] § 60.20 so that it reflects
the limitations on disclosure provisions based on cur-
rent [Practitioner Data Bank] and [Healthcare Data
Bank] regulatory language. These confidentiality
requirements would apply to all information obtained
from the [Practitioner Data Bank].’’ [Emphasis added.]).
We conclude that the federal statutory and regulatory
schemes in effect when the newspaper made its request
strongly suggest that records received from both the
Practitioner Data Bank and the Healthcare Data Bank
would not be subject to disclosure under the act. We
further conclude that this interpretation is confirmed
by the subsequent, clarifying enactments. See Erlen-
baugh v. United States, 409 U.S. 239, 243–44, 93 S. Ct.
477, 34 L. Ed. 2d 446 (1972) (‘‘a later act can . . . be
regarded as a legislative interpretation of [an] earlier
act . . . in the sense that it aids in ascertaining the
meaning of the words as used in their contemporary
setting, and is therefore entitled to great weight in
resolving any ambiguities and doubts’’ [internal quota-
tion marks omitted]). Contrary to the newspaper’s sug-
gestion, we do not find it significant that the amended
regulation, 45 C.F.R. § 60.20 (2013), was made effective
on May 6, 2013. This regulation was adopted in connec-
tion with the consolidation of the two data banks, for
which it was necessary to provide a transition period.
In addition, the new regulation simply confirms the
most reasonable interpretation of the existing schemes.
Finally, we note that the clarifying language is not, as
a substantive matter, applied retroactively because the
clarification simply makes clear what the law meant
all along. See Commissioner of Internal Revenue v.
Wheeler, 324 U.S. 542, 546, 65 S. Ct. 799, 89 L. Ed. 1166
(1945) (‘‘if the regulation itself was valid and effective,
the [later] clarifying amendment . . . added nothing to
the liability of these taxpayers, and even though the
Tax Court relied on it rather than on the regulation, no
question of retroactivity is presented’’); ABKCO Music,
Inc. v. LaVere, 217 F.3d 684, 689 (9th Cir.) (‘‘[i]f . . .
[the statute] merely clarifies what [the prior statute]
was originally intended to mean . . . it has no retroac-
tive effect that might be called into constitutional ques-
tion’’ [internal quotation marks omitted]), cert. denied,
531 U.S. 1051, 121 S. Ct. 655, 148 L. Ed. 2d 559 (2000);
Whalen v. United States, 826 F.2d 668, 670–71 (7th Cir.
1987) (‘‘We hold that [the statute], as originally enacted
in 1976, required that property be passed to a qualified
heir in order to qualify for special use valuation. As
such, the 1978 clarifying amendment to that section
did not change the law and was not retroactive in any
substantive sense.’’).
The judgment is affirmed with respect to the newspa-
per’s cross appeal; the judgment is reversed with
respect to the department’s appeal and the case is
remanded to the trial court with direction to render
judgment sustaining the department’s appeal.
In this opinion the other justices concurred.
1
The Commissioner of Public Health acts on behalf of the Department
of Public Health and references in this opinion to the department include
the commissioner.
2
The department also refused to produce Jane Smith’s medical records,
which were part of exhibit C to Gfeller’s report. Jane Smith and John Smith
intervened in the proceedings before the commission to contest disclosure
of these records. The commission concluded that these records were not
subject to disclosure, and the newspaper did not contest this determination
on appeal. We therefore limit our discussion to the commission’s decision
insofar as it addressed the data bank records.
3
The department appealed and the newspaper cross appealed to the
Appellate Court, and we transferred the appeals to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
4
The parties and the amicus have briefed at some length: (1) whether
federal law requires this court to defer to the federal agency’s construction
of the statutes and its own regulations, including its construction as reflected
in a letter from that federal agency to Connecticut’s Office of the Attorney
General while the present case was pending before the commission, a 2001
guidebook published by that federal agency, and subsequent amendments
to the regulations; and (2) whether this court’s construction of one of the
regulations in Director of Health Affairs Policy Planning v. Freedom of
Information Commission, supra, 293 Conn. 180 n.13, which is at odds with
the federal agency’s construction, should be reconsidered in the absence
of this court’s consideration of whether the federal agency had adopted an
interpretation that should be afforded deference.
Under federal law, as a general rule, courts are required to defer to an
agency’s reasonable construction of an ambiguous statute that the agency
is charged with implementing; see Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 843–44, 104 S. Ct. 2778, 81 L. Ed. 2d
694 (1984) (Chevron); as well as an agency’s reasonable construction of its
own ambiguous regulation. See Auer v. Robbins, 519 U.S. 452, 461–62, 117
S. Ct. 905, 137 L. Ed. 2d 79 (1997). There are, however, limitations to such
deference. See generally Christopher v. SmithKline Beecham Corp., U.S.
, 132 S. Ct. 2156, 2166–67, 183 L. Ed. 2d 153 (2012) (citing circumstances
in which deference is not afforded to agency interpretation). Under those
circumstances in which deference is not afforded, the agency’s interpretation
nonetheless is entitled to respect, but only to the extent that its interpretation
has the power to persuade. See Skidmore v. Swift & Co., 323 U.S. 134, 140,
65 S. Ct. 161, 89 L. Ed. 124 (1944). Whether Chevron/Auer deference or
Skidmore’s less deferential standard applies, however, is not always clear
in light of various factors that the United States Supreme Court has articu-
lated in an evolving line of cases. See generally 1 R. Pierce, Administrative
Law (5th Ed. 2010) § 3.5, p. 172 (‘‘Since 2000, the [United States Supreme]
Court has issued over a dozen opinions in which it has attempted to clarify
the scope of Chevron. Unfortunately, the only thing that emerges clearly
from these opinions is that the Justices differ significantly with respect to
their views on the scope of Chevron.’’).
In the present case, the applicable standard is called into question by the
fact that the critical sentence at issue in one of the regulations mirrors the
statutory language; see Gonzales v. Oregon, 546 U.S. 243, 257, 126 S. Ct.
904, 163 L. Ed. 2d 748 (2006) (declining to afford Auer deference when ‘‘the
underlying regulation does little more than restate the terms of the statute
itself’’); as well as the nature of the evidence on which the amicus relies—
including an opinion letter and a guidebook. Compare id. (declining to afford
deference when circumstance in which interpretation was expounded was
not one that Congress would have thought of as deserving deference), Coeur
Alaska, Inc. v. Southeast Alaska Conservation Council, 557 U.S. 261, 283–84,
129 S. Ct. 2458, 174 L. Ed. 2d 193 (2009) (no substantial deference to memo-
randum issued by agency), and Christensen v. Harris County, 529 U.S. 576,
587, 120 S. Ct. 1655, 146 L. Ed. 2d 621 (2000) (no deference to policy
statements, agency manuals, and enforcement guidelines), with Auer v.
Robbins, supra, 519 U.S. 462 (deference to interpretation articulated in legal
brief). Because our interpretation is consistent with the federal agency’s
own interpretation and relies on the federal agency’s pronouncements to
the extent that they are persuasive, we conclude that we need not determine
whether Chevron/Auer deference is required. Cf. Edelman v. Lynchburg
College, 535 U.S. 106, 114, 122 S. Ct. 1145, 152 L. Ed. 2d 188 (2002) (‘‘[T]here
is no need to resolve any question of deference here. We find the [agency’s]
rule not only a reasonable one, but the position we would adopt even if
there were no formal rule and we were interpreting the statute from scratch.
Because we so clearly agree with the [agency], there is no occasion to defer
and no point in asking what kind of deference, or how much.’’).
5
See Pub. L. No. 99-660, tit. IV, as amended by Pub. L. No. 100-177, § 402.
The Practitioner Data Bank was expanded by § 1921 of the Social Security
Act, as amended by § 5 (b) of the Medicare and Medicaid Patient and Program
Protection Act of 1987, Pub. L. No. 100-93, and as amended by the Omnibus
Budget Reconciliation Act of 1990, Pub. L. No. 101-508. See 78 Fed. Reg.
20,473. For convenience, we refer to these laws collectively as the 1986
federal act.
6
See 78 Fed. Reg. 20,473 (§ 1128E of the Social Security Act as added by
§ 221 (a) of the Health Insurance Portability and Accountability Act of 1996,
Pub. L. No. 104-191).
7
The principal issue in Director of Health Affairs Policy Planning v.
Freedom of Information Commission, supra, 293 Conn. 164, was whether
peer review records created by a state public agency were exempt from
disclosure under the act pursuant to General Statutes § 19a-17b (d). The
plaintiff agency offered no interpretation of the last sentence of 45 C.F.R.
§ 60.13 (a) in its brief to this court, and we did not have the benefit of briefing
from the federal government. Although ‘‘our adherence to the doctrine of
stare decisis serves the fundamental interest of our judicial system in stability
and consistency . . . [i]t is more important that the court should be right
upon later and more elaborate consideration of the cases than consistent
with previous declarations. . . . This principle is particularly appropriate
when we interpret federal law, as we do in this case, because in such a
case our state legislature is powerless to correct our errors.’’ (Citations
omitted; internal quotation marks omitted.) Ross v. Giardi, 237 Conn. 550,
570–71, 680 A.2d 113 (1996). Our review of the evidence marshaled by
the amicus, the recent amendments, and the history of the amendments
‘‘convinces us that we must modify our analysis in order to reflect accurately
the . . . intent embodied in [the federal scheme].’’ Id., 571. Accordingly,
we reject the conclusion of Director of Health Affairs Policy Planning to
the limited extent that it is inconsistent with the reasoning of this opinion.
8
The regulation confuses this context by inserting the intervening sen-
tence that provides: ‘‘Persons and entities which receive information from
the [Practitioner Data Bank] either directly or from another party must use
it solely with respect to the purpose for which it was provided.’’ (Emphasis
added.) 45 C.F.R. § 60.13 (a) (2009).
9
Drawing on case law from the United States Supreme Court and other
Circuit Courts of Appeals, the Eleventh Circuit Court of Appeals has
explained: ‘‘[C]ourts may rely upon a declaration by the enacting body that
its intent is to clarify the prior enactment. . . . Courts should examine such
declarations carefully, however, especially if the declarations are found in
the amendment’s legislative history rather than the text of the amendment
itself. . . . As a general rule, [a] mere statement in a conference report of
[subsequent] legislation as to what the [c]ommittee believes an earlier statute
meant is obviously less weighty than a statement in the amendment itself.
. . . Declarations in the subsequent legislative history nonetheless may be
relevant to this analysis, especially if the legislative history is consistent
with a reasonable interpretation of the prior enactment and its legislative
history.’’ (Citations omitted; internal quotation marks omitted.) Cortes v.
American Airlines, Inc., 177 F.3d 1272, 1284 (11th Cir. 1999), cert. denied,
528 U.S. 1136, 120 S. Ct. 980, 145 L. Ed. 2d 930 (2000).
10
‘‘Two commenters asked [the Health Resources and Services Adminis-
tration of the federal agency charged with promulgating the regulations
(agency)] to describe to what extent [Practitioner Data Bank] confidentiality
would be protected and whether state Freedom of Information Acts (FOIA)
would apply to the information contained in the [Practitioner Data Bank].
Another commenter asked [the agency] to revise language in this section
to strike the phrase ‘from its own files to create such reports’ regarding the
disclosure of information by a party under applicable state or Federal law.
This third commenter expressed concerns that this inserted language might
invite researchers and others to seek out the reporting entity to ask for
information from the entities’ own files and felt that the proposed change
was ‘superfluous’.
‘‘Response: Information reported to the [Practitioner Data Bank] is consid-
ered confidential, and access to and use of the information is prescribed
by the three statutes that govern the [Practitioner Data Bank]. As stated in
[45 C.F.R.] § 60.20 [2013], ‘Persons and entities receiving information from
the [Practitioner Data Bank], either directly or from another party, must
use it solely with respect to the purpose for which it was provided.’ Both
improper use and access to [Practitioner Data Bank] information may result
in a civil monetary penalty that is currently set at up to $11,000 for each
violation. The Privacy Act also protects the contents of Federal records on
individuals from disclosure without the individual’s consent, unless the
disclosure is for a routine use of the system of records as published annually
in the Federal Register. The published routine uses of [Practitioner Data
Bank] information, which are based on the laws and the regulations under
which the [Practitioner Data Bank] operates, do not allow disclosure to the
general public. Given these statutory restrictions on [Practitioner Data
Bank] information, [Practitioner Data Bank] information is not releasable
through FOIA.
‘‘The confidentiality provisions prohibit the release of the report submitted
to the Data Bank. These provisions, though, do not apply to the original
documents or records from which the reported information is obtained. The
[Practitioner Data Bank’s] confidentiality provisions do not impose any
new confidentiality requirements or restrictions on those documents or
records. Thus, the confidentiality provisions do not bar or restrict the release
of the underlying documents, or the information itself, by the entity taking
the adverse action or making the payment in settlement of a written medical
malpractice complaint or claim. For this reason we inserted clarifying
language in [45 C.F.R.] § 60.20 [2013], which already existed in the [Health-
care Data Bank] regulations, stating that an entity is free to release informa-
tion ‘from its own files’ provided that such disclosure is otherwise permitted
by state and Federal law.
‘‘This provision allows the disclosure of information used to create [a
Practitioner Data Bank] report, consistent with other legal requirements,
however it does not permit the release of the [Practitioner Data Bank] report
itself. So, for instance, if a state FOIA law requires the release of records,
while it may require the release of the records underlying the report, it
would not permit the release of the [Practitioner Data Bank] report itself.’’
(Emphasis added.) 78 Fed. Reg. 20,473, 20,483.