FREEDOM OF
INFORMATION COMMISSION
OF THE STATE OF
CONNECTICUT
In the Matter of
a Complaint by FINAL DECISION
Donald Pet,
Complainant
against Docket #FIC 86-183
State of
Connecticut Department of Health Services,
Respondent October 22, 1986
The above captioned matter was heard
as a contested case on July 30, 1986, at which time the complainant and
respondent appeared, stipulated to certain facts and presented testimony,
exhibits and argument on the complaint.
The hearing was continued until August 28, 1986, at which time the
complainant and the respondent again appeared and presented testimony and
argument on the complaint.
After consideration of the entire
record the following facts are found:
1.
The respondent is a public agency within the meaning of 1-18a(a),
G.S.
2.
By letter dated June 9, 1986 the complainant made a request of the
respondent for any and all records in its files relating to its investigation
of the charges brought against the the complainant by the respondent.
3.
By letter dated June 13, 1986 the respondent replied stating that certain portions of the file
would be open for inspection, however, the file also contained preliminary notes
and drafts, as well as psychiatric reports, evaluations, medical records and
correspondence concerning treatment which are exempt from disclosure pursuant
to 1-19(b)(1), 1-19(b)(2) and 52-146(e), G.S.
4.
By letter dated June 18, 1986 the complainat again requested access to
the complete file, alleging that certain documents contained therein were not
exempt from disclosure.
Docket #FIC
86-183
Page 2
5.
By letter dated June 20, 1986 the respondent again denied the
complainant access to the entire file, restating the exemptions enumerated in
its letter of June 13, 1986.
6.
From a denial of access to the entire file, the complainant appealed to
the Commission by complaint filed on June 23, 1986.
7.
It is found that pursuant to 19a-9 and 19a-4, G.S., the
respondent has brought a proceeding to remove the license of the complainant, a
psychiatrist.
8.
It is further found that these charges stem from complaints filed by
three women alleging improper conduct by the complainant during the course of
treatment.
9.
The complainant alleges that each of the three women waived the
psychiatrist/patient privilege because each has placed her mental state at
issue by filing a complaint with the Department of Medical Quality Assurance
(hereinafter "DMQA"), alleging improper conduct by the complainant
during the course of treatment.
10.
It is found, that 52-146d to 52-146j, inclusive, provides
specific requirements for patient waiver.
11.
Pursuant to 52-146e(b), G.S., the three women in question have
granted a limited waiver of the privilege.
12.
It is concluded that the psychiatric files of the three women in
question are not subject to mandatory disclosure under 1-19(a), G.S.,
because they filed a complaint against the complainant with DMQA.
13.
At the hearing before the Commission, the respondent provided the
complainant with a list of records in its possession concerning the
investigation in question.
14.
It is found that the following records were not disclosed to the
complainant:
a. Transcripts
of the proceedings before Hartford County Medical Association (hereinafter
"HCMA");
b. Exhibits
in proceedings before HCMA (articles, excerpts from psychiatric tests excerpts
from letters written by patients to Dr. Pet, Pet's summary of patient's
psychiatric history and treatment by him, Pet's clinical notes and excerpts
thereof and letters of consultants on behalf of Dr. Pet);
Docket #FIC
86-183
Page 3
c. HCMA
correspondence between HCMA and its attorney and HCMA and Dr. Pet;
d. Attorneys
proposed findings of fact to HCMA Board of Directors and summations of the
case;
e. Dr.
Pet's summary of psychiatric treatment provided to insurance carrier of a
patient;
f. Dr.
Pet's psychiatric records of 2 patients;
g. Letters
to Dr. Pet from three patients relating to therapy;
h. Psychiatric
records of a patient - letter from Dr. Pet to subsequent treating psychiatrist
discussing diagnosis or treatment;
i. Psychiatric
records of a patient by a treating psychiatrist;
j. Release
of information forms signed by a patient to treating psychiatrists and
psychologist;
k. Medical
records - biofeedback records of two patients - biofeedback conducted by
therapist under clinical supervision of Dr. Pet;
l. Medical
records and correspondnece by Dr. Pet to insurance carrier regarding
biofeedback treatment of a patient and patient's treatment by a social worker
with Dr. Pet's supervision;
m. Original
petition of a patient to the DMQA discussing the treatment by Dr. Pet;
n. Psychological
reports regrading a patient by a treating psychologist;
o. Material
submitted by Dr. Pet to the Department of Health Services in his defense;
p. Patient's
letters to Dr. Pet which were retained by him;
q. Psychiatric
evaluation of a patient by a psychiatrist;
r. Depositions
taken in civil lawsuits;
Docket #FIC
86-183
Page 4
s. Diaries
and journals kept by patients discussing therapy and relationships with Dr.
Pet;
t. Attorneys
notes re:
(1) compliance conference held under
4-182(c), G.S.
(2) Connecticut Medical Examining Board
physician of the
month consultation;
(3) interviews with potential witnesses;
(4) telephone conversations with various
individuals
connected with the case;
(5) draft questions posed to potential witnesses
in
preparation for
testimony at hearing;
(6) notes regarding Dr. Pet's involvement in
various
corporations;
(7) potential witnesses own draft notes for her
sworn
statement;
(8) notes on petitioners phone numbers and
addresses; and
(9) potential witnesses (copy) notes - timetable
of
events;
u. Attorney
memos re:
(1) request to Stan Peck, Division Director,
DMQA for
subpoena of witnesses;
(2) request to Stan Peck from David Pavis,
Section
Chief, for Department
authorization to pay
consultants/expert
witnesses; and
(3) memo to Christine Spak, former Section Chief
regarding a referral to
the Department of Consumer
Protection for possible
violation by Dr. Pet of
controlled substance
statutes;
v. Investigator's
Preliminary Investigation Report on Dr. Pet's case;
w. Correspondence
to and from treating therapists and/or their attorneys;
Docket #FIC
86-183
Page 5
x. Department
of Health Services correspondence to and from potential witnesses wherein
treating therapist are named, or current mental status of the patient is
discussed;
y. Correspondence
to consultants for DMQA (some contain draft questions for direct examination);
z. Curriculum
vitae for consultants to DMQA;
aa. Notes
and addresses for potential witnesses; and
bb. Personal
service contract for two consultants hired by DMQA.
15.
With respect to paragraphs 14a through 14h, and 14n through 14p and 14r,
above, it is found that the complainant has copies of those documents.
16.
The respondent claims that the documents identified in paragraphs 14i,
14k, 14l, 14q, 14s, 14w and 14x are exempt from disclosure under
52-146(d)(2) and 52-146e, G.S.
17.
Section 52-146(d)(2), G.S. provides in pertinent part:
Communication 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. . .
18.
Section 52-146e also provides in relevant part:
(a) all communications
and records as defined in section
52-146(d) shall be
confidential. . . 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 authorized representative.
Docket #FIC
86-183 Page 6
19
It is found that the records referred to at paragraphs 14i, 14k, 14q,
14w and 14x, are written communications relating to the diagnosis or treatment
of a patient's mental condition within the meaning of 52-146(d)(2), G.S..
20.
It is therefore concluded that the documents identified in paragraph 19,
above, are exempt from mandatory disclosure under 1-19a, G.S., by
operation of the non-disclosure provision of 52-146e, G.S., set forth in
paragraph 18, above.
21.
With respect to paragraph 14l, above, it is found that under
52-146f(3), G.S., the following information is discloseable, ". . .
the name, address and fees for psychiatric services to a patient may be
disclosed to individuals or agencies involved in the collection of fees for
such services. . ."
22.
It is therefore concluded that by virtue of the limited disclosure
provision of 52-146f(3), G.S., set forth in paragraph 22, above, the
medical records and correspondence sent by the complainant to the patient's
insurance carrier is not subject to mandatory disclosure under 1-19(a),
G.S.
23.
With respect to paragraph 14s, above, it is found that the respondent
failed to prove that the requested information constitutes a "written
communication relating to diagnosis or treatment," as defined by
52-146(d)(2), G.S.
24.
The respondent claims that the records identified in paragraphs 14j, 14m
and 14s and 14u(3), above, are exempt from disclosure under 1-19(b)(2),
G.S.
25.
With respect to paragraph 14j, above, it is found that the documents in
question are release forms signed by the three women identified in paragraph 8,
above.
26.
It is further found that the release forms give the DMQA the authority
to obtain records of treatment or diagnosis from treating psychiatrist and
psychologist.
Docket #FIC
86-186
Page 7
27.
It is found that those sections of the release form that refer to the
patient's mental condition and refers to any psychiatrists and psychologist in
connection with treatment or diagnosis constitutes a medical file, the
disclosure of which constitutes an invasion of privacy as defined by
1-19(b)(2), G.S.
28.
It is found that the remaining portions of the waiver are not exempt
from disclosure pursuant to 1-19(b)(2), G.S.
29.
With respect to paragraph 14m, above, it is found that the respondent
has failed to prove that the petitions filed by the three women constitute a
"similar file" within the meaning of 1-19(b)(2), G.S.
30.
With respect to paragraph 14s, above, it is found that the complainant
has a copy of the journal kept by one Sandra Wolf. However, the complainant does not have or know if the other two
women kept a diary or journal discussing therapy and relationships with the
complainant.
31.
It is concluded that any diaries and/or journals in the possession of
the respondent which relate to the treatment of the patient's mental condition
would constitute a "similar file" the disclosure of which would
constitute an invasion of personal privacy as defined by 1-19(b)(2), G.S.
32.
It is therefore concluded that the portion of the diaries referring to
the patient's treatment is exempt from mandatory disclosure under 1-19(a),
G.S., by operation of the non-disclosure provision of 1-19(b)(2), G.S.
33.
With respect to paragraph 14u(3), above, it is found that the respondent
failed to prove that the referrals sent to the Department of Consumer
Protection constitute "similar files" within the meaning of
1-19(b)(2), G.S.
34.
The respondent claims that the records identified in paragraphs 14t(1)
through 14t(9), 14u(1) through 14u(3), 14v, 14y, 14z, 14aa and 14bb, above, are
exempt from disclosure under 1-19(b)(4), G.S.
35.
It is found that draft questions and attorney's notes are records
pertaining to strategy with respect to the attorney's claim against the
complainant as defined by 1-19(b)(4), G.S.
Docket #FIC
86-183
Page 8
36.
It is further found that the names of potential witnesses being
subpoenaed and the name of the consultants and expert witnesses being retained
by the respondent constitutes strategy with respect to a pending claim.
37.
It is therefore concluded that the records identified in paragraphs
14t(1) through 14t(9), 14u(1) through 14u(2), 14v, 14y and 14aa are exempt from
mandatory disclosure under 1-19(a), G.S., by operation of the
non-disclosure provision of 1-19(b)(4), G.S.
38.
With respect to 14u(3), above, it is found that the respondent failed to
prove that the referrals sent to the Department of Consumer Protection
constitute records pertaining to strategy as defined by 1-19(b)(4),G.S.
39.
With respect to paragraphs 14z and 14bb, above, it is found that the
portion of the curriculum vitae and personal services contracts which identify
or name the two consultants constitutes records pertaining to "strategy"
with respect to a pending claim within the meaning of 1-19(b)(4), G.S.
The following order by the
Commission is hereby recommended on the basis of the record concerning the
above-captioned complaint:
1.
The respondent shall forthwith provide the complainant with a copy of
the records more fully described in paragraphs 14j, 14z and 14bb, of the
findings above.
2.
In complying with paragraph 1 of this order, the respondent may mask or
otherwise delete information which is exempt from disclosure under
1-19(b)(2) and 1-19(b)(4), G.S.
3.
The respondent shall also provide the complainant with a copy of the
records more fully described in paragraphs 14m and 14u(3), of the findings above.
Approved by order of the Freedom of
Information Commission at its regular meeting of October 22, 1986.
ÿ
Karen J.
Haggett
Acting Clerk of the Commission