FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

                                                                                                                       

  

            The above-captioned matter was heard as a contested case on May 5, 2005, at which time the complainants and the respondents appeared and presented testimony, exhibits and argument on the complaint.

 

After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.  The respondents are public agencies within the meaning of §1-200(1)(A), G.S.

 

2.  It is found that, orally during February 2004, and again by letter dated September 3, 2004, the complainants made a request to the respondents for records indicating the relationship between the state of residence and the age of patients having legally induced abortions in Connecticut during the calendar years 2002 and 2003 (the “requested records”). 

 

3.  By letter dated September 13, 2004, the respondents stated that: “the department collects these fields for research purposes”, but declined to provide the requested records because “we are precluded by state statute (Section 19a-25) from releasing these data.” 

 

4.  By letter dated November 5, 2004, the complainants stated their disagreement with the conclusions of the respondents’ September 13, 2004 letter, citing Babcock v. Bridgeport Hospital, 251 Conn. 790 (1999) (hereinafter “Babcock”), asked for evidence relevant to the legal standard set forth in Babcock, stated their belief that the requested records are not exempt from mandatory disclosure, and thanked the respondents “for attention to this matter and a timely response”.

 

5.  By letter dated December 7, 2004 and filed with the Freedom of Information Commission (“Commission” or sometimes “FOIC”) on December 9, 2004, the complainants appealed to the Commission, alleging that the respondents’ failure to provide the requested records and the information sought by the November 5, 2004 letter violated the Freedom of Information Act (“FOIA”).

 

6.  At the hearing, the complainants additionally alleged that the respondents failed to comply “in a timely manner”. The respondents contended that the complaint was not timely filed within the thirty-day requirement of §1-206(b)(1), G.S., in that respondents declined to provide the requested records in their letter dated September 13, 2004. Respondents also reaffirmed the contention of their September 13, 2004 letter that §19a-25, G.S., exempts the requested records from mandatory disclosure.  

 

7.  It is found that the complainants’ November 5, 2004 letter constituted a renewal of their request for records. Therefore, it is concluded that the Commission has jurisdiction over the December 9, 2004 complaint, which was filed within thirty days of the denial of an FOIA right, as required by §1-206(b)(1), G.S.

 

8.  Section 1-200(5), G.S., states:

 

“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method. (emphasis added) 

 

9.  Section 1-210(a), G.S., states in relevant part:

 

            Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. …. (emphasis added) 

 

10.  Section 1-211(a), G.S., states in relevant part:

 

Any public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to the Freedom of Information Act, a copy of any nonexempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such copy or have such copy made.  (emphasis added) 

 

11.  Section 1-212(a), G.S., states in relevant part:

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record…. (emphasis added)  

 

12.  Section 19a-25, G.S., states in relevant part:

 

All information, records of interviews, written reports, statements, notes, memoranda or other data, including personal data as defined in subdivision (9) of section 4-190, procured by the Department of Public Health or by staff committees of facilities accredited by the Department of Public Health in connection with studies of morbidity and mortality conducted by the Department of Public Health or such staff committees, or carried on by said department or such staff committees jointly with other persons, agencies or organizations, or procured by the directors of health of towns, cities or boroughs or the Department of Public Health pursuant to section 19a-215, or procured by such other persons, agencies or organizations, for the purpose of reducing the morbidity or mortality from any cause or condition, shall be confidential and shall be used solely for the purposes of medical or scientific research and, for information obtained pursuant to section 19a-215, disease prevention and control by the local director of health and the Department of Public Health…. (emphasis added) 

 

13.  It is found that, pursuant to the Regulations of Connecticut State Agencies      §19-13-D54(b), the respondents collect from physicians on form MCH 155 certain information, not including the name of the patient, concerning each legally induced abortion in Connecticut. Based upon these forms, the respondents prepare a “Statistical Summary of Legal Induced Abortions”, which is publicly disclosed. This summary includes six categories of information: the total number of abortions, the type of facility where the abortion is performed, the patient’s state of residence, the patient’s age, the physician’s estimate of the number of weeks of gestation of the fetus, and the method of abortion.

 

14.  It is also found that the respondents’ statistical studies do not indicate the relationship between the state of residence and the age of the patient, with a number for each relevant category. The complainants stated that they were interested in this relationship in order to determine the number of patients age eighteen or under from Massachusetts and Rhode Island who had abortions in Connecticut in 2002 and 2003. Complainants, in effect, request the same categories of information already disclosed in respondents’ statistical studies, but seek additionally the correlations between age and state of residence, with a number for each correlation. The respondents maintain that these additional correlations are exempt from mandatory disclosure.

 

15.  It is further found that the information set forth at paragraph 13, above, concerning the total number of abortions, the type of facility where the abortion is performed, the patient’s state of residence, the patient’s age, the physician’s estimate of the number of weeks of gestation of the fetus, and the method of abortion were not generated primarily for the purpose of the study of morbidity and mortality. Rather, this information was procured in order to compile statistical studies of the sort at issue herein, as authorized by both Regulations of Connecticut State Agencies cited at paragraph 18, below.          

 

16.  However, it is also found that during the adjudication of this contested case the respondents provided the complainants with the information requested in complainants’ letter dated November 5, 2004, particularly as set forth at paragraph 18, below. As a result, the only records that remain at issue are the requested records, defined at paragraph 2, above, and described in more detail at paragraph 14, above. 

 

17.  It is also found that the respondents maintain only one database concerning abortion information, and that they have not consulted their programmer about the programming or queries that would be necessary to generate the statistical correlations sought by the complainants. However, it is finally found, based upon the testimony at the hearing, that the respondents could generate the requested records without great difficulty.

 

18.  The respondents rely on a body of law mostly predating Babcock in support of their position that the requested records are exempt from mandatory disclosure. This law is primarily Director, Health Services v. FOIC, CV 81-1387995, March 19, 1981 (hereinafter “Director, Health Services”), but also includes Regulations of Connecticut State Agencies §§19a-25-1 to 4 (disclosure of health data), 19-13-D54(b) (abortions), an Opinion of the Attorney General, dated August 3, 1976, and two FOIC decisions rendered in the wake of Director, Health Services (FIC## 83-05 and 1997-92). Finally, respondents cite non-abortion FOIC decisions addressing §19a-25, G.S., namely FIC #2000-581 concerning West Nile virus, FIC #1999-298 concerning e. coli, and FIC #2003-197 concerning SARS.        

 

19.   Given the case law predating Babcock, this contested case resolves itself essentially into an adjudication of the impact of Babcock on the law of disclosure of certain information concerning legally induced abortions performed in Connecticut. 

 

20.  It is first of all concluded that Director, Health Services is distinguishable from, though related, to the present case. It concerned the disclosure of the actual MCH 155 forms, discussed at paragraph 13, above, in addition to statistical abstracts probably similar to those at issue herein. The court specifically held that disclosure of the MCH 155 forms would “with very little effort…easily” lead to disclosure of the patient who had an abortion, id. at 7, causing “an invasion of privacy”. Id. at 6. As found at paragraph 14, above, the present case merely concerns reworking statistical studies that are already disclosed, in order to disclose very narrow, additional statistical correlations.

 

21.  Babcock is a sixty-one page decision written by Justice Katz on behalf of a unanimous panel of the Connecticut Supreme Court, holding that the §19a-25, G.S., privilege for documents procured in connection with studies of morbidity and mortality did not apply in a medical malpractice case to records of a hospital’s peer review committee, where the records addressed an alleged failure to prevent the spread of infection and a resulting epidemic.

 

22.  In making this holding, Babcock set forth the relevant standard for §19a-25, G.S., determinations:

 

In light of the statute's language and legislative history, we conclude that the privilege afforded by §19a-25 is limited to the designated materials of a hospital staff committee that are generated primarily for the purpose of the study of morbidity and mortality, undertaken specifically for the purpose of reducing the incidence of patient deaths. (emphasis added)

 

Id. at 841.

 

Thus, it is concluded that Babcock stands for the proposition that the §19a-25 privilege pertains only to records whose primary purpose is the study of morbidity and mortality, undertaken specifically to reduce deaths. 

 

23. Moreover, it is concluded that both regulations cited by the respondents include exceptions to their basic rule of non-disclosure, in order to allow for the “disseminat[ion of] aggregate health data…reports”, Regulations of Connecticut State Agencies §19a-25-2(a), and “for statistical purposes” concerning abortions, Regulations of Connecticut State Agencies §19-13-D54(b).

 

24. It is also concluded that the requested records are “public records’ within the meaning of §§1-200(5), 1-210(a), and 1-211(a), G.S.  

 

25.  With reference to the §19a-25, G.S., standard of “information…procured… for the purpose of reducing … morbidity or mortality”, it is concluded that all information procured by the respondents, indeed, all their records, relate in some manner to reducing “morbidity”, which means disease, and “mortality”, which, of course, means death. Webster’s Third New International Dictionary 1469, 1472 (1993). In this regard, §19a-25, G.S., is similar to §1-210(b)(3), G.S., the FOIA provision concerning “records of law enforcement agencies …compiled in connection with the detection or investigation of crime”. Notwithstanding the fact that all records of law enforcement agencies relate in some manner to the detection or investigation of crime, courts have held that some of their records were not compiled in this connection. Chief of Police, Town of Windham v. FOIC, CV 99 0497252S, January 12, 2001.  

 

26.  Accordingly, it is concluded that the specific relationships or correlations that would be shown by the requested records, as defined at paragraph 2, above, and further described at paragraph 14, above, would not be “generated primarily for the purpose of the study of morbidity and mortality, undertaken specifically for the purpose of reducing the incidence of patient deaths” (emphasis added). Babcock at 841.

 

27.  It is therefore concluded, pursuant to the Babcock standard, that the requested records are not exempt from mandatory disclosure by the §19a-25, G.S., privilege for documents procured in connection with studies of morbidity and mortality.

 

28.  Based upon the findings at paragraph 17, above, it is concluded that the respondents could “reasonably” make a copy of the requested records from its abortion database pursuant to the requirements of §1-211(a), G.S.

 

29.  Therefore, it is finally concluded that the requested records are subject to mandatory disclosure, and that the respondents violated §§1-210(a) and 1-211(a), G.S., when they declined to provide them. However, in light of the colorable legal issue presented by this contested case, there was no promptness violation of §1-212(a), G.S.

 

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

 

1.  The respondents shall forthwith provide the complainants with the requested records.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 10, 2005.

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

 

David Reynolds and the

Connecticut Catholic Conference

134 Farmington Avenue

Hartford, CT 06105

 

Commissioner, State of Connecticut,

Department of Public Health; and

Bureau Chief, State of Connecticut,

Department of Public Health,

Bureau of Community Health  

c/o Henry A. Salton, Esq.

Assistant Attorney General

PO Box 120

55 Elm Street

Hartford, CT 06141-0120

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-552FD/paj/8/17/2005