FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

            

The above-captioned matter was heard as a contested case on September 21 and October 19, 2005, at which times the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  This matter was consolidated for hearing with docket #FIC 2005-025, Kari Hartwig v. Commissioner, State of Connecticut, Department of Social Services, which was initially heard alone on May 24, 2005.  Following the May 24, 2005 hearing in  Hartwig v. Commissioner, above, Anthem Health Plans, Inc., Community Health Network of Connecticut, Inc., Health Net of Connecticut, Inc., and Well Care of Connecticut, Inc., were each granted party status in both cases, pursuant to Regulations of Connecticut State Agencies §1-21j-30(b), and the hearing in Hartwig v. Commissioner, above, was reopened on September 21 and October 19, 2005, for the purpose of permitting these additional parties to cross-examine witnesses who had previously testified, and to offer additional evidence and argument.  A final decision in Hartwig v. Commissioner was issued on December 21, 2005.

 

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

 

 

1.  The respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.  By letter of complaint filed June 16, 2005, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying their request for copies of records pertaining to the rejections by four Medicaid Managed Care Organization (“MCO”) contractors of drugs at the pharmacy for low-income Medicaid recipients owing to their use of drug formularies (or preferred drug lists), the availability of temporary supplies of drugs when these rejections occur, and

related data, all in connection with the State’s Medicaid and SAGA (State Administered General Assistance) programs.

 

3.      It is found that the complainants, renewing an earlier November 22, 2004 request, made a request dated June 3, 2005 to the respondent for copies of documents related to drug benefits under the Medicaid, SAGA and Connecticut Department of Social Services Pharmaceutical Assistance Contract to the Elderly and Disabled (“ConnPACE”).  The complainants specifically requested:

 

1.  A complete copy of all documents referring or relating to the following statistics pertaining to any preferred drug lists or drug formularies operated by any Medicaid managed care organizations under contract with the Department of Social Services (“DSS”), for each month from January 1, 2004 to the date of your response to this inquiry, and for each of the Medicaid MCO’s which operate a preferred drug list or drug formulary:

 

a.       the number of recipients who were electronically rejected for a supply of a prescribed drug which was not on the list because prior authorization had not been obtained prior to the individual’s arrival at the drug store with a prescription for such a non-listed drug;

 

b.      the number of these recipients who were able to obtain a temporary supply of the prescribed non-listed [drug] on the day of the rejection, based on certification by the prescriber of the drug as being needed for an urgent or emergent medical condition;

 

c.       the number of the recipients in (a) who, in the month following such rejection, did not receive the rejected drug or any other drug in the same therapeutic class as the rejected drug, paid for by the MCO under its plan; and

 

d.      the period of time for which prior authorization for non-listed drugs, once granted by the MCO or its pharmacy benefit manager, remained in effect, and, if not indefinite, the number of individuals each month for whom a grant of prior authorization had expired.

 

4.  It is found that the complainants also requested a waiver of all fees for their request, pursuant to §1-212(d), G.S., asserting that the request was submitted on behalf of an indigent Medicaid client as well as clients generally who have very low incomes and are on Medicaid, and that the disclosure of the requested information concerning drug access problems for large numbers of low-income residents under a state-funded program was in the public interest.

 

5.  It is found that the respondent denied the complainants’ request by letter dated June 10, 2005, on the grounds that the respondent did not have the requested documents in its possession, that the managed care organizations (“MCOs”) in possession of the documents did not perform a government function as defined in §1-200(11), G.S., and that, accordingly, the respondent was not entitled to receive a copy of them by law or contract under §1-218, G.S.

 

6.  It is found that, subsequent to the filing of the complaint in this matter, and subsequent to the first hearing, the respondent requested certain records from the managed care organizations in connection with the complainant’s request, the MCOs provided certain records to the respondent, and the respondent in turn provided certain records that it received from the MCOs to the complainant.

 

7. The respondent now contends that the complaint is moot because the requested records have been provided to the complainant.

 

8.  However, Health Net of Connecticut, Well Care of Connecticut, and Community Health Network stipulated at the October 19, 2005 hearing that they have additional records in their possession that are generally responsive to the complainant’s request, although they contend that the request was too general to be responded to without clarification.

 

9.  It is found that complainants’ request may reasonably be construed to request more records than were provided by the respondent.  Additionally, it is found that the complainant’s request may reasonably be construed to request more records than the respondent sought from the MCOs.  While clarification of the request may have reduced its scope, it is found that the respondent never sought any clarification from the complainants.

 

10.  The respondent’s motion to dismiss is therefore denied.

 

11.  The respondent also moved on September 21, 2005 for an order in limine that evidence related to the governmental function issue was no longer relevant, based upon the respondent’s assertion that records responsive to the complainants’ request had been produced by the MCOs and were in the respondent’s possession.

 

12. The respondent’s motion for an order in limine was based on the same premise as its motion to dismiss: that the respondent was in possession of the only records that continued to be responsive to the complainants’ request.  See, however, paragraphs 8 and 9 of the findings, above.

 

13.  The respondent’s motion in limine was therefore denied at the commencement of the September 21, 2005 hearing.

 

14.  It is concluded that the MCOs perform a governmental function pursuant to §§1-200(11) and 1-218, G.S.  See docket #FIC 2005-025, Kari Hartwig v. Commissioner, State of Connecticut, Department of Social Services.

 

15. Having concluded that the MCOs perform a governmental function within the meaning of §§1-200(11) and 1-218, G.S., the question remains as to the respondent’s compliance with §§1-210(a), 1-218, and 1-200(5), G.S.

 

16. Section 1-200(5), G.S., provides:

 

“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.

 

17.  Section 1-210(a), G.S., provides 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.  … Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located or of the Secretary of the State, as the case may be. 

 

18.  The respondent, Health Net of Connecticut, and Well Care of Connecticut, all contend that the records sought by the complainants are not public records within the meaning of §§1-200(5) and 1-218, G.S., because the contract between DSS and the MCOs does not contain a provision entitling DSS to copies of all records related to the performance of the governmental function.

 

19.  It is concluded, however, that §1-218, G.S., is by its express language mandatory for all contracts in excess of $2.5 million for the performance of a governmental function, and that the Commission is not bound by the parties’ interpretation of what constitutes a governmental function pursuant to §1-200(11), G.S.  The Commission additionally notes that DSS may not contract away its express statutory obligations under the FOI Act.  See, e.g.,  Lieberman v. State Board of Labor Relations, 215 Conn. 253 (1990); see also docket #FIC 2005-025, Kari Hartwig v. Commissioner, State of Connecticut, Department of Social Services. 

 

20.  It is concluded that the respondent violated §1-218, G.S., by failing to include the required provision in its contracts with the MCOs.  See docket #FIC 2005-025, Kari Hartwig v. Commissioner, State of Connecticut, Department of Social Services.

 

21.  It is also concluded that, notwithstanding the respondent’s omission of the required contractual language,  the requested records are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

22.  The respondent maintains that the request was unclear, and that DSS did its best to clarify it.

 

23.  It is found that the complainants’ request may reasonably be described as broad, but that it is also clear on its face.

 

24.  It is also found that the respondent made no attempt to contact the complainants for clarification, even though the MCOs indicated that they required it, and even though DSS has done so with other requesters.

 

25.  It is found that the respondent obtained some records from the MCOs that are responsive to the complainants’ request, and provided them to the complainant shortly before the final hearing in this matter.

 

26.  However, it is also found that the MCOs are in possession of many other documents responsive to the complainants’ request. 

 

27.  It is concluded that the respondent violated §§1-210 and 1-218, G.S., by failing to obtain the requested records from the MCOs and provide them to the complainants.

 

28.  The Commission notes that the parties agreed that any claims of exemption for additional records were not to be decided in this case, but reserved to proceedings in a future case, should one arise.

 

29.  As to the question of remedies, §1-206(b)(2), G.S., provides in relevant part:

 

In any appeal to the Freedom of Information Commission under subdivision (1) of this subsection or subsection (c) of this section, the commission may confirm the action of the agency or order the agency to provide relief that the commission, in its discretion, believes appropriate to rectify the denial of any right conferred by the Freedom of Information Act. 

 

30.  The Commission believes that the relief appropriate to rectify the denial of the complainants’ rights in this case consists of three parts: (1) requiring the respondent to obtain from the MCOs, and provide to the complainants, any records responsive to their request; (2) requiring the respondent to provide the records to the complainants at no cost, in consideration of the extensive delay in providing records pertinent to an ongoing public policy debate; and (3) requiring the respondent to amend its contract with each MCO to include the language contained in §1-218, 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 obtain from the MCOs and provide to the complainants, at no cost to the complainants, copies of any records responsive to the complainant’s request, except that if claims of exemption are asserted, such claims will be adjudicated in a separate docketed proceeding. The Commission highly recommends that the respondent, if it seeks clarification or narrowing of the complainants’ request, contact the complainants directly.

 

2.  The respondent shall forthwith amend its contract with each MCO to include the language mandated by §1-218, G.S.

 

3.  Henceforth the respondent shall strictly comply with the requirements contained in §§1-200(5), 1-200(11), 1-210(a), and 1-218, G.S.

 

 

Approved by Order of the Freedom of Information Commission at its special meeting of April 12, 2006.

 

________________________________

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:

 

Barbara Hunt and

Marisol Pratts

c/o Sheldon V. Toubman, Esq.

New Haven Legal Assistance Association, Inc.

426 State Street

New Haven, CT 06510-2018

  

 

Commissioner, State of Connecticut,

Department of Social Services

c/o Hugh Barber, Esq. and

Patrick Kwanashie, Esq.

Assistant Attorneys General

PO Box 120

55 Elm Street

Hartford, CT 06141-0120

 

 

Community Health Network of

Connecticut, Inc.

c/o Sheila Huddleston, Esq. and

Vaughan Finn, Esq.

Shipman & Goodwin

One Constitution Plaza

Hartford, CT 06103-1919

 

 

Health Net of Connecticut, Inc. and

WellCare of Connecticut, Inc./FirstChoice Health

Plans of Connecticut, Inc.

c/o Linda L. Morkan, Esq. and

Bradford S. Babbitt, Esq.

Robinson & Cole LLP

280 Trumbull Street

Hartford, CT 06103-3597

 

 

 

 

Anthem Health Plans, Inc. d/b/a/

Anthem Blue Cross & Blue Shield

c/o Steven M. Barry, Esq.

Donahue, Durham & Noonan, PC

Concept Park, Suite 306

741 Boston Post Road

Guilford, CT 06492

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-284FD/paj/4/18/2006