FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on September 7, 2011, at which time the complainant and the respondents appeared, stipulated to certain facts 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), G.S.

 

2.  It is found that, by letter dated May 3, 2010, the complainant sent a request to the respondents for records of an investigation concerning a physician and the physician’s staff from the William W. Backus Hospital (the “hospital”).  It is further found that, by administrative petition dated May 3, 2010, the complainant filed a complaint with the respondent agency and with the hospital about this particular physician, his staff, and the hospital itself, concerning the treatment the complainant received while he was at the hospital.

 

3.  It is found that, by letter dated May 27, 2010, the respondents acknowledged the complainant’s correspondence, indicating that his complaint with regard to the multiple licensed practitioners at the hospital had been received and referred to their Facility Licensing and Investigations Section. 

 

4.  It is further found that, by letter dated June 8, 2010, the respondents again corresponded with the complainant, indicating that, after having reviewed his complaint, a comprehensive review of the care and services (the “survey”) he received was conducted.  It is further found that the June 8, 2010 letter informed the complainant that an investigation would not be initiated at this time. 

 

5.  It is found that, by letters dated August 27, 2010 and September 30, 2010, the respondents again corresponded with the complainant.  It is found that this correspondence informed the complainant that his May 3, 2010 complaint with regard to the multiple licensed practitioners had been received by the respondent agency’s Practitioner Licensing and Investigations Section and that a health program associate and a registered nurse had been assigned to investigate his concerns.  It is found that an investigation concerning the physician and his staff as well an investigation concerning the hospital was conducted.

 

6.  It is found that, by letter dated June 1, 2011, the respondents informed the complainant that based on the investigations referred to in paragraph 5, above, the respondent department had determined that no violation of the statutes governing physician practice had been identified, and that therefore the matter would be closed.

 

7.  It is found that, by letter June 2, 2011, the respondents denied the complainant’s May 3, 2010 request for the records referred to in paragraph 2, above, which request concerned the investigation that had occurred in connection with his complaint.

 

8.  It is found that, by letter dated January 18, 2011, the complainant requested that the respondents provide him with a complete copy of the records of the investigation generated as result of his complaints, referred to in paragraph 2, above. 

 

9.  By letter of complaint dated February 12, 2011 and filed February 17, 2011, the complainant appealed to the Commission, alleging that the respondents violated the FOI Act by failing to provide him with copies of the records of their investigation of his complaint. 

 

10. 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.

 

11. Section 1-210(a), G.S., provides in relevant part that:

 

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 . . .  (3) receive a copy of such records in accordance with section 1-212.

 

12. Section 1-212(a)(1), G.S., provides in relevant part that “any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

13. It is found that the respondents maintain the documents described in paragraphs 2 and 8, above, and it is therefore concluded that such records are “public records” within the meaning of §§1-200(5), 1-210(a), and 1-212(a) G.S., and that copies of such records must be provided in accordance with §§1-210(a), and 1-212(a), G.S., unless the records are exempt from disclosure. 

 

14. The respondents contend that any records that might have been created in connection with their investigations of the complainant’s administrative petition referred to in paragraph 2, above, are confidential.

 

15.  Section 20-13e, G.S., provides in relevant part as follows:

(a) The department [of Public Health] shall investigate each petition filed pursuant to section 20-13d, . . .  to determine if probable cause exists to issue a statement of charges and to institute proceedings against the physician . . . . Such investigation shall be concluded not later than eighteen months from the date the petition is filed with the department and, unless otherwise specified by this subsection, the record of such investigation shall be deemed a public record, in accordance with section 1-210, at the conclusion of such eighteen-month period. Any such investigation shall be confidential and no person shall disclose his knowledge of such investigation to a third party unless the physician requests that such investigation and disclosure be open.  If the department determines that probable cause exists to issue a statement of charges, the entire record of such proceeding shall be public unless the department determines that the physician is an appropriate candidate for participation in a rehabilitation program in accordance with subsection (b) and the physician agrees to participate in such program. . . .  If at any time subsequent to the filing of a petition and during the eighteen-month period, the department makes a finding of no probable cause, the petition and the entire record of such investigation shall remain confidential unless the physician requests that such petition and record be open.  [Emphasis supplied].

16. It is found that, subsequent to the filing of the complainant’s administrative petition, and during the eighteen month period immediately following, the respondent agency made a finding of no probable cause pursuant to §20-13e, G.S. 

 

17. It is found that the respondent agency has informed the complainant of its no probable cause determination.

 

18. Despite the no probable cause determination, the respondents did provide the complainant with a copy of their investigation concerning the hospital. 

 

19. At the contested case hearing, the complainant stated that he wanted to challenge the constitutionality of §20-13e, G.S., under the Due Process and Equal Protection clauses of the Constitution.  The complainant also contended that, even if the physician would not consent to the disclosure of the records of investigation concerning him, this physician should not be able to control the records of investigation concerning his staff.

 

20. The Commission lacks jurisdiction to decide the complainant’s constitutional claims.  However, the Commission notes that the Legislature’s enactments are presumed to be constitutional. See Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 566 (1998) (“Legislation is presumed to be constitutional, and a litigant challenging [a statute’s] validity has the heavy burden to establish its unconstitutionality beyond a reasonable doubt.").  The Commission further notes that §20-13e, G.S., was first enacted in 1976, and the administrative scheme embodied in the statute has weathered several challenges and much scrutiny.  See 1976 Conn. Acts 276; see also Bateman v. Greenwich Hosp., X05CV085009829S, 2011 Conn. Super. LEXIS 468 (Feb. 22, 2011); and Doe v. CT Dep’t of Health, CV 990361899S, 1999 Conn. Super. LEXIS 2013 (July 26, 1999). 

 

21. With regard to the complainant’s second contention, it is found that it is the respondents’ procedure to open a case and conduct any necessary investigation under a physician’s name.  It is further found that the investigation concerning a particular physician subsumes the investigation of his staff, if such individuals are mentioned in the originating petition.  Accordingly, it is found that, in this case, any investigatory records that were created with regard to this particular physician cannot be separated from the investigatory records concerning his staff because such records would be contained within one report, opened under the physician’s name for the purpose of investigating all of the matters raised in the complainant’s administrative petition.

22.  Based on the findings in paragraph 16, above, it is found that any records that are in the respondents’ possession are investigatory records, which are exempt from disclosure pursuant to the provisions of §20-13e, G.S.

23. Based on the foregoing, it is concluded that the respondents did not violate the disclosure provisions of the FOI Act. 

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

1.  The complaint is dismissed.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 16, 2011.

 

__________________________

Cynthia A. Cannata

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:

 

Raymond Godaire

24 North Fifth Avenue, Apt. 312

Taftville, CT  06380

 

Commissioner, State of Connecticut, Department of Public Health, Investigations Department; and State of Connecticut, Department of Public Health

c/o Daniel Shapiro, Esq.

Assistant Attorney General

Office of the Attorney General

55 Elm Street, 5^th Floor

Hartford, CT  06106

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2011-086/FD/cac/11/16/2011