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FREEDOM OF INFORMATION COMMISSION |
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In
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Advisory Opinion #20 |
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Commissioner of Social Services, Applicant |
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July 7, 1976 |
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The Commission has agreed to respond to the request for an advisory opinion submitted by the Commissioner of Social Services. The Commissioner advised that his department is responsible for payments to physicians and others who provide medical services to persons receiving public assistance. He then stated that he had caused to be released for publication a list of the amounts paid to various providers during 1975, that such information had been publicized throughout the state, and that he had received communications from various physicians and others who complained their rights of privacy had been invaded.
The Commission advises the Commissioner of Social Services that, in its opinion, the release of the amounts paid under contract by the State of Connecticut does not constitute an invasion of the privacy of the recipients of these amounts. Such disclosure was required by §1-19 G.S., as amended by §2 of P.A. 75-342.
These payments are recorded in public records, which are, defined as "any recorded data or information relating to the conduct of the public's business prepared, owned used, received or retained by a public agency…." (§l(d), Id.)
Access to such records is directed by that portion of §2(a) of the Act that says:
"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 inspect or copy such records at such reasonable time as may be determined by the custodian thereof."
The Commissioner's inquiry is submitted in response (interalia) to the complaint of a professional services corporation, which renders medical services through its officers, employees, and agents who are physicians. (Chapter 594a G.S. and note §33-182d G.S.) This raises the question whether the claim of a right of privacy is asserted in behalf of the corporation and, if so, whether any right of privacy is applicable in this instance. The Commission does not think that any such right applies to the facts that have been submitted, regardless of whether the right is asserted in behalf of a corporate entity or of an individual physician.
A federal law might be construed to apply, if the United States Constitution set forth any right of privacy that extended to the class described by the Commissioner of Social Services. In one recent leading case, the United States Supreme Court held that a right of privacy is found in the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution (Roe v. Wade, 410 U.S. 113, 1973). However, after reviewing its earlier decisions, the Court concluded that, "These decisions make it clear that only personal rights that can be deemed 'fundamental' or 'implicit' in the concept of ordered liberty,' ... are included in this guarantee of personal privacy." (Id., P. 152)
As to any constitutionally guaranteed right, the Court noted the protection that the First Amendment accorded to persons possessing printed or filmed matter in the privacy of one's own home Stanley v. Georgia, 394 U.S. 557, 1969). It further noted the protection of rights accorded under the Fourteenth Amendment, which it had described in 1923 in the following memorable words:
"…[I]t denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life., to acquire useful knowledge, to marry, establish a home and bring up children, worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." (Meyer v. State of Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042, 1923)
Nevertheless, despite this enumeration of personal rights deemed fundamental or implicit in the concept of ordered liberty, the United States Supreme Court as recently as 1973 mentioned nothing that could remotely be associated with a claim of secrecy to protect the employees of a professional services corporation or any other supplier of services to the State of Connecticut from being "compromised by adverse publicity," as the Commissioner's complainant described it.
Rather the Commission is persuaded that the right of privacy asserted in this context is in fact the invocation of some form of prior restraint on the publication of the amounts of money and the volume of services furnished by this professional services corporation and others to the State of Connecticut. In the far more serious setting of the protection of the rights of an accused on trial for a criminal offense, the United States Supreme Court has even more recently held that a court ordered prior restraint was unlawful as a violation of the First Amendment (Nebraska Press Assn. v. Stuart, Docket No. 75-817, decided June 30, 1976). The same problem that the Commissioner of Social Services now faces was mentioned by the Court in the following reference tot the authors of the Constitution:
"Their chief concern was the need for freedom of expression in the political arena and the dialogue in ideas, but they recognized that there were risks to private rights from an unfettered press. Jefferson, for example, writing from Paris in 1786 concerning press attacks on John Jay stated.
"'In truth it is afflicting that a man who has passed his life in serving the public …should yet be liable to have his peace of mind so much disturbed by any individual who shall think proper to arraign him in a newspaper. It is, however, an evil for which there is no remedy. Our liberty depends on the freedom of the press, and that cannot be limited without being lost....'" (Id., quotation reported in The New York Times, July 1, 1976, p. 16)
The Commission's weighing of this assertion of a claim for protection under the First Amendment is further admonished by the explanatory comment of the Court that follows:
"The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.
"A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it at least
for the time.
"The damage can be particularly great when the prior restraint falls upon the communication of news and commentary on current events." (Id.)
The Commission finds that the claim of a right of privacy is nothing more than a demand that a public agency, the Commissioner of Social Services, not provide access to public records that set forth the amounts and conditions under which a supplier of goods or services to the State of Connecticut has been paid public funds. This transaction is clearly the conduct of the public's business within the meaning of P.A. 75-342 and has nothing to do with any medical file or similar file the disclosure of which would constitute an invasion of personal privacy.
Special attention is drawn to the Commissioner's commendable implementation of §3 of P.A. 75-342, which provides that, "Nothing in this act shall be ... construed as preventing any public agency from opening its records concerning the administration of such public agency to public inspection...." This compliance with the spirit and the letter of this statute was consistent with the Commission's own evaluation of the relative priority to be accorded these competing First Amendment rights.
It is recognized that in the future this action must be taken in the face of the complainant's threat to refuse to treat public assistance clients of the Commissioner of Social Services. Certainly, the same Constitution protects these physicians against involuntary servitude, if that is their choice (U.S. Constitution, Thirteenth and Fourteenth Amendments). Public Act 75-342 does not authorize the Commissioner to make an exception in any case other than those instances encompassed by the exceptions stated in the Act at §2(a), however. It must follow that the Commissioner of Social Services is advised that the General Assembly's mandate requires that he confront any person or corporation that offers such a threat and that in the future he will be expected to take such appropriate action as the law permits to continue necessary services to the public assistance clients, while at the same time complying with the provisions of §1-19 G.S., as amended by §2 of P.A. 75-342.
By Order of the Freedom of
Information Commission
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Herbert Brucker, Chairman of
of the Freedom of Information
Commission
Date _ July 16, 1976___
Ordered_________________
Louis J. Tapogna, Clerk