20100324MRM

TO: Freedom of Information Commission

FROM: Thomas A. Hennick

RE: Minutes of the Commission’s regular meeting of March 24, 2010

A regular meeting of the Freedom of Information Commission was held on March 24, 2010, in the Freedom of Information Hearing Room, 18-20 Trinity Street, Hartford, Connecticut. The meeting convened at 2:12 p.m. with the following Commissioners present:

Commissioner Andrew J. O’Keefe, presiding

Commissioner Sherman D. London

Commissioner Dennis O’Connor (participated via speakerphone)

Commissioner Norma E. Riess

Commissioner Owen P. Eagan

Also present were staff members, Colleen M. Murphy, Clifton A. Leonhardt, Victor R. Perpetua, Tracie C. Brown, Gregory F. Daniels, Lisa F. Siegel, Valicia D. Harmon, Paula S. Pearlman, Cindy Cannata and Thomas A. Hennick.

Those in attendance were informed that the Commission does not ordinarily record the remarks made at its meetings, but will do so on request.

The Commissioners unanimously voted to adopt the minutes of the Commission’s regular meeting of March 10, 2010.

Docket #FIC 2009-240 Yomar Fana v. Commissioner, State of Connecticut, Department of Public Safety, Division of State Police; and State of Connecticut, Department of Public Safety, Division of State Police

Yomar Fana participated via speakerphone. The Commissioners unanimously voted to adopt the Hearing Officer’s Report.

Docket #FIC 2009-248 Jordan Smith v. Chief, Police Department, City of Bridgeport; and Police Department, City of Bridgeport

Jordan Smith participated via speakerphone. The Commissioners unanimously voted to adopt the Hearing Officer’s Report.

Minutes, Regular Meeting, March 24, 2010

Page 2

Docket #FIC 2009-450 Luis Salaman v. James M. Lewis, Chief, Police Department, City of New Haven; and Police Department, City of New Haven

The Commissioners unanimously voted to adopt the Hearing Officer’s Report.

Docket #FIC 2009-182 Steven Edelman v. Jean de Smet, First Selectman, Town of Windham

Steven Edelman appeared on his own behalf. Attorney Russell Jarem and Attorney Adrienne Maciulewski appeared on behalf of the respondent. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.

Docket #FIC 2009-183 Steven Edelman v. Donald Schultz, Building Official, Town of Windham

Docket #FIC 2009-184 Steven Edelman v. Donald Schultz, Building Official, Town of Windham

Docket #FIC 2009-185 Steven Edelman v. Donald Schultz, Building Official, Town of Windham

Minutes, Regular Meeting, March 24, 2010

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Docket #FIC 2009-186 Steven Edelman v. Donald Schultz, Building Official, Town of Windham

Docket #FIC 2009-187 Steven Edelman v. Donald Schultz, Building Official, Town of Windham

Docket #FIC 2009-195 Joseph McNeil v. Chief, Police Department, City of Stratford; and Police Department, City of Stratford

Attorney Clayton Quinn appeared on behalf of the complainant. Attorney Bryan LeClerc appeared on behalf of the respondents. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.

Docket #FIC 2009-200 Matthew Warshauer v. Commissioner, State of Connecticut, Department of Mental Health & Addiction Services; and State of Connecticut, Department of Mental Health & Addiction Services

Attorney James Brown appeared on behalf of the complainant. Assistant Attorney General Jacqueline Hoell appeared on behalf of the respondents. The Commissioners voted, 4-0, to amend the Hearing Officer’s Report. The Commissioners voted, 4-0, to adopt the Hearing Officer’s Report as amended.* The proceedings were recorded digitally. Commissioner London recused himself from the matter.

Minutes, Regular Meeting, March 24, 2010

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Docket #FIC 2009-233 Albert S. Karpus v. Chief, Police Department, City of Bridgeport; and Police Department, City of Bridgeport

The Commissioners unanimously voted to adopt the Hearing Officer’s Report.

Docket #FIC 2009-333 Mary Ann Dostaler v. Water Development Task Force, Town of East Hampton

The Commissioners unanimously voted to adopt the Hearing Officer’s Report.

Docket #FIC 2009-346 Mary Ann Dostaler v. Water Development Task Force, Town of East Hampton; and Town Council, Town of East Hampton

The Commissioners unanimously voted to adopt the Hearing Officer’s Report.

Clifton A. Leonhardt reported on the New Britain Superior Court Memorandum of Decision in Division of Criminal Justice, John Rose, Corporation Counsel and Eddie Perez, Mayor, City of Hartford v. Freedom of Information Commission, et al and Division of Criminal Justice, John Rose, Corporation Counsel and Eddie Perez, Mayor, City of Hartford v. Freedom of Information Commission, et al. dated February 25, 2010. The Commissioners unanimously voted to authorize staff to respond to any appeal filed in the matter.

Victor R. Perpetua reported on pending appeals.

Colleen M. Murphy and Paula S. Pearlman reported on legislation.

Colleen M. Murphy offered a memorial tribute to Rosalyn Dixon, FOI Fiscal Administrative Assistant, who passed away on March 20. A moment of silence was observed in Rosalyn’s memory.

The meeting was adjourned at 3:28 p.m.

______________________

Thomas A. Hennick

*SEE ATTACHED FOR AMENDMENTS and CORRECTIONS

MINREG meeting 03242010/tah/03252010

Minutes, Regular Meeting, March 24, 2010

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AMENDMENT

The Hearing Officer’s Report is amended as follows:

[ 11. It is found that the psychiatrist-patient privilege was first established in 1961 with the enactment of Public Act 529, “An Act Concerning a Privilege of Non-Disclosure for Communications Between Patient and Psychiatrist.” It is further found that the law concerning the psychiatrist-patient privilege was amended and applied for the first time to mental health facilities in 1969 with the enactment of Public Act 819, “An Act Concerning the Confidentiality of Communications and Records of Mental Health Patients.” (See 1969 Conn. Pub. Acts 819 and 1961 Conn. Pub. Acts 529).

12. It is found that prior to the enactment of Public Act 61-529, there was no psychiatrist-patient or any other doctor-patient privilege or confidentiality in the common law of Connecticut. See Edelstein v. Dep’t of Pub. Health & Addiction Serv., 240 Conn. 658, 662, 692 A.2d 803 (1997) (stating that “[a] common law privilege for communications made by a patient to a physician has never been recognized in this state”).

13. It is therefore found that the addition of the statutory protection providing for confidentiality of psychiatrists’ and patients’ communications and records was in derogation of the common law of this state, creating rights and obligations which had not previously existed.

14. It is concluded that the statutory scheme creating the psychiatrist-patient privilege must be construed narrowly. See, e.g. Sims v. Honda Motor Co., 225 Conn 401, 411, 623 A.2d 995 (1993) (stating that “[t]he rule of statutory construction that encourages narrow construction of statutes in derogation of the common law generally promotes narrow construction of the statute’s change in the common law”); see also Warner v. Leslie-Elliott Constructors, Inc., et al., 194 Conn. 129, 137, 479 A.2d 231 (1984) (stating that “[n]o statute is to be constructed as altering the common law, farther than its words import”).

15. Furthermore, pursuant to §55-3, G.S., entitled “Limitation of effect of certain acts,” the Legislature has determined that “[n]o provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on

Minutes, Regular Meeting, March 24, 2010

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any person or corporation, shall be construed to have a retrospective effect.” See also Anderson Consulting v. Comm’r of Revenue Serv., 255 Conn. 498, 517, 767 A.2d 692 (2001) (“Whether to apply a statute retroactively or prospectively depends on the intent of the legislature. In order to determine the legislative intent, we utilize well established rules of statutory construction. Our point of departure is General States §55-3. . . . The obligations referred to in [§55-3] are those of substantive law. . . . Thus, we have uniformly interpreted §55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only. This presumption in favor of prospective applicability, however, may be rebutted when the legislature clearly and unequivocally expresses its intent that the legislation apply retroactively.”) (Internal quotations omitted).

16. It is found that the records described in paragraph 2, above, relate to persons treated at CVH in or around the 1860s through the 1880s, which timeframe precedes the enactment of Connecticut’s psychiatrist-patient privilege codified at §52-146d, et seq., G.S., by approximately one hundred years.

17. It is found that the respondents failed to prove that the legislature clearly and unequivocally intended that Connecticut’s psychiatrist-patient privilege be applied retroactively.]

11. IT IS FOUND THAT THE RECORDS DESCRIBED IN PARAGRAPH 2, ABOVE, RELATE TO PERSONS TREATED AT CVH IN OR AROUND THE 1860S THROUGH THE 1880S.[1]

[18. Moreover,] 12. It is found that the respondents failed to prove that the records described in paragraph 2, above, constitute “communication and records” within the meaning of §52-146d (2), G.S. (See discussion at paragraph [23] 16, below).

[19.] 13. It is therefore concluded that the records described in paragraph 2, above, are not exempt from the disclosure provisions of the FOI Act by virtue of to the provisions of §52-146d, et seq., G.S.

[20.] 14. The respondents [further] NEXT contend that the FOI Act is not the proper vehicle to obtain access to the records described in paragraph 2, above; rather, the statutory scheme with regard to the psychiatrist-patient privilege contains its own procedure for accessing these records. Specifically, the respondents contend that the

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only manner for the complainant to gain access to the records at issue is through the procedures set forth in §52-146g, G.S., which require the submission of a research plan. Section 52-146g, G.S., provides as follows:

A person engaged in research may have access to psychiatric communications and records which identify patients where needed for such research, if such person's research plan is first submitted to and approved by the director of the mental health facility or his designee.

The communications and records shall not be removed from the mental health facility which prepared them. Coded data or data which does not identify a patient may be removed from a mental health facility, provided the key to the code shall remain on the premises of the facility.

The mental health facility and the person doing the research shall be responsible for the preservation of the anonymity of the patients and shall not disseminate data which identifies a patient except as provided by sections 52-146d to 52-146j, inclusive.

[21.] 15. It is found that, according to the respondents’ testimony, any research plan approved by the respondents would not include the ability of the researcher to identify in a research report any single individual.

[22.] 16. It is further found that the respondents failed to produce any evidence that would tend to show that the records, which were created in the 19^th century, were created at the behest of a “psychiatrist”—that is “a person licensed to practice medicine who devotes a substantial portion of his time to the practice of psychiatry,” or “a person reasonably believed by the patient to be so qualified.” See §52-146d (7), G.S., above.

[23.] 17. If is further found that while the respondents made some presumptive statements at the contested hearing, (i.e., “because [the complainant] wanted CVH records, they were psychiatric records”; “given the fact that CVH records . . . are psychiatric records. . . ”; “I don’t know if [these records] were created before the science of psychiatry, I’m not an expert in that, but it is our position that these records. . . [are psychiatric records]”), without providing an evidentiary basis for such statements, they failed to prove that the records at issue (to wit, “files related to Civil War soldiers who were treated for ailments as a result of their wartime experiences”) are psychiatric communications or records within the meaning of §52-146g, G.S, as

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such terms are defined in §52-146d(2), G.S.

[24.] 18. Next, the respondents contend in their Pre-Hearing Memorandum that the records at issue are exempt from disclosure pursuant to the provisions of §1-210(b)(2), G.S. Section 1-210(b)(2), G.S., provides in relevant part that nothing in the FOI Act shall require disclosure of “. . . personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .”

[25.] 19. The Supreme Court set forth the test for the exemption contained in §1-210(b)(2), G.S., in Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993). The claimant must first establish that the files in question are personnel, medical or similar files. Second, the claimant must show that disclosure of the records would constitute an invasion of personal privacy. In determining whether disclosure would constitute an invasion of personal privacy, the claimant must establish both of two elements: first, that the information sought does not pertain to legitimate matters of public concern, and second, that such information is highly offensive to a reasonable person. The Commission takes administrative notice of the multitude of court rulings, Commission final decisions(Endnote 1), and instances of advice given by the Commission and staff members(Endnote 2), which have relied upon the Perkins test, since its release in 1993.

[26.] 20. It is found that the records described in paragraph 2, above, constitute “medical” files within the meaning of §1-210(b)(2), G.S.

[27.] 21. It is further found that the complainant and his students intend to undertake a scholarly review of the records described in paragraph 2, above, to determine whether said records contain information about Civil War soldiers’ military service and war-related experiences, and, perhaps, the diagnosis and treatment of PTSD in the 19^th century. It is further found that the complainant is overseeing the research and planning for the 150^th anniversary commemoration in 2011 of Connecticut’s role in the Civil War. It is further found that, as part of this overall project, the complainant hopes to research and to report upon the existence among Connecticut Civil War Soldiers of PTSD.

[28.] 22. Based on the findings in paragraph [27] 21, above, it is found that the records pertain to legitimate matters of public concern. It is further found that the disclosure of such information concerning long-dead individuals would not be highly offensive to a reasonable person.

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[29.] 23. It is found that the disclosure of the records described in paragraph 2, above, would not constitute an invasion of personal privacy, within the meaning of §1-

210(b)(2), G.S. It is concluded that such records are not exempt from disclosure by virtue of said provision.

[30.] 24. Finally, the Commission notes that the respondents contend in their Pre-Hearing Memorandum and their Post-Hearing Memorandum that the records at issue are exempt from disclosure pursuant to §1-210(b)(10), G.S. (See Resp. Pre-Hearing Memo at 2-3 (“A further exception to the this rule [of disclosure] can be found at Conn. Gen. Stat. §1-210(b)(10). . . .”) and Resp. Post-Hearing Memo. at 5). Apparently, it is the respondents’ position that, because §1-210(b)(10), G.S., contains the phrase “state statutes,” this section lends support to their contention that the records are exempt from disclosure pursuant to Connecticut’s statute concerning the psychiatrist-patient privilege, already discussed above.

[31.] 25. Section 1-210(b)(10), G.S., states that nothing in the FOI Act shall require disclosure of “[r]ecords, tax returns, reports or statements exempted by federal law or state statutes or communications privileged by the attorney-client relationship.”

[32.] 26. It is found that the respondents failed to produce any evidence to prove that the records described in paragraph 2, above, are the kind of records contemplated by §1-210(b)(10), G.S. In fact, other than recite the language contained in §1-210(b)(10), G.S., it is found that the respondents did not present any evidence during the contested hearing that would tend to prove that the records at issue are exempt under this provision. Therefore, it is concluded that the records described in paragraph 2, above, are not exempt from the disclosure provisions of the FOI Act pursuant to §1-210(b)(10), G.S.

[33.] 27. It is concluded that the respondents violated the disclosure provision of §1-210(a), G.S., by denying the complainant’s request for access to the records described in paragraph 2, above.

[1] The Commission notes that, while the respondents could not testify specifically as to whether they had ever received a request for access to records that were created more than a hundred years ago, they did testify generally, as follows: “we have never had a request like this before.”