FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Bethann Baer,
Complainant
against Docket #FIC 93-188
Drug Control Division, State of Connecticut
Department of Consumer Protection,
Respondent March 9, 1994
The above-captioned matter was heard as a contested case on October 8, 1993, at which time the complainant and the respondent 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 respondent is a public agency within the meaning of 1-18a(a), G.S.
2. It is found that by letter dated May 7, 1993 (hereinafter "May request"), the complainant requested that the respondent provide her with copies of all documents concerning or referencing her. By letter dated June 25, 1993 (hereinafter "June request"), the complainant requested that the respondent provide her with copies of all documents or reports resulting from "inspections, investigations or otherwise related to Hughes Convalescent Home and/or New Britain Memorial Hospital" which in any way referenced her.
3. It is found that by letter dated June 7, 1993, the respondent denied the complainant's May request stating that the information concerning the complainant could only be disclosed at a proceeding relating to licensure, in accordance with 21a-306, G.S.
4. By letter of complaint dated July 3, 1993, and filed with the Commission on July 6, 1993, the complainant appealed the respondent's denial.
5. By reply letter dated August 3, 1993, the respondent reiterated its position that the records sought in the complainant's June request were not disclosable except at a proceeding related to licensure.
Docket #FIC 93-188 Page Two
6. The respondent claims that 21a-306, G.S., precludes disclosure of the records at issue.
7. Section 21a-306, G.S., in pertinent part states:
Information received by the ... state department of consumer protection ... shall not be disclosed publicly in such a manner as to identify individuals or institutions except in a proceeding involving the question of licensure or right to practice .... (Emphasis added.)
8. It is found that pursuant to the respondent's investigation of a care-giving institution records were compiled which are responsive to the complainant's requests.
9. It is found that while a licensure proceeding was held and some of the documents concerning the complainant were produced at that proceeding, additional documentation does exist that was neither requested, nor produced, at the licensure proceeding.
10. Specifically, the respondent concedes that there are "proof of use sheets" or records of the dispensation of drugs at particular facilities that may not have been disclosed to the complainant as part of her licensure proceeding.
11. In an effort to avoid duplication, at the hearing on this complaint the complainant limited her request to those records that were neither requested, nor produced, at the licensure proceeding.
12. The complainant also disavowed any interest in knowing the names or identites of individuals or institutions contained in the proof of use sheets.
13. At the hearing on this matter, the respondent conceded that it is possible to redact, delete or blacken the names and identities of individuals, including patients and facility staff so that essentially what would remain is a record of drug and quantity distribution.
14. The respondent argued, however, that information identifying or referencing certain institutions would be more difficult to mask because generally the form or format used is uniquely that of a particular institution.
15. It is found that the proof of use sheets are responsive to the complainant's May and June requests.
Docket #FIC 93-188 Page Three
16. It is found that because the complainant's June request focuses specifically on two facilities, disclosure of proof of use sheets from either facility would allow the complainant to surmise which facility's records had been provided.
17. It is therefore concluded that the records at issue are public records within the meaning of 1-18a(d), G.S., but the Hughes Convalescent Home and New Britain Memorial Hospital proof of use records are exempt from disclosure under 1-19(a), G.S., by operation of 21a-306, G.S.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Within thirty days of the date of mailing of the notice of final decision in this case, the respondent shall provide the complainants with either copies of those proof of use sheets for facilities other than those identified in paragraph 17, above, or an affidavit that none exist which are responsive to the complainant's request other than those proof of use records for Hughes Convalescent Home or New Britain Memorial Hospital.
2. The respondent may redact the identities of individuals, including patients and facility staff, as well as information identifying or referencing particular institutions for any proof of use records provided to the complainant.
Approved by Order of the Freedom of Information Commission at its regular meeting of March 9, 1994.
Elizabeth A. Leifert
Acting Clerk of the Commission
Docket #FIC 93-188 Page Four
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:
Bethann Baer
c/o Richard H. Kosinski, Esq.
106 Farmington Avenue
New Britain, CT 06053
Drug Control Division, State of Connecticut,
Department of Human Resources
c/o Michael A. Arcari, Esq.
Assistant Attorney General
110 Sherman Street
Hartford, CT 06105
Elizabeth A. Leifert
Acting Clerk of the Commission