Comm'r of Mental Health & Addiction Servs. v. Freedom of Info. Comm'n

347 Conn. 675

299 A.3d 197

COMMISSIONER OF MENTAL HEALTH AND ADDICTION SERVICES et al. v. FREEDOM OF INFORMATION COMMISSION et al.

SC 20686

Supreme Court of Connecticut.

Argued September 8, 2022

Officially Released August 29, 2023

Valicia Dee Harmon, commission counsel, for the appellant-cross appellee (named defendant).

Alma Rose Nunley, assistant attorney general, with whom, on the brief, were William Tong, attorney general, Clare Kindall, former solicitor general, and Emily V. Melendez, assistant attorney general, for the appellees-cross appellants (plaintiffs).

Robinson, C. J., and McDonald, D'Auria, Mullins, Ecker, Keller and Cradle, Js. ^*

ECKER, J.

This appeal presents the issue whether a police report created by the police department at the Whiting Forensic Division of Connecticut Valley Hospital (Whiting) ¹ is subject to disclosure under the Freedom of Information Act (FOIA), General Statutes § 1-200 et seq. The police report at issue documented the police department's investigation into the death of a patient at Whiting after a medical event. The named defendant, the Freedom of Information Commission (commission), appeals from the judgment of the trial court, which ordered the disclosure of a redacted version of the police report under FOIA, claiming that the report should be released in its entirety because it is not exempt from disclosure by (1) the psychiatrist-patient communications privilege codified at General Statutes §§ 52-146d (2) and 52-146e (a), or (2) the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. § 1320d et seq., as implemented by the Privacy Rule, 45 C.F.R. § 160.101 et seq. The plaintiffs, the Commissioner of Mental Health and Addiction Services and the Department of Mental Health and Addiction Services (DMHAS), disagree and cross appeal, claiming that the police report should not be released at all, even in redacted form, because it is protected by the psychiatrist-patient communications privilege and HIPAA.

We conclude that the police report is not a communication or record, as those terms are used in § 52-146e (a), and, therefore, is not exempt from disclosure under FOIA. Nonetheless, the police report includes information that would identify a patient at Whiting, even though such information specifically was excluded from the FOIA request, and the report therefore should be redacted in the manner described in part III A 2 of this opinion. Because the police report, with minimal redaction, must be disclosed pursuant to FOIA, we further conclude that it is not protected from disclosure by HIPAA and its implementing Privacy Rule. Accordingly, we reverse in part the judgment of the trial court.

I FACTS AND PROCEDURAL HISTORY

On November 9, 2017, Josh Kovner, a reporter with The Hartford Courant, ² submitted a FOIA request to DMHAS, asking for the release of "DMHAS Police Department incident reports on any and all deaths in 2016 of Whiting ... patients that were deemed ‘accidental’ by the [state] medical examiner's office, including, but not limited to, [the] death of a patient on Dec[ember] 1, 2016. At the time, in reference to the Dec[ember] 1, 2016, death, DMHAS said in a statement that the patient ‘died due to a medical event.’ " In his request, Kovner added that "[a]ll references to the identity of a patient can be redacted."

DMHAS denied Kovner's request, explaining that the responsive public record was exempt from disclosure under FOIA on three grounds: (1) it was protected by the psychiatrist-patient communications privilege codified at §§ 52-146d (2) and 52-146e (a) ; see General Statutes § 1-210 (b) (10) ; (2) it constituted "[p]ersonnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy"; General Statutes § 1-210 (b) (2) ; and (3) HIPAA's Privacy Rule "also prohibit[ed] the release of personal health information without the consent of the patient or the authorized representative."

Kovner filed a complaint with the commission challenging the denial of his FOIA request. The hearing officer conducted an evidentiary hearing, at which DMHAS submitted the police report, in both redacted and unredacted form, for in camera inspection. Additionally, DMHAS adduced the testimony of Diana Lejardi, its public information officer. Lejardi explained that Whiting is a "maximum security unit" that provides "specialized forensic services" to patients who are "involved in ... legal matters" and "have severe mental illness ...." Patient treatment was overseen by Michael Norko, a forensic psychiatrist. "DMHAS has its own police department," which is "specifically trained for DMHAS" and "located in different facilities, including in Whiting ...." According to Lejardi, DMHAS employs its own police force "for a number of reasons. One [is] because it is a maximum security unit, and they do general screening of people entering and exiting the facility. And, in addition ... because [it] is a maximum security unit ... there are, at times, patients with severe behaviors [who] may require some type of ... interaction [with] or ... assistance from ... DMHAS police. So, staff may call a code, which would require ... [the] police to respond."

At the hearing, Lejardi was asked whether DMHAS police reports are used to make decisions about patient diagnosis or treatment, and she responded that she did not "have enough knowledge" to answer that question. When asked whether it was likely that a police report would be used in the diagnosis or treatment of a patient, Lejardi answered: "I think it is likely that they can take reports because [that's] what ... [the] police do—there are times [when] there are events between patients in which [the] police will take witness statements. ... [W]e have to remember [that] these are patient[s] ... with severe mental illness ... [a]nd/ or substance use disorders. ... [S]o, in the course of a witness statement ... there may be information gathered that is used ... or [that] the medical team or treatment team may use ... or further explore at least." Lejardi acknowledged, however, that information in a police report "obviously ... would not be used to make the diagnosis or treatment of the [patient] ... [i]f the person passed away."

Following the hearing and in camera inspection of the police report, the hearing officer issued a written decision, finding that the police report was subject to disclosure without redaction under FOIA. The hearing officer's decision was adopted unanimously by the commission.

In arriving at its conclusion, the commission recognized that the police report "contain[s] the name or other identifying information of a patient" but determined that it was not protected by the psychiatrist-patient communications privilege on the ground that "the police officers [did] not participate in the diagnosis or treatment of a patient's mental condition ...." Because "none of the requested records [was] between the patient and a psychiatrist, or between a member of the patient's family and a psychiatrist, or between any of such persons and a person participating under the supervision of a psychiatrist in the accomplishment of the objectives of diagnosis and treatment," the commission concluded that the police report did not "relate to the diagnosis or treatment of a patient's mental condition, within the definition[s] set forth in [§§] 52-146d (2) [and 52-146e (a)]." ³ The commission also found that the police report was not exempt from disclosure under the personal privacy exemption in § 1-210 (b) (2). ⁴

As for the claim of exemption under HIPAA, the commission concluded that HIPAA was inapplicable because the DMHAS police department is not a "covered entity" and the police report did not include "health information," as defined by 45 C.F.R. § 160.103. Alternatively, even if HIPAA applied, the commission determined that the police report was subject to disclosure under the exemption in 45 C.F.R. § 164.512 (a), which provides that "[a] covered entity may use or disclose protected health information to the extent that such use or disclosure is required by law and the use or disclosure complies with and is limited to the relevant requirements of such law." Because FOIA requires the disclosure of public records in the absence of an applicable exemption, and there was no applicable exemption in this case, the commission concluded that the police report was not protected by HIPAA.

DMHAS appealed from the decision of the commission to the Superior Court pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-183. The trial court concluded that "communications and records" in § 52-146d (2), which defines the operative terms of the statutory privilege in § 52-146e (a), broadly encompasses all "records that occur in, or are prepared at, a mental health facility relating to the treatment of a patient's mental condition ...." Because Whiting is a mental health facility, the subject of the police report was a patient at Whiting, the DMHAS police department is a specialized force stationed and employed at Whiting, and the provision of mental health treatment services at Whiting depends on the presence of the DMHAS police, the trial court concluded that the police report came within the scope of the statutory privilege, insofar as it was "prepared at a mental health facility" and "relate[d] to the treatment of the mental condition of a patient" within the meaning of § 52-146d (2). The hearing officer's determination to the contrary was "not supported by substantial evidence in the record and [was] a clear error of law."

The trial court nonetheless concluded that the police report could be disclosed with redaction to remove information that would "identify a patient" in accordance with § 52-146e (a). (Footnote omitted.) The analysis of whether a public record identifies a patient, the trial court stated, "does not take into consideration what...