FREEDOM OF INFORMATION OFFICER v. FREEDOM OF INFORMATION COMMISSION—CONCURRENCE
Supreme Court of Connecticut
The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for
All opinions are subject to modification and technical correction prior to
The syllabus
******************************************************
McDONALD, J., with whom PALMER, J., joins, concurring in part and dissenting in part. The
The records at issue in this appeal and cross appeal concern Amy Archer Gilligan, a notorious serial killer who was perhaps
The circumstances presented in this case are fairly characterized as unique. I recognize that one might ordinarily expect that records held by mental health treatment facilities would, as a general matter, not be subject to public records requests. But, because the documents at issue here were created and are held by a public institution where Gilligan was committed after her conviction, they are subject to the Freedom of Information Act (act),
leges and protections that intersect and, in some cases, overlap to address privacy concerns that the legislature has deemed worthy of protection.
In the present case, the defendant Freedom of Information Commission (commission) ordered the release of some of Gilligan’s records, but the department maintains that they are exempt from release under two exemptions to the act: (1) the exemption in
The act mandates that all government records shall be open to the public for its review, subject to certain, limited exemptions. We have acknowledged, repeatedly and forcefully, that the legislative policy embodied in the act represents this state’s abiding commitment to ‘‘the open conduct of government and free public access to government records.’’ Wilson v. Freedom of Information Commission, 181 Conn. 324, 328, 435 A.2d 353 (1980); Perkins v. Freedom of Information Commission, 228 Conn. 158, 166, 635 A.2d 783 (1993) (same); Board of Education v. Freedom of Information Commission, 208 Conn. 442, 450, 545 A.2d 1064 (1988) (same). ‘‘We consistently have held that this policy requires us to construe the provisions of the [act] to favor disclosure and to read narrowly that act’s exceptions to disclosure. See, e.g., Gifford v. Freedom of Information Commission, 227 Conn. 641, 651, 631 A.2d 252 (1993); Superintendent of Police v. Freedom of Information Commission, 222 Conn. 621, 626, 609 A.2d 998 (1992).’’ Waterbury Teachers Assn. v. Freedom of Information Commission, 240 Conn. 835, 840, 694 A.2d 1241 (1997).
The drafters of the act recognized that the presumption in favor of disclosure of public records would not serve to preordain that result in every instance. Rather, as Representative Martin B. Burke, who sponsored the bill in the House of Representatives, acknowledged, the presumption that records of public agencies would be open would have to yield ‘‘in those instances where superior public interest requires confidentiality.’’ (Internal quotation
Commission, supra, 181 Conn. 328. Indeed, that balancing effort must govern our interpretation and application of the act in circumstances such as those presented in the present case. Id., 328–29. In doing so, we presume that the records should be disclosed, we construe any exception to disclosure narrowly, and we place the burden of proving the applicability of that narrowly construed exception upon the agency advocating it. Id., 329.
This principle of restraint applies equally to the psychiatrist-patient privilege, which the legislature has identified as an exception to the act. Although the privilege provides protection for those records that fall within its scope, we must exercise great caution before granting that protection. With respect to the psychiatric patient privilege, we have explained that ‘‘[a]s with any claim of privilege, a statutory privilege has the effect of withholding relevant information . . . . Accordingly, although a statutory privilege must be applied so as to effectuate its purpose, it is to be applied cautiously and with circumspection because it impedes the truthseeking function . . . . [T]he purpose of the psychiatrist-patient privilege is to safeguard confidential communications or records of a patient seeking diagnosis and treatment . . . so as to protect [the] therapeutic relationship. . . . It therefore is axiomatic that [c]ommunications that bear no relationship to the purpose for which the privilege was enacted do not obtain shelter under the statute . . . .’’ (Citations omitted; internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 724, 759 A.2d 995 (2000)
Proper application of the principles underlying the act and its exemptions convinces me that some, but not all, of the documents at issue fall within the exceptions raised, and, therefore, should be redacted or withheld. I am also persuaded that some of the documents clearly are not exempt from release. My in camera review of these records leaves me concerned, however, about a third category of documents: those that contain medical information, including records of physical and dental examinations. The commission concluded that medical and dental records are not psychiatric in nature and therefore are subject to release. The department urges us to conclude, however, that medical and dental records are covered by the psychiatric-patient privilege as a matter of law because it is possible that they could relate to a patient’s psychiatric care. In my view, the law is more nuanced than the department allows. It is possible, but unclear from the face of the documents, that the medical and dental records may relate to Gilligan’s psychiatric treatment. I would, therefore, make clear that medical and dental records may properly be covered by the psychiatric-patient privilege if there is some evidence, either in the content of the document or through extrinsic evidence, that they in fact related to a patient’s psychiatric care. Consequently, I would
reverse, in part, the commission’s decision that all of the documents at issue must be released and remand the matter for further consideration of the medical and dental records.
The majority takes a different juristic approach, one that does not resemble a careful application of the psychiatric-patient privilege, and one that does not acknowledge the competing legislative priorities embodied in the act that we are compelled to balance. Rather than looking
I
PSYCHIATRIC COMMUNICATIONS PRIVILEGE
The psychiatrist-patient privilege is entirely a creature of statute. See
The department, as the proponent of the privilege in the present case, has the burden of proving that the privilege applies. New Haven v. Freedom of Information Commission, 205 Conn. 767, 777, 535 A.2d 1297 (1988). If the documents
Applying these governing principles to the documents at issue, I am persuaded that they fall generally into three categories: those that plainly fall within the requirements for applying the privilege; those that
plainly fall outside the privilege; and those records relating to Gilligan’s medical and dental care that may be privileged and should be reconsidered by the commission. I will address each category in turn.
A
As for the first category, some of the documents patently fall within the privilege, and I agree with the majority that they must be withheld or redacted. Based on my own in camera review of this subset of the documents, it is readily apparent that they relate to the diagnosis and treatment of Gilligan’s mental condition. They contain, for example, descriptions of Gilligan’s psychiatric diagnosis. This information properly falls within the privilege and should be exempted from release. The trial court’s judgment should be reversed in part and the matter remanded to the commission so that it may order these documents withheld or redacted as necessary to protect privileged information.
B
As for the second category of documents, these plainly fall outside the privilege. For one thing, a number of these documents have nothing to do with the ‘‘diagnosis or treatment of a patient’s mental condition . . . .’’
In addition, one of the documents reflects communications with a person who is not covered under the ambit of the statute. The privilege protects only those communications that are made between a patient, her family, her psychiatrist, or one acting under her psychiatrist’s supervision.
spondence with the insurance company that demonstrate that the purpose of the correspondence related to the payment of dividends from a life insurance policy. The only distinguishing aspect of the letter the department withheld is that it mentions Gilligan’s psychiatric diagnosis in response to the insurance company’s inquiry about whether Gilligan could transact business relating to the dividends. But, because the letter is a communication to a third party who is not covered under the reach of the statute, it cannot fall within the privilege. State v. Montgomery, supra, 724. The trial court’s judgment affirming the commission’s decision to permit the release of these documents should be affirmed.
C
The third category of documents, which pertains to Gilligan’s medical and dental care, presents a more difficult question. The commission, after reviewing these documents in camera, determined that nothing in them related to Gilligan’s psychiatric care and ordered them to be released. On appeal, the department asks this court to interpret the psychiatric-patient privilege to protect all of Gilligan’s medical and dental records as a matter of law. The commission, however, maintains its position that nothing in Gilligan’s medical and dental records establishes a relationship to her psychiatric care, and, thus, they cannot be privileged. The majority adopts the department’s interpretation and holds that all medical and dental records created at an inpatient psychiatric facility are, as a matter of law, privileged psychiatric records. I disagree and would instead clarify that medical and dental records may fall within the privilege, but only if there is some evidence, either in the documents or otherwise, to show that they relate to a patient’s psychiatric care. I would reverse that portion of the trial court’s judgment ordering disclosure of certain of the medical records and would order that court to remand the matter to the commission for it to reconsider the privileged status of these documents in light of this clarification.
Unlike the majority, I cannot accept the department’s expansive interpretation of the psychiatric privilege.
atric treatment.
The department’s interpretation favoring inpatient records has no basis in the statutory text.
The department argues that records of physical and dental examinations relate to psychiatric treatment because psychiatric illnesses sometimes involve physical symptoms and vice versa. This may be true, but this hypothetical possibility, standing on its own, does not justify an interpretation that all inpatient records relate to a patient’s psychiatric care as a matter of law. To be sure, an inpatient facility treating a person for mental illness will certainly produce many records pertaining to the patient, and many of those records will relate to the patient’s psychiatric care. But other records having nothing to do with the patient’s psychiatric care will also become part of the patient’s file for no other reason than that the patient happens to reside at the facility. A person involuntarily committed to an inpatient psychiatric facility is not free to leave the facility, and so becomes dependent on the facility for far more than just psychiatric care. Simply because a psychiatric inpatient might see a physician for a cholesterol screening or a dentist for a semiannual teeth cleaning does not, itself, establish that the patient’s health and dental cleaning records relate to a mental condition.
In support of its interpretation, the department cites to
relating to either ‘‘physical or mental’’ conditions. (Emphasis added.)
Rather than expanding the reach of the statute to favor records created in one place over those created in another, I would instead clarify that, just as with any other type of communication or record, medical and dental records may indeed fall within the privilege, but only if there is some evidence, either in the documents or otherwise, to show that they relate to a patient’s psychiatric care. If the contents of the documents do not establish the required relationship, then the proponent of the privilege can present testimony or other extrinsic evidence to demonstrate that records otherwise appearing to be purely medical and dental in nature nevertheless relate to the patient’s psychiatric care. For example, in State v. Jenkins, supra, 73 Conn. App. 162, the Appellate Court held that a record labeled ‘‘nursing assessment’’ that contained biographical data qualified as a psychiatric record because a psychiatrist from the treating facility specifically testified that all of the information in the assessment was used to ‘‘gather information about mental health issues . . . .’’ (Citation omitted; internal quotation marks omitted.) Jenkins demonstrates that supporting testimony need not be extensive, nor must it divulge the contents of the records. See id. The proponent must nevertheless present some evidence to show that a document meets the statutory requirements. Lash v. Freedom of Information Commission, supra, 300 Conn. 517–18. In light of this clarification, I would remand the matter back to the commission for further consideration of Gilligan’s medical and dental records under this standard. This would permit the commission to consider extrinsic evidence and determine whether, in light of that evidence, any of the remaining documents should be redacted or withheld under the psychiatric privilege or any other privilege that the department may properly raise.1
D
There is one additional point I must address with respect to the psychiatric privilege. As a fallback position, the department argues and the majority agrees
that
In the context of the act’s exemptions, the psychiatric-patient privilege statute;
For example, in State v. Montgomery, supra, 254 Conn. 723, a mental health assistant (assistant) was permitted to testify about patient conversations that she overheard even though her testimony identified the defendant as a psychiatric inpatient. The defendant in that case had committed a murder and, before he could be identified by police as the murderer, he checked himself into a psychiatric hospital, apparently because he was suicidal. Id., 711 and n.27. The hospital placed him under the watch of an assistant, who constantly monitored his activities. Id. , 722–23. While at the hospital, the defendant called an acquaintance and the assistant overheard the defendant telling the acquaintance to provide him with an alibi for the time of the murder. Id. , 723. The assistant was allowed to testify before the court, initially outside the presence of the jury, that the defendant was treated at the psychiatric hospital where she worked; that a psychiatrist had instructed her to monitor the defendant on a ‘‘ ‘one-to-one’ ’’ basis and to take notes of his activities every fifteen minutes; and that such protocol was typical for suicidal patients. Id. , 722–23. She also testified about the substance of the defendant’s telephone call. The trial court allowed her testimony and she repeated much of this same information to the jury. See State v. Montgomery, Conn. Supreme Court Records & Briefs, January Term, 2000, Defendant’s Appendix p. A-15 (in its closing argument, state explained that defendant was checked into psychiatric hospital and reminded jury of testimony given by assistant that she had to remain within arm’s reach of defendant and that she overheard certain telephone conversation). Following his conviction for murder, the defendant appealed to this court and claimed that the assistant’s testimony violated the psychiatric-patient privilege. State v. Montgomery, supra, 723. This court
upheld the admission of the testimony because the communications revealed by the assistant’s testimony did not meet the definition of protected communications and records. Id. , 725. Specifically, we concluded that the communications did not relate to the defendant’s diagnosis and treatment and, in addition, were not made to a party covered by the statute. Id. The department’s interpretation of communications and records in the present case, however, would have precluded the assistant’s testimony in its entirety in Montgomery because it identified the defendant as a psychiatric patient, thus rendering our holding in Montgomery invalid.
In support of its interpretation, the department cites Falco v. Institute of Living, 254 Conn. 321, 757 A.2d 571 (2000). In Falco, the plaintiff, a patient at the Institute of Living (Institute), a psychiatric facility, wanted to bring an action against a patient who had assaulted him at the Institute, but he did not know the other patient’s identity. Id., 323–24. The plaintiff sent a bill of discovery to the Institute demanding that it produce
Falco does not apply to the present case, however, because there is no confidential patient identity to be protected. Gilligan’s commitment to the hospital and her status as a psychiatric patient has been and remains a matter of official public record because Gilligan was committed to that facility for psychiatric care by order of public authorities following her conviction for murder in the second degree. After her conviction, she was sent to Connecticut State Prison in Wethersfield, but was later ‘‘reported to the [g]overnor as insane’’ and the governor ordered her to be transferred to the hospital ‘‘until she shall have recovered her sanity . . . .’’ The department has also previously released other
records, including letters to prison officials and a life insurance company, stating plainly that Gilligan was a patient at the hospital. One such letter on hospital letterhead states that Gilligan ‘‘is still a patient in this hospital and is enjoying quite comfortable health, physically, although mentally shows practically no change.’’ That Gilligan was a patient at the hospital is indisputably not a confidential fact, so the policy concerns that drove our decision in Falco are not implicated here. See Bieluch v. Bieluch, supra, 190 Conn. 819 (‘‘[c]ommunications that bear no relationship to the purpose for which the privilege was enacted do not obtain shelter under the statute and are admissible subject to the normal rules of evidence’’). Consequently, I would not extend Falco beyond its foundation to cover the nonconfidential information at issue in the present case.
Finally, the department also cites our prior observations that the psychiatric-patient privilege provides broad protections from disclosure for psychiatric records, but these observations do not justify expanding the reach of the statute beyond its text. Communications do not merit protections unless they fall within the statute’s scope, which we are powerless to expand. Moreover, the competing considerations at stake require us to apply the privilege ‘‘cautiously and with circumspection . . . .’’ (Internal quotation marks omitted.) State v. Montgomery, supra, 254 Conn. 724. Similarly, our freedom of information jurisprudence requires that we interpret its exemptions narrowly in light of the ‘‘overarching policy underlying the [act] favoring the disclosure of public records.’’ (Internal quotation marks omitted.) Director, Retirement & Benefits Services Division v. Freedom of Information Commission, 256 Conn. 764, 772–73, 775 A.2d 981 (2001). Any tension between the legislative policy behind the protections of the psychiatric-patient privilege and the act does not permit us to vitiate one policy in favor of the other; rather, it requires that we faithfully adhere to the limits prescribed in
II
PERSONAL PRIVACY EXEMPTION
My conclusion in part I leaves for consideration the question of whether the documents must be withheld under the second claimed exemption at issue, the invasion of personal privacy exemption in
at issue are the type of personnel, medical, or similar files protected by the exemption; the only question remaining is whether the release of those records would constitute an invasion of personal privacy. Because the majority does not reach this question, I address it only briefly and conclude that this exemption does not protect the documents.2
A
As a threshold matter, the commission asserts that the exemption in
To determine the scope of the privacy interest protected by this exemption, we historically have looked to the invasion of privacy tort in § 652D of the Restatement (Second) of Torts. 3 Restatement (Second), Torts § 652D (1977). In Perkins v. Freedom of Information Commission, supra, 228 Conn. 175, this court explored in detail the contours of the personal privacy exemption in
The Restatement (Second) provides that an action for invasion of personal privacy is personal to the individual, and thus can only be maintained by a living person. Section 652I of the Restatement (Second) of Torts provides in relevant part that ‘‘an action for invasion of privacy can be maintained only by a living individual whose privacy is invaded.’’ The commentary further explains that ‘‘[t]he right protected by the action for invasion of privacy is a personal right, peculiar to the individual whose privacy is invaded’’; id., comment (a), p. 403; and, as such, ‘‘[i]n the absence of statute, the action for the invasion of privacy cannot be maintained after the death of the individual . . . .’’ id., comment (b), p. 403. This principle is consistent with our law of torts and we have no statute that reverses the common-law rule that actions for personal torts do not survive
a plaintiff’s death. Although we have a statute that permits a personal representative to maintain some types of actions after death;
Applying the principles of the Restatement (Second) to the present case, the personal privacy exemption does not protect the documents at issue. The parties agree that the subject of the records, Gilligan, died more than fifty years ago, in 1962. Even if one were to assume that the exemption extends to the privacy interests of family members, there is no suggestion, assertion or proof of any surviving family members—Gilligan had only one child, who died in 1968. Because it is undisputed that Gilligan is deceased, and there is no evidence in the record that another living person is at risk of having his or her privacy invaded by a release of the documents at issue, this exemption should not apply.
B
Assuming for the sake of argument that the exemption could protect some privacy interests of a decedent, I am still persuaded that release of the documents at issue would not constitute an invasion of privacy within the meaning of the exemption.
In Perkins, we adopted a two part test for determining whether release of records would invade an individual’s privacy. After examining the standard and accompanying commentary of § 652D of the Restatement (Second) of Torts for the tort of invasion of privacy, the court in Perkins concluded that the exemption ‘‘precludes disclosure . . . only when [1] the information sought by a request does not pertain to legitimate matters of public concern and [2] is highly offensive to a reasonable person.’’ Perkins v. Freedom of Information Commission, supra, 228 Conn. 175. The department has not shown that either element applies here.
Turning to the first part of the test, I am persuaded that the department has not met its burden to show a lack of a legitimate public interest. The commission found, as a matter of fact, that legitimate public interest remains concerning Gilligan, her crimes, and her nearly four decade confinement at the hospital. The
to publish books and newspaper articles about her. See, e.g., M. Phelps, supra; M. Bovsun, ‘‘True Crime Story Behind Classic Comedy ‘Arsenic & Old Lace,’ ’’ N.Y. Daily News, January 16, 2010, available at http://www.nydailynews.com/news/crime/true-crime-story-behind-classic-comedy-arsenic-old-lace-article-1.462904 (last visited September 2, 2015); B. Ryan, ‘‘Whatever Went Wrong With Amy?,’’ N.Y. Times, March 2, 1997, p. CN1. The records sought in the present case pertain to Gilligan’s commitment at the hospital and provide significant information about how the state historically has treated its mentally ill criminals. Even though a substantial amount of time has passed since Gilligan’s crimes in the early 1900s and her death in 1962, that does not alone eliminate the legitimacy of the public’s interest, especially in light of the continued attention her case has received from historians and authors. See 3 Restatement (Second), supra, § 652D, comment (k), p. 393 (‘‘[p]ast events and activities may still be of legitimate interest to the public, and a narrative reviving recollection of what has happened even many years ago may be both interesting and valuable for purposes of information and education’’). Nor does Gilligan’s status as an involuntary public figure defeat a finding of a legitimate public interest concerning otherwise private affairs. See id., comment (f), p. 389 (‘‘[t]hose who commit crime or are accused of it may not only not seek publicity but may make every possible effort to avoid it, but they are nevertheless persons of public interest, concerning whom the public is entitled to be informed’’). The commission’s finding of an enduring and legitimate public interest in the case of a notorious serial killer and the state’s confinement of, and care for, her after her conviction is reasonable and not contrary to law, and, therefore, must be sustained. See Perkins v. Freedom of Information Commission, supra, 228 Conn. 164–65 (‘‘[t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion’’ [emphasis omitted; internal quotation marks omitted]).
Moreover, the department has not proven that the release of Gilligan’s records would be highly offensive to a reasonable person. Gilligan is long deceased. Even assuming, arguendo, that death does not extinguish the decedent’s privacy rights, it certainly must diminish them. And when, as here, the records pertain to a public figure, it is permissible to publicize otherwise private matters that one could not publicize about a nonpublic figure. See 3 Restatement (Second), supra, § 652D, comment (h), p. 391 (‘‘the life history of one accused of murder, together with such heretofore private facts as may throw some light upon what kind of person he is, his possible guilt or innocence, or his reasons for committing the crime, are a matter
Portability and Accountability Act (HIPAA),
Accordingly, I concur in part and dissent in part.