Summary
applying privilege to records of patient who had died decades before request was filed pursuant to FOIA
Summary of this case from Comm'r of Mental Health & Addiction Servs. v. Freedom of Info. Comm'nOpinion
No. 19371.
09-22-2015
FREEDOM OF INFORMATION OFFICER, Department of Mental Health and Addiction Services, et al. v. FREEDOM OF INFORMATION COMMISSION et al.
Valicia Dee Harmon, commission counsel, with whom, on the brief, was Colleen M. Murphy, executive director and general counsel, for the appellant-appellee (named defendant). Jacqueline Hoell, assistant attorney general, with whom were Henry A. Salton, assistant attorney general, and, on the brief, George Jepsen, attorney general, for the appellees-appellants (plaintiffs).
Valicia Dee Harmon, commission counsel, with whom, on the brief, was Colleen M. Murphy, executive director and general counsel, for the appellant-appellee (named defendant).
Jacqueline Hoell, assistant attorney general, with whom were Henry A. Salton, assistant attorney general, and, on the brief, George Jepsen, attorney general, for the appellees-appellants (plaintiffs).
ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.
Opinion
EVELEIGH, J.The present case arises from the ruling of the named defendant, the Freedom of Information Commission (commission), that the defendant Ron Robillard was entitled to the disclosure of documents in the possession of the plaintiffs, the Department of Mental Health and Addiction Services (department) and its Freedom of Information Officer (information officer), under the Freedom of Information Act (act), General Statutes § 1–200 et seq. The commission appeals from the judgment of the trial court, claiming, inter alia, that the plaintiffs lacked standing to appeal to the trial court from the commission's decision. The plaintiffs cross appealed from the judgment of the trial court, claiming, inter alia, that the trial court improperly rejected the plaintiffs' claim that the documents were medical records related to the diagnosis and treatment of a patient and were, thus, psychiatric records exempt from disclosure pursuant to General Statutes § 52–146e. We conclude that the plaintiffs had standing to appeal the decision of the commission, and further agree with the plaintiffs that the documents at issue are exempt from disclosure under § 52–146e. Accordingly, we reverse the judgment of the trial court and remand the case to that court with direction to sustain the plaintiffs' appeal.
The following facts and procedural history are relevant to the present appeal. The plaintiffs received a request under the act from Robillard for any records concerning a person named Amy Archer Gilligan for the period of time from 1924 through 1962. Gilligan was a patient at a facility now known as Connecticut Valley Hospital (hospital) following her conviction for second degree murder for the arsenic poisoning of a resident of her nursing home. Gilligan's life is widely considered to be the basis for the play and movie entitled “Arsenic and Old Lace.” The plaintiffs provided Robillard with copies of those records pertaining to Gilligan that it deemed were disclosable under the act. Robillard was notified by the plaintiffs that other records, deemed exempt from disclosure under the act, were withheld.
Robillard then filed a complaint with the commission alleging that the plaintiffs violated the act by failing to provide these records concerning the confinement of Gilligan. After a full hearing and an in camera inspection of the records before a hearing officer of the commission, the commission adopted the proposed findings and decision of the hearing officer. In its memorandum of decision, the hearing commission found that some of the records submitted for in camera review were exempt from disclosure as psychiatric records under § 52–146e. The commission found that two documents submitted for in camera inspection were exempt from disclosure under General Statutes § 1–210(b)(10) as “communications privileged by the attorney-client relationship....” The commission found that the rest of the records submitted for in camera review did not qualify as psychiatric records or attorney client communications, but were “on their face medical records....” The commission found that the medical records were not exempt from disclosure under the federal Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. § 1320d et seq. The commission further found that the medical records were not exempt from disclosure under the act because Gilligan is deceased and, therefore, there can be no invasion of privacy under § 1–210(b)(2).
The plaintiffs then filed an administrative appeal pursuant to General Statutes § 4–183 of the Uniform Administrative Procedure Act (UAPA). On appeal to the trial court, the plaintiffs made the following claims: “(1) The [commission] erroneously applied Connecticut's psychiatric-patient privilege by allowing disclosure of certain of the documents requested by Robillard, (2) the [commission] erroneously applied the § 1–210(b)(2) exemption from disclosure under the [act], and (3) the [commission] erroneously interpreted the department's claimed exemption under HIPAA.” The trial court found that the commission properly applied § 52–146e, with the exception of two documents that the court ordered partially redacted as to diagnosis. The trial court further found that the commission properly applied § 1–210(b)(2), but found that the plaintiffs had met their burden under § 1–210(b)(2) as to the physical and dental examination records contained in the documents, finding that they were not a legitimate matter of public concern and would be highly offensive if disclosed. Accordingly, the trial court sustained the plaintiffs' appeal as to those physical and dental examination records. The commission appealed and the plaintiffs cross appealed from that judgment to the Appellate Court, and we transferred those appeals to this court pursuant to General Statutes § 51–199(c) and Practice Book § 65–2.On appeal to this court, the commission claims that the plaintiffs lacked standing to appeal to the trial court from the commission's decision that Gilligan's medical records were not exempt from disclosure. In the cross appeal, the plaintiffs claim that the trial court improperly concluded that all of the records at issue were not exempt from disclosure under § 52–146e. We conclude that the plaintiffs had standing to appeal to the trial court from the commission's decision and that the trial court improperly concluded that all of the records at issue were not exempt from disclosure under § 52–146e.
In its appeal, the commission also asserts that the trial court improperly: (1) substituted its own judgment for that of the commission when it determined that disclosure of the records related to Gilligan's physical and dental examinations would constitute an invasion of privacy under § 1–210(b)(2) ; (2) found that records related to Gilligan's physical and dental examinations were exempt from disclosure under § 1–210(b)(2) when Gilligan was an infamous arsenic murderess; (3) found that under § 1–210(b)(2) disclosure of the records related to Gilligan's physical and dental examinations would be highly offensive to a reasonable person when Gilligan has been deceased since 1962 and is not survived by any relative; (4) found that records related to Gilligan's physical and dental examinations were exempt from disclosure under § 1–210(b)(2) when Gilligan's privacy rights terminated upon her death; (5) found that records related to Gilligan's physical and dental examinations were exempt from disclosure under § 1–210(b)(2) as protecting the privacy rights of Gilligan's living relatives when Connecticut has yet to recognize survivor privacy right and, alternatively, even if such rights were recognized, they would not be applicable here because there is no evidence that Gilligan is survived by a relative and the records at issue do not involve gruesome images of her death. The plaintiffs also assert in their cross appeal that the trial court improperly concluded that some of Gilligan's medical records were not exempt from disclosure under § 1–210(b)(2). Because we conclude that all of Gilligan's medical records are exempt from disclosure under § 52–146e, we need not reach these other claims.
I
The commission asserts that the plaintiffs lacked standing to appeal to the trial court from the commission's decision that Gilligan's medical records were not exempt from disclosure. Specifically, the commission asserts that the plaintiffs are not aggrieved because their personal privacy interest was not affected by its decision. Further, the commission claims that the plaintiffs lack standing because they cannot assert the privacy interests of their deceased client. In response, the plaintiffs assert that they had standing to appeal from the commission's decision that Gilligan's medical records were not exempt from disclosure under § 1–210(b)(2) because they were aggrieved by the decision of the commission. We agree with the plaintiffs.
It is not entirely clear from the commission's brief whether it challenges the plaintiffs' standing to appeal under both §§ 1–210(b)(2) and 52–146e. To the extent that the commission challenges the plaintiffs' standing under both statutes and because standing is a jurisdictional question, we address the commission's claim as a threshold issue. The concurring and dissenting opinion asserts that “I do not understand why the majority has analyzed the department's standing in its opinion.... Nevertheless, I agree with the majority's conclusion that the department has standing to raise this exemption.” See footnote 2 of the concurring and dissenting opinion. The concurring and dissenting opinion further asserts that “the commission concedes that the department has standing to raise” the psychiatric records privilege. Id. We disagree. From our review of the parties' briefs, we do not conclude that the commission concedes that the department has standing in this appeal. Accordingly, out of an abundance of caution, we address the standing issue.
“As a preliminary matter, we address the appropriate standard of review. If a party is found to lack [aggrievement], the court is without subject matter jurisdiction to determine the cause.... A determination regarding a trial court's subject matter jurisdiction is a question of law. When ... the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record....
“Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it.... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction.... The objection of want of jurisdiction may be made at any time ... [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention.... The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 802, 925 A.2d 292 (2007).
“Only parties aggrieved by the decision of the [commission] have standing to take appeals to the Superior Court. General Statutes § 1–21i(d). Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.... These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of [a] direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy ... provides the requisite assurance of concrete adverseness and diligent advocacy.
“As long as there is some direct injury for which the plaintiff seeks redress, the injury that is alleged need not be great ... [and] need not be primarily economic....
“In appeals pursuant to § 1–21i(d), we have translated these general principles into a twofold test for aggrievement that requires a showing of: (1) a specific personal and legal interest in the subject matter of the [commission] decision; and (2) a special and injurious effect on this specific interest.” (Citations omitted; footnote omitted; internal quotation marks omitted.) Board of Pardons v. Freedom of Information Commission, 210 Conn. 646, 648–49, 556 A.2d 1020 (1989).
Although the commission does not expressly address why the plaintiffs are not aggrieved, it seems to assert that because they are merely the holder of the public records at issue here, they are not affected by any disclosure and are not the appropriate parties to provide evidence as to why disclosure would constitute an invasion of privacy. In response, the plaintiffs assert that they are aggrieved by the commission's decision because they have a legally protected interest that has been, and will in the future be, adversely affected by the commission's decision. Specifically, the plaintiffs assert that the department is statutorily charged with providing comprehensive, client based services in the areas of mental health and substance abuse treatment to people in the state, including many people who have been found not guilty of crimes but are in need of psychiatric care and others who may be characterized as notorious. The plaintiffs further assert that the department's interest in providing such care is adversely affected by the commission's determination that medical records of patients in their facilities can be subject to disclosure under the act because it might adversely affect patients' willingness to provide information regarding their medical history and status if such information is subject to disclosure.In support of their position, the plaintiffs rely on Board of Pardons v. Freedom of Information Commission, supra, 210 Conn. at 646, 556 A.2d 1020. In Board of Pardons, the commission had issued a decision finding that the Board of Pardons (board) had improperly gone into executive session to discuss records of prisoners. The board appealed the decision to the trial court and then to the Appellate Court. The Appellate Court concluded that the board did not have standing to appeal from the decision of the commission because it was not aggrieved. See id., at 648, 556 A.2d 1020. This court reversed the judgment of the Appellate Court, concluding that “the board has a legitimate institutional interest in the integrity of its decision-making process. The board has advanced a colorable claim of injury to its own deliberative functions that transcends the interests of individual prisoners in the disclosure of their records. In deciding whether to grant a pardon or to commute a prison sentence, the board depends not simply on objective [fact-finding], but also on purely subjective evaluations and on predictions of future behavior.... In order to carry out this sensitive mission, the board claims that it needs the opportunity for confidential dialogue about every aspect of a prisoner's record. The board alleges that, as a practical matter, there is a great deal of overlap between the discussion of the records of individual prisoners, which the [commission] has ordered to be held in public, and the discussion of third party information, which even the [commission] has permitted to be conducted in executive session. The bifurcated procedure that the [commission] order mandates therefore gave rise to a colorable claim of injury to a central aspect of the board's functions.” (Citation omitted; internal quotation marks omitted.) Id., at 650–51, 556 A.2d 1020. This court further concluded that the commission's decision “would undoubtedly have ... a chilling effect on the [board] the next time it contemplated ... an executive session in order to decide whether to grant a petition for a pardon.” (Internal quotation marks omitted.) Id., at 651, 556 A.2d 1020. Similarly, we conclude that the plaintiffs have made a colorable claim that the commission's decision in the present case would have a chilling effect on its statutorily mandated role of providing mental health and addiction services to patients in the state of Connecticut.
In Board of Pardons, this court also relied on the fact that the potential for criminal liability or civil incarceration was sufficient to confer standing. “Because the [act] makes noncompliance with [a commission] order a class B misdemeanor; General Statutes § 1–21k(b) ; the individual members of the board have a ‘specific and personal’ interest in the validity of such an order. In the future, board members face the risk of injury, in the form of criminal prosecution and sanctions, if they fail to comply with the present [commission] order. Such a risk of prosecution establishes the requisite ‘specific and personal interest’ of the members of the board and of the board itself as their representative.” (Foot-note omitted.) Board of Pardons v. Freedom of Information Commission, supra, 210 Conn. at 650, 556 A.2d 1020. In the present case, based on the commission's ruling, employees of the department may face criminal liability or civil incarceration in the future if they do not disclose records. Such potential is sufficient to present a colorable claim of direct injury.Moreover, the plaintiffs are subject to General Statutes § 52–146j, which provides a cause of action for improper disclosure of psychiatric records. The potential for a civil action and penalties for improper disclosure of such actions is further evidence that the plaintiffs have a colorable claim of direct injury related to the commission's decision.
In the present case, it is unclear whether the commission asserts that the information officer of the department also lacks standing to appeal from the decision of the commission. As the individual tasked with making sure that the department complies with the act, the information officer faces risk of prosecution for failure to follow an order of the commission. Therefore, to the extent that the commission asserts that the information officer does not have standing to appeal from its decision, we conclude that “[s]uch a risk of prosecution establishes the requisite specific and personal interest....” (Internal quotation marks omitted.) Board of Pardons v. Freedom of Information Commission, supra, 210 Conn. at 650, 556 A.2d 1020.
General Statutes § 52–146j provides: “(a) Any person aggrieved by a violation of sections 52–146d to 52–146j, inclusive, may petition the superior court for the judicial district in which he resides, or, in the case of a nonresident of the state, the superior court for the judicial district of Hartford, for appropriate relief, including temporary and permanent injunctions, and the petition shall be privileged with respect to assignment for trial.
“(b) Any person aggrieved by a violation of sections 52–146d to 52–146j, inclusive, may prove a cause of action for civil damages.”
In support of its claim, the commission cites to Chairman, Board of Education v. Freedom of Information Commission, 60 Conn.App. 584, 760 A.2d 534 (2000) (disclosure of employee's personnel or medical files), Superintendent of Police v. Freedom of Information Commission, 222 Conn. 621, 629–30, 609 A.2d 998 (1992) (disclosure of pistol permits), and West Hartford v. Freedom of Information Commission, 218 Conn. 256, 264–65, 588 A.2d 1368 (1991) (disclosure of addresses of retired employees). We find these cases to be inapposite to the present case.
Accordingly, we conclude that the plaintiffs had standing to appeal from the decision of the commission.
II
In their cross appeal, the plaintiffs assert that the trial court improperly affirmed the decision of the commission finding that some of the records at issue were not exempt from disclosure under § 52–146e. Specifically, the plaintiffs assert that the commission and the trial court improperly divided the records at issue between documents that were related to psychiatric care and those that were medical records. The plaintiffs assert that such a division was improper because all of the documents at issue were created during care for a patient at an inpatient mental health facility, and that medical diagnosis and treatment are part of psychiatric treatment and diagnosis at an inpatient mental health facility. In response, the commission asserts that the commission and the trial court properly determined that the medical and dental records are not exempt from disclosure under § 52–146e because they are not privileged communications and records as defined by General Statutes § 52–146d(2). We agree with the plaintiffs and, accordingly, reverse the judgment of the trial court to the extent that it determined that the medical records were not exempt from disclosure under § 52–146e.
General Statutes § 52–146e provides: “(a) All communications and records as defined in section 52–146d shall be confidential and shall be subject to the provisions of sections 52–146d to 52–146j, inclusive. Except as provided in sections 52–146f to 52–146i, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.
“(b) Any consent given to waive the confidentiality shall specify to what person or agency the information is to be disclosed and to what use it will be put. Each patient shall be informed that his refusal to grant consent will not jeopardize his right to obtain present or future treatment except where disclosure of the communications and records is necessary for the treatment.
“(c) The patient or his authorized representative may withdraw any consent given under the provisions of this section at any time in a writing addressed to the person or office in which the original consent was filed. Withdrawal of consent shall not affect communications or records disclosed prior to notice of the withdrawal.”
General Statutes § 52–146d provides in relevant part: “(2) ‘Communications and records' means all oral and written communications and records thereof relating to diagnosis or treatment of a patient's mental condition 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, wherever made, including communications and records which occur in or are prepared at a mental health facility....”
“This court reviews the trial court's judgment pursuant to the ... UAPA.... Under the UAPA, it is [not] the function ... of this court to retry the case or to substitute its judgment for that of the administrative agency.... Even for conclusions of law, [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 if its discretion.... [Thus] [c]onclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.... [Similarly], this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes.... Cases that present pure questions of law, however, invoke a broader standard of review than is ... involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.... Furthermore, when a state agency's determination of a question of law has not previously been subject to judicial scrutiny ... the agency is not entitled to special deference.... We have determined, therefore, that the traditional deference accorded to an agency's interpretation of a statutory term is unwarranted when the construction of a statute ... has not previously been subjected to judicial scrutiny [or to] ... a governmental agency's time-tested interpretation....” (Citation omitted; internal quotation marks omitted.) Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, 310 Conn. 276, 281–82, 77 A.3d 121 (2013). Even if time-tested, we will defer to an agency's interpretation of a statute only if it is “reasonable”; that reasonableness is determined by “[application of] our established rules of statutory construction.” (Internal quotation marks omitted.) Dept. of Public Safety v. State Board of Labor Relations, 296 Conn. 594, 599, 996 A.2d 729 (2010).
“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be consid ered.... The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter....” (Internal quotation marks omitted.) Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, supra, 310 Conn. at 283, 77 A.3d 121. The issue of statutory interpretation presented in this case is a question of law subject to plenary review. See id., at 282–83, 77 A.3d 121.
We begin with the text of the statute. Section 52–146e (a) provides as follows: “All communications and records as defined in section 52–146d shall be confidential and shall be subject to the provisions of sections 52–146d to 52–146j, inclusive. Except as provided in sections 52–146f to 52–146i, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.” The plain language of § 52–146e exempts all such “communications and records” from disclosure.
Therefore, we must consider whether medical and dental records are “communications and records” for the purposes of § 52–146e. Section 52–146d(2) defines “ ‘[c]ommunications and records' ” as “all oral and written communications and records thereof relating to diagnosis or treatment of a patient's mental condition 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, wherever made, including communications and records which occur in or are prepared at a mental health facility....”
In the present case, the crux of the disagreement between the commission and the plaintiffs is whether medical and dental records contained within Gilligan's file are exempt from disclosure under § 52–146e. The commission asserts, and the trial court agreed, that these documents were not exempt from disclosure because they were not “oral and written communications and records thereof relating to diagnosis or treatment of a patient's mental condition between the patient and a psychiatrist, or between a member of the patient's family and a psychiatrist....” General Statutes § 52–146d(2). We agree that the medical and dental records are not communications directly between Gilligan and a psychiatrist or between a member of Gilligan's family and a psychiatrist.
Nevertheless, the definition of “ ‘[c]ommunications and records' ” in § 52–146d(2) does not stop there. Section 52–146d(2) further defines “ ‘[c]ommunications and records' ” to include “all oral and written communications and records thereof relating to diagnosis or treatment of a patient's mental condition ... 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, wherever made, including communications and records which occur in or are prepared at a mental health facility....”In interpreting this statute, we do not write on a clean slate. “As we have previously observed, [t]he people of this state enjoy a broad privilege in the confidentiality of their psychiatric communications and records ... and the principal purpose of that privilege is to give the patient an incentive to make full disclosure to a physician in order to obtain effective treatment free from the embarrassment and invasion of privacy which could result from a doctor's testimony.... Accordingly, the exceptions to the general rule of nondisclosure of communications between psychiatrist and patient were drafted narrowly to ensure that the confidentiality of such communications would be protected unless important countervailing considerations required their disclosure....
“Although we are cognizant that [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 ... we are equally convinced that the protection of communications that identify a patient are central to the purpose of the statute. The language of the statute supports this conclusion. Section 52–146e(a) specifically prohibits the disclosure or transmission of any communications or records that would identify a patient.... Section 52–146d provides that the phrase identify a patient refer[s] to communications and records which contain (A) names or other descriptive data from which a person acquainted with the patient might reasonably recognize the patient as the person referred to, or (B) codes or numbers which are in general use outside of the mental health facility which prepared the communications and records.... Further, the fact that an explicit exception contained in subdivision (3) of [General Statutes] § 52–146f permits the disclosure of a patient's name, address and ... [t]hat the person was in fact a patient for purposes of collection disputes between the hospital and the patient, lends weight to our conclusion that the general rule against disclosure applies with equal force to identity as to other information.” (Citations omitted; internal quotation marks omitted.) Falco v. Institute of Living, 254 Conn. 321, 328–29, 757 A.2d 571 (2000).
In State v. Jenkins, 73 Conn.App. 150, 162, 807 A.2d 485 (2002), rev'd in part on other grounds, 271 Conn. 165, 856 A.2d 383 (2004), the Appellate Court considered whether a nursing assessment is a mental health record as defined in § 52–146d. The Appellate Court recognized that “[t]he purpose of the privilege is ‘to protect a therapeutic relationship. The statute provides a privilege for confidential communications so that a patient may safely disclose to his therapist personal information that is necessary for effective treatment or diagnosis.’ Bieluch v. Bieluch, 190 Conn. 813, 819, 462 A.2d 1060 (1983)....” (Citation omitted.) State v. Jenkins, supra, at 162, 807 A.2d 485.
The Appellate Court concluded that the nursing assessment is a mental health record as defined in § 52–146d, relying on the document itself that indicated that the defendant authorized diagnosis and treatment of a mental condition and testimony from the director of the facility that the nursing assessment was conducted under the supervision of a psychiatrist, and that all the information, even the biographical data, is used to “gather information about mental health issues....” (Internal quotation marks omitted.) Id.
Similar to the evidence in Jenkins, at the hearing before the commission, Thomas Pisano, a psychiatrist, testified that the medical and dental records at issue were created at the hospital during Gilligan's inpatient treatment. Pisano further testified that the records were created under the direction of a psychiatrist. Pisano also testified that the superintendent of the facility at the time Gilligan was a patient was a psychiatrist. The foregoing examination of the plain language of §§ 52–146d and 52–146e and prior interpretations support the conclusion that the medical and dental records of Gilligan are exempt from disclosure under § 52–146e.
The interpretation of §§ 52–146d and 52–146e proffered in the concurring and dissenting opinion is contrary to this court's well established interpretation of this statute. The interpretation unnecessarily restricts the protections afforded to psychiatric records of individuals who seek mental health treatment in this state in favor of “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)....” (Citations omitted.) The concurring and dissenting opinion fails to acknowledge, however, that its very strict interpretation of §§ 52–146d and 52–146e, which is completely unsupported by any case law, serves to threaten the “broad privilege in the confidentiality of their psychiatric communications and records” that the citizens of this state have long enjoyed in all circumstances, not just those involving requests under the act. (Internal quotation marks omitted.) Falco v. Institute of Living, supra, 254 Conn. at 328, 757 A.2d 571. Indeed, the interpretation posed in the concurring and dissenting opinion in the present case would serve to discourage individuals from seeking mental health treatment for fear that information contained in records prepared by mental health and other medical providers would not remain confidential, but could be disclosed without the patient's consent. We refuse to interpret the psychiatrist-patient privilege in such a manner so as to thwart mental health treatment in this state at a time when society is seeing the ever increasing need for individuals to seek out and receive mental health treatment.
This court has repeatedly recognized that “[t]he privilege covers not only communications between the patient and psychiatrist, but also all communications relating to the patient's mental condition between the patient's family and the psychiatrist and his staff and employees, as well as records and communications prepared at mental health facilities.” (Internal quotation marks omitted.) State v. Kelly, 208 Conn. 365, 379, 545 A.2d 1048 (1988). “Our statutory scheme prohibits the disclosure of any covered records or communications without the written consent of the patient or his authorized representative.” State v. Jenkins, 271 Conn. 165, 180–81, 856 A.2d 383 (2004).
Contrary to this well established interpretation, and without any citation to authority, the concurring and dissenting opinion would have us remand the case for further findings as to whether the medical and dental records were prepared as part of Gilligan's mental health treatment. A remand in this matter is unnecessary. The plaintiffs have already presented testimony that the records at issue are “the psychiatric and medical records of [the hospital] of ... Gilligan.” The plaintiffs' witness further testified that the records were created under the direction of a psychiatrist, were prepared at the hospital and that the hospital was considered a mental health facility for the treatment and diagnosis of mental illness at the time the communications occurred. Furthermore, as the concurring and dissenting opinion acknowledges, “[i]f the documents themselves demonstrate that the privilege applies, a proponent can meet this burden simply by offering the documents for in camera inspection by the commission's hearing officer....” Not only is such a task nearly impossible for records that were created at a mental health facility approximately fifty to ninety years ago, but such distinctions are inconsistent with the purpose of §§ 52–146d and 52–146e and our interpretation of those statutes. See, e.g., State v. Jenkins, supra, 271 Conn. at 176, 856 A.2d 383 (nursing assessment prepared at mental health facility where patient was being treated covered under § 52–146d ). Moreover, the approach adopted in the concurring and dissenting opinion is inconsistent with other courts that have addressed this issue. See, e.g., Ex parte Western Mental Health Center, 884 So.2d 835, 840 (Ala.2003) ( “[i]t is not disputed that ... medical records, created during the psychiatrist-patient relationship, are included in the confidential relationship and are also privileged” [internal quotation marks omitted] ). Indeed, “[r]ecognizing the rule that hospital and medical records are generally within the physician-patient privilege, [courts in many jurisdictions have] allowed hospitals to assert the privilege on behalf of their patients.” Annot., 10 A.L.R.4th 552, § 4 (1981). In the present case, the plaintiffs have satisfied their burden, through testimony and by virtue of the records themselves, that the documents fall within the protections of §§ 52–146d and 52–146e.
The disclosure at issue is not covered by any of the exceptions in § 52–146f. “It is just as clear that no exception is available beyond those contained in § 52–146f.... With respect to § 52–146e, we have noted that the legislature has narrowly drafted the exceptions to the general rule against disclosure after carefully balancing the important countervailing considerations.” (Citation omitted.) Falco v. Institute of Living, supra, 254 Conn. at 330, 757 A.2d 571.
Moreover, the concurring and dissenting opinion completely ignores the fact that many of the records that it finds to be subject to disclosure identify the patient and include the patient's diagnosis. As stated previously in this opinion, in discussing the disclosure of identifying information contained within records of a mental health facility, this court has reasoned as follows: “Although we are cognizant that [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 ... we are equally convinced that the protection of communications that identify a patient are central to the purpose of the statute. The language of the statute supports this conclusion. Section 52–146e(a) specifically prohibits the disclosure or transmission of any communications or records that would identify a patient.... Section 52–146d provides that the phrase identify a patient refer[s] to communications and records which contain (A) names or other descriptive data from which a person acquainted with the patient might reasonably recognize the patient as the person referred to, or (B) codes or numbers which are in general use outside of the mental health facility which prepared the communications and records.... Further, the fact that an explicit exception contained in subdivision (3) of § 52–146f permits the disclosure of a patient's name, address and ... [t]hat the person was in fact a patient for purposes of collection disputes between the hospital and the patient, lends weight to our conclusion that the general rule against disclosure applies with equal force to identity as to other information.” (Internal quotation marks omitted.) Id., at 328–29, 757 A.2d 571.
“We also disagree ... that identifying information is of lesser importance within the statutory scheme than other communications and records. The confidentiality of a patient's identity is as essential to the statutory purpose of preserving the therapeutic relationship as the confidentiality of any other information in a patient's communications and records. The statute recognizes the unfortunate reality that a stigma may attach to one who seeks psychiatric care, and that revealing a patient's identity may subject him or her to embarrassment, harassment or discrimination.” Id., at 329, 757 A.2d 571.
We are bound to apply this court's interpretation of §§ 52–146d and 52–146e in Falco v. Institute of Living, supra, 254 Conn. at 329, 757 A.2d 571, which prohibits the disclosure of any documents from which a patient can be identified. None of the parties have asked us to overrule or modify our decision in that case. Furthermore, in the fifteen years since Falco, the legislature has not acted to amend §§ 52–146d and 52–146e in response to this court's interpretation. “Although we are aware that legislative inaction is not necessarily legislative affirmation ... we also presume that the legislature is aware of [this court's] interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation.” (Internal quotation marks omitted.) Caciopoli v. Lebowitz, 309 Conn. 62, 78, 68 A.3d 1150 (2013). By choosing not to legislatively overrule Falco, the legislature has acquiesced to this court's interpretation of §§ 52–146d and 52–146e. Indeed, one of the indicators of legislative acquiescence to our interpretation of a statute is the passage of “an appropriate interval [of time] to permit legislative reconsideration ... without corrective legislative action....” Hummel v. Marten Transport, Ltd., 282 Conn. 477, 494–95, 923 A.2d 657 (2007).
The concurring and dissenting opinion relies on State v. Montgomery, 254 Conn. 694, 759 A.2d 995 (2000). In Montgomery, Elaine Janas, a mental health assistant at Cedarcrest Hospital, testified at a criminal trial regarding a telephone conversation she overheard between the defendant and a third party unconnected to the facility, while the defendant was a patient at the mental health facility in which she worked. Id., at 722–23, 759 A.2d 995. The defendant appealed claiming that “because Janas was assigned by a psychiatrist to observe him and to record his behavior, anything that the defendant said within her earshot necessarily related to his diagnosis and treatment.” Id., at 723, 759 A.2d 995. This court rejected the defendant's claim and concluded that the trial court properly allowed Janas to testify “in the presence of the jury regarding the defendant's statement.” Id. This court reasoned as follows: “As the trial court concluded, the communication at issue was not between the defendant and a psychiatrist or Janas, but, rather, between the defendant and an unknown third party located outside of the hospital. Moreover, the defendant's instruction to that third party not to ‘forget [he] was with [the third party] last night’ bore no relation to the defendant's diagnosis or treatment. The mere fact that Janas was assigned to observe the defendant for his own protection does not transform the defendant's statement into a protected communication under the psychiatrist-patient privilege. A contrary determination would extend that privilege well beyond the plain statutory language that defines it. Accordingly, we reject the defendant's claim that the trial court improperly permitted the state to elicit Janas' testimony regarding the defendant's statement.” Id., at 725, 759 A.2d 995.
A review of the opinion and the briefs in Montgomery demonstrates that the defendant never claimed that Janas' testimony violated §§ 52–146d and 52–146e because it revealed the defendant's identity as an individual who received treatment at the mental health facility. Indeed, although Montgomery was decided approximately two months after Falco, the court did not address Falco in Montgomery. The absence of such a reference indicates that this court did not consider Montgomery to raise an issue regarding disclosure of identifying information. We conclude that Montgomery is inapposite to the present case because it involved a communication by the patient to a third party, which is not an issue in the present case.
Moreover, the concurring and dissenting opinion misstates the factual and procedural background of Montgomery. Specifically, the concurring and dissenting opinion explains as follows: “[Janas] was permitted to testify about patient conversations that she overheard even though her testimony identified the defendant as a psychiatric inpatient.... [Janas] 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 take notes of his activities every fifteen minutes; and that such protocol was typical for suicidal patients.... The trial court allowed her testimony and she repeated much of this same information to the jury.” (Citations omitted; emphasis added.) This is inaccurate. In Montgomery, this court explained as follows: “The defendant filed a motion in limine to preclude [Janas'] testimony.... The trial court conducted a hearing on the defendant's motion outside the presence of the jury. At the hearing, Janas testified that, pursuant to a psychiatrist's instructions, she was assigned to monitor the defendant on a ‘one-to-one’ basis on ... the day after the homicide. Pursuant to those instructions, Janas was to remain within ‘arm's length’ of the defendant at all times and to take notes regarding the defendant's activities every fifteen minutes. Janas further testified that ‘one-to-one’ supervision is ordered for a patient's protection, usually when that patient is suicidal.” (Emphasis added.) State v. Montgomery, supra, 254 Conn. at 722–23, 759 A.2d 995. In contrast, when describing Janas' trial testimony, this court only stated: “Janas ... testified in the presence of the jury regarding the defendant's statement.” (Emphasis added.) Id., at 723, 759 A.2d 995. Therefore, unlike the representation in the concurring and dissenting opinion, nothing in this court's opinion in Montgomery explains to what extent, if any, Janas' testimony revealed the identity of the defendant in that case as a psychiatric inpatient. Accordingly, we are not persuaded that Montgomery is relevant to our analysis in the present case.
The concurring and dissenting opinion asserts that certain administrative documents should not be exempt from disclosure. We disagree. There are approximately four letters from the superintendent of the facility to Gilligan's daughter, which contain identifying information and responses to questions about her treatment. There is one letter from the superintendent to Metropolitan Life Insurance that details Gilligan's diagnosis, psychiatric treatment and mental state. We conclude that these correspondence are covered under §§ 52–146d and 52–146e because they contain identifying information and information related to Gilligan's diagnosis. See Falco v. Institute of Living, supra, 254 Conn. at 322–23, 757 A.2d 571 (concluding that facility was not required to release “name, last known address and social security number” of former patient). The concurring and dissenting opinion asserts that the fact that Gilligan's commitment to the hospital is a matter of public record and that the department has already released numerous records indicating her commitment to the hospital are reason to disclose additional documents that identify her. We disagree. The issue before us is only whether these particular documents should be disclosed. We have not been asked to indicate whether the department's prior disclosures were proper and those disclosures are not, therefore, part of the present appeal. Consequently, we do not address those prior disclosures. We also conclude that interpreting the psychiatrist-patient privilege in light of what the public may or may not know about the person or his or her medical history is a dangerous proposition not authorized by statute. As this court stated in Falco, “it is contrary to the language of the statute and the intent of the legislature for courts to make discretionary case-by-case determinations of when the privilege may be overridden.” Id., at 331, 757 A.2d 571. This is precisely what the concurring and dissenting opinion is suggesting we should do in the present case. Thus, while the concurring and dissenting opinion may choose to criticize our approach as “heavy-handed” and “yield [ing] the detritus of a needless collision between two competing statutory mandates,” which is “at odds with § 52–146e ” and an “overbroad interpretation of the privilege,” we are merely applying our established case law.
The concurring and dissenting opinion further asserts that Pisano testified that “certain documents were not psychiatric records, including the correspondence with Gilligan's daughter.” (Emphasis omitted.) We disagree with this representation of the testimony. Pisano cataloged the documents in the file, but never offered an opinion as to whether all of the documents were or were not psychiatric records. The testimony was as follows:
“[Assistant Attorney General]: ... [W]hen you reviewed the records, did you find any records that were not specifically psychiatric in nature?
“[Pisano]: Well, as stated, there was the newspaper clippings. There was the correspondence between the warden at the Connecticut State Prison in Wethersfield and the superintendent at [the hospital]. There was—
* * *
“The Hearing Officer: The ... original question was, as I heard it, were there records that were not psychiatric records?
* * *
“[Pisano]: Okay. And there was ... the correspondence by the state's attorney. There was the news clippings, the Metropolitan Life Insurance. There was correspondence between the superintendent and ... the patient's daughter.”
We disagree with the concurring and dissenting opinion's assertion that the plaintiffs' witness testified that the correspondence between the superintendent and the patient's daughter was not a psychiatric record. Even if the witness had offered his opinion as to whether they were psychiatric records, a determination of whether the records at issue fall within the protection of §§ 52–146d and 52–146e is a legal determination, not a factual one. Moreover, the plaintiffs disclosed many of the documents listed by the witness, including many communications from Metropolitan Life Insurance to the hospital, the correspondence from the state's attorney, the correspondence between the warden and the superintendent, and the newspaper clippings.
The plaintiffs assert that related statutory provisions also support the conclusion that Gilligan's medical and dental records are exempt from disclosure under § 52–146e. Specifically, the plaintiffs assert that General Statutes § 17a–545 supports its position. Section 17a–545 requires inpatient mental health facilities to conduct a physical examination of every patient and to make those reports part of the patient's clinical record. We agree with the plaintiffs that the legislature's decision to require physical examinations of all patients at inpatient mental health facilities supports our conclusion that such physical examinations and the resulting medical record are part of the patient's mental health record and not subject to disclosure. Furthermore, the legislature's decision to require physical examinations of patients at inpatient mental health facilities also indicates that the legislature understood that mental health conditions are often related to physical disorders and that the proper treatment of mental health involves the treatment of physical issues, as well.
General Statutes § 17a–545 provides: “Every patient hospitalized under any of sections 17a–540 to 17a–550, inclusive, shall receive a physical examination within five days of his hospitalization, and at least once each year thereafter. Every patient shall be examined by a psychiatrist within forty-eight hours of his hospitalization, and at least once each six months thereafter. Reports of all physical and psychiatric examinations shall be completed and signed by the examining physicians and made a part of the patient's permanent clinical record.”
Our construction of §§ 52–146d and 52–146e is also consistent with the broad language of the psychiatrist-patient privilege. As “[t]his court previously has explained ... § 52–146e spreads a veil of secrecy over communications and records relating to the diagnosis or treatment of a patient's mental condition. With certain exceptions not pertinent to the present discussion, the statute provides that no person may disclose or transmit any communications and records ... to any person, corporation or governmental agency without the consent of the patient or his authorized representative. [General Statutes § 52–146e(a) ]. The broad sweep of the statute covers not only disclosure to a defendant or his counsel, but also disclosure to a court even for the limited purpose of an in camera examination.” (Internal quotation marks omitted.) State v. Kemah, 289 Conn. 411, 424, 957 A.2d 852 (2008). Accordingly, our understanding of the broad veil of secrecy created by the psychiatrist-patient privilege also supports our conclusion that medical and dental records that are created by an inpatient mental health facility during the treatment of a patient are exempt from disclosure under § 52–146e.
On the basis of the relevant statutory language, related statutory provisions and prior interpretations of the act, we conclude that the trial court improperly affirmed the commission's determination that Gilligan's medical and dental records were not exempt from disclosure under § 52–146e.
The judgment is reversed and the case is remanded to the trial court with direction to sustain the plaintiffs' appeal.
In this opinion ROGERS, C.J., and ZARELLA, ESPINOSA and ROBINSON, Js., concurred.
McDONALD, J., with whom PALMER, J., joins, concurring in part and dissenting in part.
The majority's resolution of this case yields the detritus of a needless collision between two competing statutory mandates. On the one hand, the legislature has adopted an evidentiary privilege to foster and protect the free flow of confidential information between a patient and her psychiatrist in a therapeutic setting. On the other hand, the legislature has endorsed a broad presumption that all records in the possession of a governmental agency are public records, unless delimited by an applicable, specific, and narrow exception. Rather than charting a path that balances and accommodates both of these statutory priorities, the majority construes one to vanquish the other and, in the process, deviates significantly from critical principles at the core of open government. In my opinion, it is unnecessary to do so.
The records at issue in this appeal and cross appeal concern Amy Archer Gilligan, a notorious serial killer who was perhaps America's deadliest murderess. M. Phelps, The Devil's Rooming House: The True Story of America's Deadliest Female Serial Killer (2010). Historians and others have been focused on her case for decades. Her crimes have inspired several books, articles, plays, and even a major motion picture. Authors remain drawn to the facts and circumstances of her crimes to this day. The complainant in the present case, author Ron Robillard, seeks records from the plaintiff Department of Mental Health and Addiction Services (department) relating to Gilligan's thirty-eight year involuntary commitment at the Connecticut State Hospital, now Connecticut Valley Hospital (hospital) following her conviction for murder in the second degree. Robillard seeks the information to shed light on how this state historically has handled its mentally ill convicts.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), General Statutes § 1–200 et seq. Because that act creates a presumption that all records at public institutions shall be open to the public, an agency seeking to shield records from the public eye in the face of a records request must identify a statutory exemption which permits them to be withheld. Under the act's exemptions, the legislature has created numerous privileges 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 General Statutes § 1–210(b)(10) for records protected by the psychiatrist-patient privilege set forth in General Statutes § 52–146e ; and (2) the exemption in § 1–210(b)(2) for personnel, medical, and similar files the release of which would constitute an invasion of personal privacy. Our role is not to revise or expand these statutory exemptions, but to apply faithfully their requirements to the documents before us in light of the long-standing principles governing our application of the act and its exemptions.
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 marks omitted.) 18 H.R. Proc., Pt. 8, 1975 Sess., p. 3911. Since shortly after the act was adopted in 1975; Public Acts 1975, No. 75–342; this court has undertaken to effectuate the legislature's “intention to balance the public's right to know what its agencies are doing, with the governmental and private needs for confidentiality.” Wilson v. Freedom of Information Commission, supra, 181 Conn. at 328, 435 A.2d 353. Indeed, that balancing effort must govern our interpretation and application of the act in circumstances such as those presented in the present case. Id., at 328–29, 435 A.2d 353. 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., at 329, 435 A.2d 353.
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 truth-seeking 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 to the contents of the documents to determine whether they meet the statutory requirements for applying the privilege, the majority recasts them all as medical and dental records and then broadly concludes that all such records created at an inpatient treatment facility are, as a matter of law, psychiatric records. This heavy-handed approach does not recognize that many of the documents are not medical and dental records at all, but are merely administrative records and correspondence having nothing to do with Gilligan's psychiatric treatment. Moreover, the privilege does not protect every document that finds its way into an inpatient's file, nor does it protect every communication made at a treatment facility. Instead, it applies—by the statute's express terms—only to “communications and records thereof relating to diagnosis or treatment of a patient's mental condition .... ” (Emphasis added.) General Statutes § 52–146d (2). The contents of the communications and records dictate whether they are privileged, not the fact that the communications and records happen to reside in a particular patient file. Nevertheless, the majority decides that each and every one of the documents at issue—whether psychiatric, medical, dental, administrative, or otherwise—must be shielded from the public, basing its decision primarily on where the documents were created, with almost no regard for their content. Because I cannot join the majority's analytic framework that revises the reach of the psychiatric-patient privilege beyond the plain language of its enabling statute, I concur in part and dissent in part.
I
PSYCHIATRIC COMMUNICATIONS PRIVILEGE
The psychiatrist-patient privilege is entirely a creature of statute. See General Statutes § 52–146e. Therefore, in order to find protection under the privilege, the communications or records at issue must meet the strict requirements set out in § 52–146d. See, e.g., Bieluch v. Bieluch, 190 Conn. 813, 819, 462 A.2d 1060 (1983). The psychiatrist-patient privilege extends protection only to “communications and records thereof relating to diagnosis or treatment of a patient's mental condition....” General Statutes § 52–146d(2). Furthermore, the communications must be made by and between the patient, her family, her psychiatrist, or someone participating under the supervision of a psychiatrist. General Statutes § 52–146d(2). The statute places no restrictions on where the communications may be made. Because, however, the privilege was created for the limited purpose of protecting the therapeutic relationship between the patient and the psychiatrist, records that are not of communications between protected parties or that do not relate to the diagnosis or treatment of a patient's mental condition do not receive protection under the privilege, even if prepared by or under the direction of a psychiatrist. See Bieluch v. Bieluch, supra, at 818–19, 462 A.2d 1060 (psychiatrist's evaluation of children undertaken to advise parent in custody dispute was not privileged because children were not being treated by psychiatrist); see also State v. Montgomery, supra, 254 Conn. at 725, 759 A.2d 995 (communication between patient and acquaintance not protected, even though made at inpatient psychiatric facility and in presence of someone acting under psychiatrist's direction).
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 themselves demonstrate that the privilege applies, a proponent can meet this burden simply by offering the documents for in camera inspection by the commission's hearing officer (or the court, as the case may require). See, e.g., Lash v. Freedom of Information Commission, 300 Conn. 511, 517–20, 14 A.3d 998 (2011) (in camera review of exhibits at issue established that exhibits were, on their face, privileged, eliminating need for extrinsic evidence). If the documents, standing alone, do not demonstrate that they are privileged, however, the proponent can present testimony from a holder of the records to establish the necessary factual predicate. See, e.g., State v. Jenkins, 73 Conn.App. 150, 162, 807 A.2d 485 (2002) (director of mental health services testified that nursing assessment was made under supervision of psychiatrist and was for purpose of gathering information needed to treat patient's mental condition), rev'd in part on other grounds, 271 Conn. 165, 169, 856 A.2d 383 (2004). Either way, the proponent of the privilege must “provide more than conclusory language, generalized allegations or mere arguments of counsel. Rather, a sufficiently detailed record must reflect the reasons why an exemption applies to the materials requested.” (Internal quotation marks omitted.) Lash v. Freedom of Information Commission, supra, at 517–18, 14 A.3d 998 ; see also Bieluch v. Bieluch, supra, 190 Conn. at 819, 462 A.2d 1060 (psychiatric privilege does not apply if proponent fails to establish necessary evidentiary foundation that records relate to diagnosis and treatment of mental condition).
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....” General Statutes § 52–146d(2). One example is a “visit or discharge” form stating the basis for Gilligan's discharge from the hospital (it is a matter of public record that she died at the hospital). Another example is a letter from the superintendent of the hospital to Gilligan's daughter acknowledging receipt of an item that she had sent to her mother. None of these documents contain any information bearing on the diagnosis or treatment of Gilligan's mental condition. Additionally, the department's own witness testified at a hearing before the commission that certain documents were not psychiatric records, including the correspondence with Gilligan's daughter. Without any evidence relating these documents to Gilligan's psychiatric diagnosis or treatment, the department did not provide a factual predicate to support a finding that they are exempt from disclosure, and the majority is incorrect in concluding that they are exempt.
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. General Statutes § 52–146d(2) ; see also State v. Montgomery, supra, 254 Conn. at 724, 759 A.2d 995. One of the documents is a letter addressed to a representative of a life insurance company, and there is no evidence in the record that the representative was a family member of Gilligan's or that he was a psychiatrist or was working under a psychiatrist's supervision. The department has already released other items of correspondence 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, at 724, 759 A.2d 995. 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. Section 52–146d(2) expressly requires that records must relate to the diagnosis and treatment of a patient's mental condition. If the medical and dental records requested do not relate to a patient's psychiatric care, then they cannot receive protection under § 52–146e, even though they were created at an inpatient psychiatric facility. Id. Nevertheless, the department's claim of privilege does not rest on the content of the documents, as it should, but, instead, on the location where they were created. The department asserts that all of the documents are privileged simply because they were created at an inpatient mental health facility, irrespective of whether they actually related to Gilligan's psychiatric treatment.
The department's interpretation favoring inpatient records has no basis in the statutory text. Section 52–146e (a) applies equally to all records regardless of where they were created. It makes no distinction between records created at inpatient facilities from those created at outpatient facilities, nor does it provide any distinct or greater protection to inpatient records. Its requirements apply equally to records and communications “wherever made”; General Statutes § 52–146d(2) ; including those records and communications made at “ ‘mental health facilit[ies]’ ” that provide either “inpatient or outpatient service[s]....” General Statutes § 52–146d(5).
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 General Statutes § 17a–545, a provision that requires an inpatient psychiatric facility to conduct annual physical examinations of its patients, and argues that this demonstrates the legislature's acknowledgment that physical conditions relate to psychiatric conditions. I disagree. This provision is nothing more than an unremarkable recognition that someone hospitalized for psychiatric illness is also dependent on the institution for care of any physical condition, even if it is unrelated to the patient's psychiatric treatment. Consequently, § 17a–545 ensures that each patient receives at least an annual checkup. And contrary to the department's interpretation equating purely medical records with psychiatric records, the privilege statutes explicitly differentiate between treatment for physical and mental conditions. For example, the physician-patient privilege—which the department has not asserted—expressly extends its protections to communications relating to either “physical or mental ” conditions. Emphasis added.) General Statutes § 52–146o(a)(1). Significantly, the psychiatric privilege omits any mention of records relating to a patient's physical condition, thus contradicting any conclusion that the legislature intended the phrase “mental condition” to include both physical and mental conditions. See State v. B.B., 300 Conn. 748, 759, 17 A.3d 30 (2011) (“[w]here a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject ... is significant to show that a different intention existed” [internal quotation marks omitted] ). The legislature could easily have crafted the psychiatric privilege to include a similarly broad protection to cover records concerning a patient's physical condition, but it did not.
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. at 162, 807 A.2d 485, 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. at 517–18, 14 A.3d 998. 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.
As previously mentioned, the department did not raise the physician-patient privilege in these proceedings, which one would logically assume might be relevant to Gilligan's medical records. Although it is not entirely clear from the record, it appears that the department did not raise the physician-patient privilege because it was not made applicable to requests under the act until after the start of the proceedings at issue here. Public Acts 2011, No. 11–242, § 37; see General Statutes § 1–210(b)(10). It now appears that, since the legislature adopted this change, the commission has applied the privilege to withhold medical records falling within its scope, including records of physical examinations. See Maurer v. Office of Corporation Counsel, Freedom of Information Commission, Docket No. FIC 2011370 (June 13, 2012). Consequently, in light of this development, I would permit the department on remand to raise this and any other potentially applicable privilege to the extent allowed by law.
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 § 52–146e prohibits the release of any document that would identify the subject of the record as a psychiatric patient. It contends that the release of any of Gilligan's records would therefore violate the privilege. I disagree, however, because this interpretation is at odds with § 52–146e.
In the context of the act's exemptions, the psychiatric-patient privilege statute; General Statutes § 52–146e ; does indeed prohibit the release of records that identify a patient, but only if they meet the statutory definition of communications and records as defined in § 52–146d(2). Section 52–146e(a) prohibits any person from disclosing “communications and records or the substance or any part or any resume thereof which identify a patient ....” (Emphasis added.) As I have already discussed at length, “communications and records” are defined as those made between certain parties that pertain to a patient's psychiatric care. General Statutes § 52–146d(2). If a record does not fall within this definition, § 52–146e(a) does not prohibit the disclosure of the record or its substance.
For example, in State v. Montgomery, supra, 254 Conn. at 723, 759 A.2d 995, 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., at 711 and n. 27, 759 A.2d 995. The hospital placed him under the watch of an assistant, who constantly monitored his activities. Id., at 722–23, 759 A.2d 995. 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., at 723, 759 A.2d 995. 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., at 722–23, 759 A.2d 995. 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, at 723, 759 A.2d 995. 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., at 725, 759 A.2d 995. 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., at 323–24, 757 A.2d 571. The plaintiff sent a bill of discovery to the Institute demanding that it produce the other patient's name, but it refused. Id. On appeal, this court upheld the Institute's denial because if it had provided the individual's name it would impermissibly reveal the otherwise confidential fact that the individual was being treated for a psychiatric condition. Id., at 328–29, 757 A.2d 571. Although § 52–146e(a) extends the privilege to only those “communications and records” that identify a patient, this court did not look to whether the information sought actually fit within the statutory definition of protected communications and records. Id., at 326–29, 757 A.2d 571. Instead, our decision was driven in large measure by the policy notion that a central purpose of the statute is to protect the confidentiality of a patient's identity, as well as the confidentiality of a patient's communications and records. We explained that “[t]he confidentiality of a patient's identity is as essential to the statutory purpose of preserving the therapeutic relationship as the confidentiality of any other information in a patient's communications and records.” Id., at 329, 757 A.2d 571. Thus, the central consideration supporting our decision in Falco was that revealing the individual's name would release otherwise confidential identifying information, which could damage the therapeutic relationship. Id.
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. at 819, 462 A.2d 1060 (“[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. at 724, 759 A.2d 995. 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 §§ 52–146d and 52–146e(a). For these reasons, I cannot accept the department's and the majority's overbroad interpretation of the privilege.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 § 1–210(b)(2). As an alternative to its psychiatric-patient privilege claim, the department also asserts that all of the documents at issue are exempt from disclosure under § 1–210(b)(2), which exempts from release any “[p]ersonnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy....” The parties do not dispute that the documents 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.
I agree with the majority's conclusion in part I of its opinion that the department, as the holder of the records at issue, has standing to assert this exemption. See State Library v. Freedom of Information Commission, 240 Conn. 824, 834, 694 A.2d 1235 (1997) (agency subject to commission's order is aggrieved because noncompliance could result in civil and criminal penalties). I note, however, that I do not understand why the majority has analyzed the department's standing in its opinion. The standing issue raised by the commission pertains only to the department's standing to raise the personal privacy exemption, which the majority does not address. The majority addresses only the psychiatric records privilege, which the commission concedes that the department has standing to raise. Nevertheless, I agree with the majority's conclusion that the department has standing to raise this exemption.
A
As a threshold matter, the commission asserts that the exemption in § 1–210(b)(2) does not protect the privacy interests of individuals who are deceased. I agree.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. 3Restatement (Second), Torts § 652D (1977). In Perkins v. Freedom of Information Commission, supra, 228 Conn. at 175, 635 A.2d 783 this court explored in detail the contours of the personal privacy exemption in § 1–210(b)(2), formerly General Statutes § 1–19. We explained that the phrase used by the legislature in that exemption, “invasion of personal privacy,” had acquired a peculiar meaning within the law and must therefore be construed consistently with that meaning. Id., at 169, 635 A.2d 783 ; see also General Statutes § 1–1(a) (requiring us to construe statutory references to legal terms of art consistently with their legal meaning). This court determined that the invasion of personal privacy exemption found “its most persuasive common-law counterpart in the tort of invasion of privacy ... that provides a remedy for unreasonable publicity given to a person's private life”; (footnote omitted) Perkins v. Freedom of Information Commission, supra, at 171, 635 A.2d 783 ; and that the relationship between the exemption and the common-law tort was “close and compelling.” Id., at 173, 635 A.2d 783. In light of this close relationship, we used the standards for unreasonable publicity in § 652D of the Restatement (Second) to define the scope of the exemption. Id., at 171–73, 635 A.2d 783. I therefore turn to the Restatement (Second) for guidance.
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; General Statutes § 52–599 ; actions for personal torts cannot be assigned and extinguish upon the death of the plaintiff. See, e.g., Gurski v. Rosenblum & Filan, LLC, 276 Conn. 257, 267, 885 A.2d 163 (2005) ; Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 382–83, 698 A.2d 859 (1997).
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. at 175, 635 A.2d 783. 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 record supports this finding. The complainant filed an uncontroverted statement with the commission explaining that, apart from the notoriety Gilligan's case received from movies and plays, there remains interest in her crimes, her illness and her treatment. The State Library has recognized the historical significance of her case and has retained a robust file about her criminal proceedings, including charging documents, trial transcripts, and appellate briefs. Authors have continued 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, at § 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. at 164–65, 635 A.2d 783 (“[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] ).
Perhaps recognizing their historical significance, the department has kept the records at issue even though Gilligan died more than fifty years ago and no law requires their retention.
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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, at § 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 of legitimate public interest”). We note that the federal Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. § 1320d et seq., provides objective evidence that community standards disfavor the release of medical records, but we also note that HIPAA restricts the release of such information for only fifty years after an individual's death. 45 C.F.R. § 164.502(f). Gilligan has been deceased for more than fifty years. Finally, even if the department had shown that release of Gilligan's medical and dental records would be highly offensive, many of the remaining records are merely administrative records similar to others concerning Gilligan that the department has already released. I am persuaded, therefore, that this exemption does not apply to the documents at issue.
Accordingly, I concur in part and dissent in part.