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COMMISSIONER OF MENTAL HEALTH & ADDICTION SERVICES v.
FREEDOM OF INFORMATION COMMISSION—DISSENT
KELLER, J., with whom D’AURIA, J., joins, dissenting.
I disagree with the majority that the records at issue
in this appeal, reports prepared by members of the
police department of the plaintiff Department of Mental
Health and Addiction Services1 (hospital police reports),
are not privileged pursuant to General Statutes § 52-146e
(a). My review of the hospital police reports reveals
that they contain precisely the type of information that
the legislature intended to protect through the psychia-
trist-patient privilege. The reports constitute communi-
cations and records thereof pursuant to § 52-146e (a),
and, because they identify two patients, including the
patient who is the subject of the reports, they are also
privileged identifying records, which may be disclosed
only if either the patient or the patient’s authorized
representative consents to disclosure, or if one of the
statutory exceptions to the consent requirement in § 52-
146e (a) applies. Because no authorized representative
has consented to disclosure and no statutory exception
applies, disclosure is prohibited by § 52-146e (a).
The majority’s conclusions to the contrary—that the
hospital police reports are not privileged communica-
tions or records thereof because they were prepared by
members of the plaintiff’s police department (hospital
police) and that identifying records are not privileged
pursuant to § 52-146e (a)—create a two tiered system
for applying the psychiatrist-patient privilege. The legis-
lature has stated its intent to provide the same level of
protection to the psychiatric records of persons who
receive treatment from a public mental health institu-
tion as that afforded to the records of persons who
receive treatment from a private mental health care
provider. That intent is thwarted by the majority’s nar-
row construction of § 52-146e (a). Under the majority’s
rule, the communications and identifying records of
persons who receive private mental health care are
inviolate, but the statutory privilege of a person treated
in a public mental health facility is inferior. This is
especially true when the person being treated has engaged
in self-harming behavior or behavior harmful to others
that results in any intervention or investigation by the
hospital police or some other provider of security in a
public mental health institution. Given the likelihood
that such reports are duplicative of records prepared
by mental health staff documenting such incidents, the
majority’s rule allows members of the public who seek
otherwise privileged records to circumvent the protec-
tions afforded to patients by the psychiatrist-patient
privilege. Rather than requesting the records prepared
by mental health staff, one need only seek the reports
prepared by the hospital police. The majority’s rule
runs contrary to the legislature’s intent to provide equal
protection to those who receive treatment in public
institutions and, because indigent persons are those
most likely to turn to public institutions for treatment,
provides the least protection to the most vulnerable
among us.
Finally, because I conclude that the hospital police
reports are privileged records not subject to disclosure
pursuant to the Freedom of Information Act (FOIA), Gen-
eral Statutes § 1-200 et seq., I disagree with the majori-
ty’s conclusion that the reports may be disclosed in
redacted form pursuant to the Health Insurance Porta-
bility and Accountability Act of 1996 (HIPAA), 42 U.S.C.
§ 1320d et seq., as implemented by the Privacy Rule,
45 C.F.R. § 160.101 et seq.
Accordingly, I respectfully dissent.
I
I disagree with the majority’s conclusion that the
determination of the named defendant, the Freedom of
Information Commission (commission)—that the hos-
pital police reports do not constitute communications
or records for purposes of § 52-146e (a)—is supported
by substantial evidence.2 The commission’s determina-
tion, which rested primarily on the fact that the reports
were prepared by members of the hospital police rather
than by staff more directly involved in the provision
of mental health care for the patients at the Whiting
Forensic Division of Connecticut Valley Hospital (Whit-
ing), cannot be reconciled with either the decisions of
this court interpreting § 52-146e (a) or the testimony
presented before the commission’s hearing officer.
‘‘According to our well established standards, [r]eview
of an administrative agency decision requires a court
to determine whether there is substantial evidence in
the administrative record to support the agency’s find-
ings of basic fact and whether the conclusions drawn
from those facts are reasonable. . . . Neither this court
nor the trial court may retry the case or substitute its
own judgment for that of the administrative agency on
the weight of the evidence or questions of fact. . . .
Our ultimate duty is to determine, in view of all of the
evidence, whether the agency, in issuing its order, acted
unreasonably, arbitrarily, illegally or in abuse of its dis-
cretion. . . . [A]n agency’s factual and discretionary
determinations are to be accorded considerable weight
by the courts.’’ (Internal quotation marks omitted.)
Stratford Police Dept. v. Board of Firearms Permit
Examiners, 343 Conn. 62, 81, 272 A.3d 639 (2022). As
the majority explains, because the interpretations of
the commission and the plaintiff are not entitled to
deference, our review of § 52-146e (a) is de novo.
I agree with much of the majority’s statutory con-
struction of the first sentence of § 52-146e (a). The
majority correctly concludes that the definition of
‘‘communications and records’’ in General Statutes § 52-
146d (2)3 clarifies that the first sentence of § 52-146e
(a) protects only communications and records of com-
munications. I also agree that such communications
must ‘‘relat[e] to diagnosis or treatment of a patient’s
mental condition’’; General Statutes § 52-146d (2); and
that, pursuant to this court’s decision in Freedom of
Information Officer, Dept. of Mental Health & Addic-
tion Services v. Freedom of Information Commission,
318 Conn. 769, 122 A.3d 1217 (2015) (Freedom of Infor-
mation Officer), treatment of a patient’s mental condi-
tion includes the provision of medical treatment. Id.,
790–91. I also agree with the majority that records relate
to the patient’s diagnosis or treatment if the records are
‘‘connected by reason of an established or discoverable
relation’’ to diagnosis or treatment. (Internal quotation
marks omitted.) Finally, I agree that, pursuant to § 52-
146d (2), ‘‘communications and records thereof’’ must
be between one of three sets of communicants: the
patient and a psychiatric mental health provider, a fam-
ily member of the patient and a psychiatric mental
health provider, or the patient, a family member or a
psychiatric mental health provider and ‘‘a person partic-
ipating under the supervision of a psychiatric mental
health provider in the accomplishment of the objectives
of diagnosis and treatment . . . .’’
I disagree with one aspect of the majority’s statutory
construction, namely, its dismissal of the significance
of the final clause of § 52-146d (2), ‘‘including communi-
cations and records which occur in or are prepared at
a mental health facility . . . .’’ This language was added
in a 1969 amendment to the statute; see Public Acts
1969, No. 819, § 1; and was intended to clarify that the
privilege extends equally to patients in public mental
health institutions. See Conn. Joint Standing Committee
Hearings, Judiciary, Pt. 1, 1969 Sess., p. 82, remarks
of Representative Mary B. Griswold (‘‘[w]e do have
protection of private patients but it has never been
clearly stated that such privacy extends to patients in
public institutions’’); id., p. 96, remarks of Nancy Greenman
(‘‘[w]e wish to see this bill passed in order to ensure
that all persons entering into psychotherapy shall be
certain of the same confidentiality some of us have
already found so helpful, and also to ensure that any
of us, past or future patients, might feel perfectly free
to seek help from any public facility if this should ever
become necessary’’ (emphasis added)). This final clause
of § 52-146d (2), therefore, clarifies the legislature’s
intent that patients receiving treatment from public
mental health care providers are statutorily entitled to
the same confidentiality in their records as that enjoyed
by patients receiving treatment from private mental
health care providers. Accordingly, this language requires
that the scope of the psychiatrist-patient privilege be
construed in a manner that ensures that the privilege is
applied with equal effect to persons who seek treatment
from public mental health care providers.
Proper construction of the interaction between the
psychiatrist-patient privilege and FOIA is crucial in
attaining that objective. Each of these rights, the psychi-
atrist-patient privilege and the right to inspect public
records, claims priority in the law. Compare Freedom
of Information Officer, Dept. of Mental Health & Addic-
tion Services v. Freedom of Information Commission,
supra, 318 Conn. 784 (noting that ‘‘the exceptions to
the general rule of nondisclosure of communications
between psychiatrist and patient were drafted narrowly
to ensure that the confidentiality of such communica-
tions would be protected unless important countervail-
ing considerations required their disclosure’’ (internal
quotation marks omitted)), with Waterbury Teachers
Assn. v. Freedom of Information Commission, 240
Conn. 835, 840, 694 A.2d 1241 (1997) (‘‘the long-standing
legislative policy of [FOIA] favoring the open conduct
of government and free public access to government
records . . . requires us to construe [its] provisions
. . . to favor disclosure and to read narrowly [its]
exceptions to disclosure’’ (citations omitted; internal
quotation marks omitted)). Each of the two statutory
schemes claims a broad right that cabins narrowly
crafted and interpreted exceptions. This court repeat-
edly has recognized that ‘‘[t]he people of this state enjoy
a broad privilege in the confidentiality of their psychiat-
ric communications and records . . . and the principal
purpose of that privilege is to give the patient an incen-
tive to make full disclosure to a physician in order to
obtain effective treatment free from the embarrassment
and invasion of privacy . . . . Accordingly, the excep-
tions to the general rule of nondisclosure of communi-
cations between psychiatrist and patient were drafted
narrowly to ensure that the confidentiality of such com-
munications would be protected unless important coun-
tervailing considerations required their disclosure.’’4
(Citations omitted; internal quotation marks omitted.)
Falco v. Institute of Living, 254 Conn. 321, 328, 757
A.2d 571 (2000). We also have recognized ‘‘the long-
standing legislative policy of [FOIA] favoring the open
conduct of government and free public access to gov-
ernment records. . . . We consistently have held that
this policy requires us to construe the provisions of
[FOIA] to favor disclosure and to read narrowly [its]
exceptions to disclosure.’’ (Citations omitted; internal
quotation marks omitted.) Commissioner of Emer-
gency Services & Public Protection v. Freedom of Infor-
mation Commission, 330 Conn. 372, 383, 194 A.3d
759 (2018).
This court has never addressed the inherent tension
between the two statutory schemes. The legislature,
however, already has expressed its intent regarding
how to balance these competing rights by stating its
intent to provide the same level of protection to persons
receiving treatment from public and private mental
health care providers. More than in any other area of
the law, FOIA has the greatest potential to disrupt the
legislature’s stated intent. Application of FOIA to com-
munications and records or identifying records that are
privileged pursuant to § 52-146e (a) cannot dilute the
protection afforded to patients who receive treatment
from public mental health care providers without con-
travening the legislature’s stated intent to maintain
equal protection for patients treated by private and
public mental health care providers. When FOIA and
the psychiatrist-patient privilege collide, the privilege
must be protected. The legislature has already identified
the required and appropriate limits to the privilege in
the exceptions set forth in General Statutes §§ 52-146f
through 52-146i. A request to inspect records or to
receive a copy of records pursuant to FOIA is not one
of those exceptions.5 Accordingly, when a communica-
tion or record has been deemed to be protected by
the psychiatrist-patient privilege, it is protected from
disclosure in its entirety, not merely protected from
unredacted disclosure.
With these statutory principles in mind, I turn to the
issue of whether the commission’s determination that
the hospital police reports are not communications or
records thereof pursuant to § 52-146e (a) was supported
by substantial evidence in the record. The commission
determined that the reports are not ‘‘communications’’
or ‘‘records’’ as defined in § 52-146d (2) because (1)
they do not ‘‘relat[e] to diagnosis and treatment of a
patient’s mental condition,’’ and (2) they are not com-
munications or records thereof ‘‘between the patient
and a psychiatric mental health provider, or between a
member of the patient’s family and a psychiatric mental
health provider, or between any of such persons and a
person participating under the supervision of a psychi-
atric mental health provider in the accomplishment of
the objectives of diagnosis and treatment . . . .’’ Gen-
eral Statutes § 52-146d (2). Integral to the commission’s
conclusion was the fact that the reports were prepared
by members of the hospital police.
I agree with the majority that the hospital police
reports ‘‘relate to’’ diagnosis or treatment pursuant to
§ 52-146d (2). For two reasons, however, I disagree
with the majority’s suggestion that, although the reports
‘‘relate to’’ diagnosis or treatment, they somehow also
do not because the ‘‘purpose’’ of the reports is not to
be used in the diagnosis or treatment of the patient
but, rather, to investigate the incident that caused the
patient’s death. First, confining the meaning of ‘‘relating
to’’ in the manner suggested by the majority is inconsis-
tent with the broad definition of that phrase. In order
for the reports to relate to diagnosis or treatment, they
need not have that as their purpose. If the legislature
had intended to require that records be used for the
purpose of diagnosis or treatment in order to be pro-
tected, it could have said so. It did not. The hospital
police reports, therefore, ‘‘relate to’’ diagnosis or treat-
ment if they are connected by reason of an established
or discoverable relation to diagnosis or treatment. See,
e.g., Lombardo’s Ravioli Kitchen, Inc. v. Ryan, 268
Conn. 222, 233, 842 A.2d 1089 (2004) (defining ‘‘related’’
as ‘‘having relationship: connected by reason of an
established or discoverable relation’’ (internal quota-
tion marks omitted)).
As I explain in this opinion, the hospital police reports
document the treatment, albeit unsuccessful, provided
to the patient, the patient’s mental health diagnosis, his
statements and actions prior to and during the medical
emergency, as well as the observations of the mental
health staff of the patient’s symptoms and responses
to treatment during the course of the emergency. Those
facts are more than sufficient to establish the broad
connection necessary to support the conclusion that
the reports are related to diagnosis or treatment.
Second, the majority’s suggestion that the hospital
police reports served solely investigative purposes does
not find support in the record. During the hearing before
the commissioner, the hearing officer asked Diana Lej-
ardi, the plaintiff’s freedom of information officer, whether
certain hospital police reports would be ‘‘used for the
diagnosis or treatment of [a patient],’’ and whether
‘‘medical personnel at Whiting . . . would . . . look
at the [reports] in order to make their decisions about
treatment . . . .’’ I note that the hearing officer’s
inquiry indicates that he incorrectly understood the
term ‘‘relating to’’ to be limited to ‘‘used for’’ the purpose
of diagnosis or treatment. Even with this incorrect,
narrow framing of the inquiry, Lejardi responded that
‘‘there may be information [in hospital police reports]
. . . that . . . the medical team or treatment team may
use . . . .’’ When the hearing officer rephrased his
inquiry to be consistent with the statutory language,
Lejardi provided a more definitive response. Specifi-
cally, the hearing officer asked Lejardi whether hospital
police reports ‘‘could contain medical or psychiatric
information that’s relevant to the treatment of [a patient],’’
and, without qualification, Lejardi responded, ‘‘yes.’’6
In support of its determination that the hospital police
reports do not relate to diagnosis or treatment, the
commission stated that ‘‘the . . . reports prepared by
[the hospital police] do not reflect diagnosis or treat-
ment made by others.’’ That statement is belied by the
reports themselves, which, as I explained, summarize
in detail both the treatment provided to the patient and
the observations of medical and mental health staff
regarding the patient’s symptoms and responses to the
emergency medical treatment provided to him. In addi-
tion, from the information that the majority concludes
must be disclosed, the public will learn of the nature
of the patient’s commitment, his multiple diagnoses,
his perceived level of dangerousness, his required level
of supervision, some of his prior concerning behaviors,
as well as statements that he made to mental health
staff and that staff made to him, which are indisputably
communications. Without question, in light of this
court’s holding in Freedom of Information Officer that
the provision of physical medical treatment at inpatient
facilities is encompassed within mental health treat-
ment; Freedom of Information Officer, Dept. of Mental
Health & Addiction Services v. Freedom of Information
Commission, supra, 318 Conn. 790–91; the hospital
police reports relate to the patient’s treatment and diag-
nosis. The commission’s determination otherwise does
not find support in the record and is grounded on an
incorrect construction of the phrase ‘‘relating to’’ in
§ 52-146d (2).
I offer a final, general observation on the requirement
that records relate to diagnosis or treatment. This court
has not yet had occasion to consider whether records
created after the death of a patient fall within the protec-
tion of § 52-146e (a). The statutory scheme, however,
contemplates that the protection of the privilege contin-
ues following the death of a patient. In order to disclose
records that are privileged pursuant to § 52-146e (a),
unless the records fall under a statutory exception, one
must first obtain the consent of the patient or the
patient’s authorized representative. Section 52-146d (1)
defines ‘‘authorized representative’’ to include, ‘‘if a
patient is deceased, his or her personal representative
or next of kin . . . .’’ General Statutes § 52-146d (1)
(B); see also Freedom of Information Officer, Dept.
of Mental Health & Addiction Services v. Freedom of
Information Commission, supra, 318 Conn. 771 (applying
privilege to records of patient who had died decades
before request was filed pursuant to FOIA). Although
the records at issue in Freedom of Information Officer
were created prior to the patient’s death, nothing in
that decision or in the statutory scheme precludes the
application of the privilege to such records. Indeed,
given the emergent nature of the medical incident in
the present case, it would have been impossible to cre-
ate such records while the patient remained alive. Some
of the reports were created within twenty-four hours
of the patient’s death.
If the legislature had intended to restrict the privilege
to records that were created during the patient’s life, it
could have designated the required connection between
the records and diagnosis or treatment more narrowly,
such as limiting the privilege to records used in diagno-
sis or treatment.
I next consider the requirement in § 52-146d (2) that
the communications and records thereof must be
‘‘between the patient and a psychiatric mental health
provider, or between a member of the patient’s family
and a psychiatric mental health provider, or between
any of such persons and a person participating under
the supervision of a psychiatric mental health provider
in the accomplishment of the objectives of diagnosis
and treatment . . . .’’ It is significant that the hospital
police reports include communications between differ-
ent members of Whiting’s mental health staff and between
mental health staff and the patient. The reports, therefore,
must be evaluated on two levels. First, whether the
reports are communications between one of the three
required sets of communicants, and, second, whether
the communications documented in the reports are
between any of the three sets of communicants.
In concluding that the hospital police reports were
not communications between any of the required sets
of communicants, the commission gave no consider-
ation to the fact that the reports include communica-
tions among mental health staff and between mental
health staff and the patient. It relied solely on its deter-
mination that hospital police officers ‘‘do not participate
in the diagnosis or treatment of a patient’s mental condi-
tion . . . .’’ That determination requires a more con-
crete link between the officers and diagnosis and treat-
ment than is supported by the language of § 52-146d
(2), which requires only that the officers work ‘‘under
the supervision of a psychiatric mental health provider
in the accomplishment of the objectives of diagnosis
and treatment . . . .’’ The commission also ignored the
communications documented in the hospital police
reports among the mental health staff and between the
mental health staff and the patient.
Contrary to the commission’s conclusion, the testi-
mony provided before the hearing officer established
that the hospital police officers who prepared the
reports are ‘‘person[s]’’ who ‘‘participat[e] under the
supervision of a psychiatric mental health provider in
the accomplishment of the objectives of diagnosis and
treatment . . . .’’ General Statutes § 52-146d (2). With
respect to the requirement that the participation of the
hospital police officers be ‘‘under the supervision of a
psychiatric mental health provider’’; General Statutes
§ 52-146d (2); it is undisputed that the officers are sta-
tioned and employed at Whiting, and that, at the time
the reports were created, Whiting was under the super-
vision of its chief executive officer, Michael Norko, a
forensic psychiatrist. The record therefore establishes
that the hospital police officers participated under the
supervision of a psychiatric mental health provider.
With respect to the requirement that the participation
of the hospital police officers be ‘‘in the accomplish-
ment of the objectives of diagnosis and treatment’’;
General Statutes § 52-146d (2); the hospital police
reports themselves, which detail the treatment adminis-
tered to the patient and document information related
to diagnosis, provide the best demonstration that the
officers’ work served this purpose. Additionally, Lejardi
testified before the hearing officer that, because Whit-
ing is a maximum security facility, the hospital police
are sometimes required to assist in dealing with patients
who exhibit severe behaviors. She further testified that
the officers receive specific training for their positions,
interact with Whiting patients and staff daily, and are
aware of the patients’ behaviors and triggers. I agree
with the trial court’s observation that this testimony
established that ‘‘[t]he [hospital] police work integrally
with the mental health care providers at Whiting . . .
to deliver overall mental health care. The dedicated
police force maintains order and promotes the safety of
staff and patients as psychiatric services are delivered.
Given the type of patients and psychiatric services deliv-
ered at Whiting . . . it would not be reasonably possi-
ble to deliver the treatment provided without the ser-
vices of the [hospital] police.’’
On the basis of this record, I conclude that the hospi-
tal police worked ‘‘in the accomplishment of the objec-
tives of diagnosis and treatment . . . .’’ General Stat-
utes § 52-146d (2).7 That is, their services provide a
necessary foundation for the provision of diagnosis and
treatment of patients. Their role, therefore, is one that
serves ‘‘the accomplishment of the objectives of diagno-
sis and treatment . . . .’’ General Statutes § 52-146d
(2). By requiring instead that the hospital police partici-
pate in diagnosis and treatment directly, the commis-
sion relied on a misinterpretation of § 52-146d (2) and
did not properly apply the law to the facts of the case. Its
conclusion, therefore, was not supported by substantial
evidence in the record.
As I noted previously, the commission also gave no
effect to the inclusion in the hospital police reports of
communications between the patient and Whiting staff
members and between different staff members. The
reports, therefore, are not only, in and of themselves,
protected communications, but are also records of priv-
ileged communications. Included in the reports are
direct quotes of statements that the patient made to
two forensic treatment specialists, communications
between medical care providers, communications
between mental health staff, a direct quote from a differ-
ent patient communicating with mental health staff, and
communications between mental health staff and the
medical doctor on call on the night of the incident. I
acknowledge that some of the reports do not record
communications between patients or staff. It is also
true that the reports that include such communications
also incorporate information in addition to such com-
munications. Nothing in § 52-146d (2), however, sug-
gests that portions of records should be scrutinized to
determine which portions constitute records of privi-
leged communications and which do not, or that there
is some percentage threshold that determines whether
hybrid records constitute records of privileged commu-
nications. Accordingly, I conclude that the commission
improperly failed to give any effect to the privileged
communications recorded in the hospital police reports.
Because the hospital police reports are privileged
records pursuant to § 52-146e (a), they are not public
records pursuant to FOIA. The exemption claimed by
the plaintiff, which is set forth in General Statutes § 1-
210 (a), provides in relevant part: ‘‘Except as otherwise
provided by any federal law or state statute, all records
maintained or kept on file by any public agency . . .
shall be public records and every person shall have the
right to (1) inspect such records . . . (2) copy such
records . . . or (3) receive a copy of such records
. . . .’’ (Emphasis added.) The plain language of § 1-210
(a) provides that records that fall within the otherwise
provided by law exception are not ‘‘public records’’
for purposes of FOIA. This court has held that this
exemption applies to ‘‘federal and state laws that, by
their terms, provide for confidentiality of records or
some other similar shield from public disclosure.’’ Chief
of Police v. Freedom of Information Commission, 252
Conn. 377, 399, 746 A.2d 1264 (2000). Because § 52-146e
(a) expressly provides for confidentiality of records,
the exemption to disclosure in § 1-210 (a) applies and
the hospital police reports are not public records pursu-
ant to FOIA. See General Statutes § 1-210 (a); see also
Commissioner of Public Safety v. Freedom of Informa-
tion Commission, 204 Conn. 609, 623, 529 A.2d 692
(1987) (conclusion that records fell within exemption
to disclosure set forth in predecessor to § 1-210 (a)
disposed of administrative appeal because ‘‘records
[that] are not governed by . . . FOIA do not fall within
the jurisdiction of the [commission]’’).
II
I disagree with the majority’s narrow interpretation
of the scope of protection afforded by the second sen-
tence of § 52-146e (a), which protects ‘‘communications
and records or the substance or any part or any resume
thereof’’ that identifies a patient by prohibiting the dis-
closure or transmittal of such records without the con-
sent of the patient or his authorized representative,
‘‘[e]xcept as provided in sections 52-146f to 52-146i,
inclusive . . . .’’8 General Statutes § 52-146e (a). The
majority blunts the effect of the second sentence of
§ 52-146e (a) by ignoring the consent requirement and
statutorily enumerated exceptions thereto, stating that
‘‘the only information that is privileged under § 52-146e
(a) is ‘the substance . . . part or . . . resume’ of ‘com-
munications and records as defined in section 52-146d
(2)’ . . . .’’ (Footnote omitted.) The majority effec-
tively revises § 52-146e (a) by deleting the second sen-
tence and incorporating the phrase ‘‘the substance . . .
part or . . . resume thereof’’ into the first sentence of
the statute. Contrary to the language of § 52-146e (a)
that expressly prohibits disclosure of such records with-
out first obtaining a patient’s consent or demonstrating
that one of the statutory exceptions applies, the major-
ity concludes that they are required to be disclosed
pursuant to FOIA. According to the majority, the only
measure required before disclosing these statutorily
privileged records is the redaction of the patient’s name,
and very little else, despite the commission’s finding
that the requesting parties knew the patient’s name, a
fact that renders redaction meaningless. That narrow
interpretation not only conflicts with the plain language
of the § 52-146e (a) but also fails to consider related
statutes, which clarify the legislature’s intent to give
broad power to the patient or the patient’s authorized
representative to withhold consent and which demon-
strate that the legislature already has identified the
appropriate exceptions when consent is not required
prior to disclosure. The majority’s reading of § 52-146e
(a) also conflicts with our controlling case law and
flouts the legislature’s stated public policy of providing
the same level of protection to those who receive treat-
ment at public and private mental health care institu-
tions.
The determination of the scope of protection afforded
by § 52-146e (a) to records that identify a patient pre-
sents an issue of statutory interpretation, over which
we exercise plenary review, guided by established prin-
ciples for discerning legislative intent. See, e.g., Fay v.
Merrill, 336 Conn. 432, 446, 246 A.3d 970 (2020)
(describing plain meaning rule, as set forth in General
Statutes § 1-2z, and principles for discerning legisla-
tive intent).
My review of § 52-146e (a) reveals that its protection
of identifying records sweeps broadly, protecting more
than communications and records, and establishing a
clearly defined and narrow path to permissible disclo-
sure, a path that was not followed in the present case.
The second sentence of § 52-146e (a) provides: ‘‘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, corpora-
tion or governmental agency without the consent of the
patient or his authorized representative.’’
In addition to protecting communications and
records themselves, the second sentence of § 52-146e
(a) protects the ‘‘substance’’ of such communications or
records, ‘‘any part’’ of such communications or records,
and ‘‘any resume’’ of such communications or records.9
Therefore, a record that identifies a patient—for exam-
ple, a hospital police report—is privileged if the record
includes the substance or any part of a privileged com-
munication or record, or if the record constitutes a
‘‘resume’’ or summary of a privileged communication
or record.10 The hospital police reports, which include
the substance of and summarize privileged communica-
tions and are themselves, in part, privileged communica-
tions, satisfy this requirement. This provision ensured,
until today, that a person filing a request under FOIA
could not circumvent the psychiatrist-patient privilege
by requesting a communication or record prepared by
someone other than a psychiatric mental health care
provider that duplicates in whole, part, or summary
form, the same privileged information that would other-
wise be protected by § 52-146e (a). Under the majority’s
analysis, however, that is now permitted.
Related statutes, which the majority does not con-
sider, make clear that the statutory scheme grants the
patient or the patient’s authorized representative an
extraordinary measure of control over the disclosure
of identifying records and provides a detailed, compre-
hensive list of the applicable exceptions to the consent
requirement. The statutory scheme clearly defines the
narrow path to disclosure. An identifying record that
is privileged pursuant to § 52-146e (a) can be disclosed
only if one of two conditions is met: (1) the patient or his
authorized representative consents to the disclosure,
or (2) one of the statutory exceptions applies. As I noted
previously, the filing of a request pursuant to FOIA is
not one of the exceptions to the consent requirement.11
The requirement that the individual seeking disclo-
sure must first obtain the patient’s consent is not readily
circumscribed. Only ‘‘the patient or his authorized rep-
resentative’’ may give consent for disclosure. General
Statutes § 52-146e (a). Section 52-146d (1) defines
‘‘authorized representative’’ as ‘‘(A) a person empow-
ered by a patient to assert the confidentiality of commu-
nications or records which are privileged under sections
52-146c to 52-146i, inclusive, or (B) if a patient is
deceased, his or her personal representative or next of
kin, or (C) if a patient is incompetent to assert or waive
his privileges hereunder, (i) a guardian or conservator
who has been or is appointed to act for the patient, or (ii)
for the purpose of maintaining confidentiality until a
guardian or conservator is appointed, the patient’s near-
est relative . . . .’’
The scope of consent, when given, is defined nar-
rowly, authorizing disclosure only to the person or
agency designated in the consent and only for the spe-
cific use designated in the consent. See General Statutes
§ 52-146e (b). (‘‘[a]ny consent given to waive the confi-
dentiality shall specify to what person or agency the
information is to be disclosed and to what use it will
be put’’ (emphasis added)) Additionally, pursuant to
§ 52-146e (c), the patient or the patient’s authorized
representative may withdraw consent at any time. The
power to withhold, limit, or withdraw consent does not
end with the patient’s death. As I observed previously,
§ 52-146d (1) provides that, if a patient is deceased,
the patient’s ‘‘authorized representative’’ is ‘‘his or her
personal representative or next of kin . . . .’’ General
Statutes § 52-146d (1) (B).
If a patient or the patient’s authorized representative
does not consent to disclosure, the privilege may be
overcome if one of the exceptions enumerated in §§ 52-
146f through 52-146i applies.12 The exceptions are com-
prehensive. No consent is required for disclosure when
(1) the disclosure is to other persons or mental health
care providers engaged in the diagnosis or treatment
of the patient; General Statutes § 52-146f (1); (2) the
mental health care provider determines that there is a
substantial risk of imminent physical injury by the
patient to himself or others; General Statutes § 52-146f
(2); (3) the disclosure is to individuals or agencies
involved in the collection of fees for the mental health
services provided to the patient; General Statutes § 52-
146f (3); (4) the disclosure is in certain court proceed-
ings, including conservatorship and competency hear-
ings, is limited to issues involving the patient’s mental
condition, and the patient was informed prior to making
the communications that they would be admissible;
General Statutes § 52-146f (4); (5) in a civil proceeding,
the patient, or a representative or beneficiary of a
deceased patient, has introduced the patient’s mental
condition as an element of a claim or defense, and the
court has found that the interests of justice require
disclosure; General Statutes § 52-146f (5); (6) the disclo-
sure is to the Commissioner of Public Health or the
Commissioner of Mental Health and Addiction Services
in the context of an inspection, investigation, or exami-
nation of a mental health institution’s communications
or records; General Statutes § 52-146f (6); (7) the disclo-
sure is to the immediate family or legal representative
of a victim of a homicide committed by a patient who
has been adjudicated not guilty by reason of mental
disease or defect pursuant to General Statutes § 53a-
13, provided that the request is not later than six years
after such adjudication and the records shall be avail-
able only during the pendency and for use in a civil
action relating to the patient; General Statutes § 52-146f
(7); (8) a provider of behavioral health services that
contracts with the plaintiff requests payment, and dis-
closure is to the plaintiff for the limited purpose of
determining whether payment is warranted and to make
the payment; General Statutes § 52-146f (8); (9) the dis-
closure is to a person engaged in research, limited to
records necessary for such research, the director of the
mental health facility has reviewed and approved the
research plan, and the director and researcher remain
responsible for preserving the patient’s anonymity; Gen-
eral Statutes § 52-146g; or (10) the disclosure is requested
from individuals or facilities under contract with the
plaintiff by the Commissioner of Mental Health and
Addiction Services, pursuant to his or her obligation
under General Statutes § 17a-451 ‘‘to maintain the over-
all responsibility for the care and treatment of persons
with psychiatric disorders or substance use disorders.’’
General Statutes § 52-146h.
This court has held that no exceptions are available
beyond those statutorily enumerated and that it is ‘‘con-
trary to the language of [§ 52-146e] and the intent of
the legislature for courts to make discretionary case-
by-case determinations of when the privilege may be
overridden.’’ Falco v. Institute of Living, supra, 254
Conn. 331. That conclusion is consistent with the legis-
lative history of § 52-146e. Specifically, when the psychi-
atrist-patient privilege was first enacted in 1961, legisla-
tors considered whether to amend the statute to allow
a trial court to determine on a case-by-case basis whether
in ‘‘justice and equity’’ the privilege should be invoked.
9 H.R. Proc., Pt. 8, 1961 Sess., p. 3946, remarks of Repre-
sentative Homer G. Scoville; id. (proposing amendment
to allow courts to consider ‘‘justice and equity’’ in
determining whether to apply privilege). That amend-
ment was rejected after other representatives spoke
against it, arguing that the amendment ran the risk that a
patient’s decision not to disclose privileged information
could be ‘‘overruled’’ by a judge.13 See, e.g., id., p. 3948,
remarks of Representative Nicholas B. Eddy. Others
contended that allowing a judge to weigh in would
eviscerate the privilege. See, e.g., id., p. 3950, remarks
of Representative Robert J. Testo. If the legislature had
intended that a request pursuant to FOIA should consti-
tute an exception to the psychiatrist-patient privilege,
it would have created an additional statutory exception.
It did not.
The majority’s suggestion that the redaction of the
patient’s name is somehow sufficient to safeguard the
patient’s privilege rings particularly hollow in the pres-
ent case, in which the commission found that both
complainants, Josh Kovner and The Hartford Courant,
‘‘know the identity of the patient . . . .’’ Given that
finding, which is not challenged on appeal, the redaction
ordered by the majority is a purely mechanical applica-
tion of § 52-146e (a), without any meaningful effect in
protecting the patient’s privilege.
The majority’s narrow interpretation of the protec-
tion provided to identifying records directly contradicts
this court’s controlling case law. This court has stated
that ‘‘the protection of communications that identify a
patient are central to the purpose of . . . [§] 52-146e
(a) [which] specifically prohibits the disclosure or trans-
mission of any communications or records that would
identify a patient . . . .’’ (Internal quotation marks
omitted.) Falco v. Institute of Living, supra, 254 Conn.
328–29. In Falco, the only information at issue was the
name, home address, and social security number of an
inpatient at a mental health facility. Id., 323. This court
held that the purely administrative information was pro-
tected from disclosure by the statutory privilege. Id.,
329. The court explained: ‘‘The confidentiality of a
patient’s identity is as essential to the statutory purpose
of preserving the therapeutic relationship as the confi-
dentiality of any other information in a patient’s commu-
nications and records.’’ Id.
The majority claims that, because the parties in Falco
agreed that § 52-146e (a) applied, this court did not
consider whether the records at issue in that case fell
under the protection of § 52-146e (a). Even if I were to
accept the majority’s implicit premise—that this court
would accept as its starting point, without any inquiry,
a potentially incorrect interpretation of a statute merely
because the parties agreed on that incorrect interpreta-
tion—that is not what happened in Falco. Rather, in
that decision, the court focused on the aspect of the
statute on which the parties disagreed—‘‘whether the
psychiatrist-patient privilege against disclosure, pursu-
ant to . . . § 52-146e, is subject to any exceptions
beyond those enacted by the legislature.’’ (Footnote
omitted.) Id., 322–23. By necessity, however, the court
also discussed whether the records at issue were privi-
leged pursuant to the statute. See id., 328–29.
An excerpt from Falco demonstrates that the majority
incorrectly represents this court’s analysis in that case.
In support of its conclusion that § 52-146e (a) protects
records that identify a patient, the court in Falco stated:
‘‘Section 52-146e (a) specifically prohibits the disclo-
sure 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,14 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 informa-
tion.’’ (Emphasis added; footnote added.) Falco v. Insti-
tute of Living, supra, 254 Conn 329. That analysis is
clearly a statutory construction of the meaning and
scope of the protection afforded to identifying records,
regardless of how the majority chooses to characterize
it. Consistent with this court’s decision in Falco, there-
fore, because the hospital police reports at issue in the
present case identify the patient, they are privileged
records.
III
As I stated at the beginning of this opinion, the com-
bined effect of the majority’s two conclusions—that the
hospital police reports are not privileged communica-
tions or records thereof because they were prepared
by members of the hospital police and that identifying
records are not privileged pursuant to § 52-146e (a)—
guts the privilege of persons who receive mental health
treatment from public mental health care providers,
contrary to the intent of the legislature. The majority
ignores the reality of treatment at Whiting, namely, that
the hospital police, whose services provide a necessary
foundation for the provision of safe, quality care to
patients, routinely prepare reports that document inci-
dents that occur at the hospital. Some of those reports,
like those at issue in this appeal, include precisely the
type of information that the psychiatrist-patient privi-
lege is designed to protect. Undoubtedly, this same infor-
mation is also routinely documented in reports pre-
pared by staff members who directly provide mental
health and medical care to the patients. Under the rule
crafted by the majority, the second category of reports
are likely protected by the patient-psychiatrist privilege.
A member of the public may obtain the identical infor-
mation, however, simply by requesting the hospital
police reports. The majority’s rule thus allows the public
to circumvent the protections afforded to patients by
the psychiatrist-patient privilege.
The majority undermines the equal protection the
legislature sought to afford to those receiving treatment
from public mental health care providers by declining
to give effect to the extensive statutory protections
given to records that identify a patient. No consent was
given, or even sought, for the release of the patient’s
privileged identifying records. No statutory exception
applies. Yet, the majority orders the release of the
records despite the commission’s finding that those
requesting them knew the patient’s name.
Finally, I observe that the majority opinion is contrary
to the principal purpose of the psychiatrist-patient privi-
lege, which 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.’’
State v. White, 169 Conn. 223, 234–35, 363 A.2d 143,
cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d
399 (1975). No one should be deterred from receiving
treatment from a public mental health care provider
due to fears that his or her private information is less
protected because he or she cannot afford treatment
from a private provider. In addition to the risk that
embarrassing, acutely personal information may be
revealed, persons seeking mental health treatment risk
the stigma grafted onto the mentally ill by our society.
Unfortunately, that stigma persists, and its effects are
devastating to our societal mental health. In 1999, the
Surgeon General of the United States reported: ‘‘The
stigma that envelops mental illness deters people from
seeking treatment. Stigma assumes many forms, both
subtle and overt. It appears as prejudice and discrimina-
tion, fear, distrust and stereotyping. It prompts many
people to avoid working, socializing, and living with
people who have a mental disorder. Stigma impedes
people from seeking help for fear that the confidential-
ity of their diagnosis or treatment will be breached.
. . . Powerful and pervasive, stigma prevents people
from acknowledging their own mental health problems,
much less disclosing them to others.’’ U.S. Dept. of
Health & Human Services, Mental Health: A Report of
the Surgeon General (1999) p. 454, available at https://
profiles.nlm.nih.gov/spotlight/nn/catalog/nlm:nlmuid-
101584932X120-doc (last visited August 21, 2023). Rele-
vant to many patients in Whiting, ‘‘involuntary commit-
ment and hospitalization generally have been found
to have an even greater stigmatizing effect than being
perceived as mentally ill or receiving outpatient treat-
ment.’’ A. Bornstein, Note, ‘‘The Facts of Stigma: What’s
Missing from the Procedural Due Process of Mental
Health Commitment,’’ 18 Yale J. Health Policy, L. &
Ethics 127, 137 (2018). Hospital police and other secu-
rity providers in mental health institutions often inter-
vene when a patient is exhibiting severe and concerning
behaviors that treatment seeks to prevent or control.
If such information is so easily exposed to the public,
how do we as a society protect a recovered person’s
reputation and guarantee that person a future free of
societal stigma? Undercutting the level of protection
afforded to those who receive care from public mental
health care providers risks increasing the effect of
stigma in deterring people from seeking treatment.
For the foregoing reasons, I respectfully dissent.
1
The Commissioner of Mental Health and Addiction Services is also a
plaintiff. In the interest of simplicity, I refer in this opinion to the Department
of Mental Health and Addiction Services as the plaintiff.
2
General Statutes § 52-146e (a) provides: ‘‘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.’’
3
General Statutes § 52-146d (2) provides: ‘‘ ‘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 psychiatric mental health provider, or between a member of the
patient’s family and a psychiatric mental health provider, or between any
of such persons and a person participating under the supervision of a psychi-
atric mental health provider 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 . . . .’’
Although § 52-146d was the subject of technical amendments in 2019; see
Public Acts 2019, No. 19-98, § 24; those amendments have no bearing on
the merits of this appeal. In the interest of simplicity, I refer to the current
revision of the statute.
4
There is no support for the majority’s assertion that this court has charac-
terized the psychiatrist-patient privilege as ‘‘broad’’ because § 52-146d (2)
defines communications to include exchanges between three different sets
of communicants. That assertion minimizes the significance of our character-
ization of the privilege as broad. The privilege provides broad protection
and included within that principle is that exceptions are construed narrowly.
See, e.g., Falco v. Institute of Living, 254 Conn. 321, 328, 757 A.2d 571 (2000).
5
The majority accuses me of ‘‘miss[ing] the mark’’ for criticizing it for
providing indigent persons with less protection than those who can afford
to obtain treatment from a private mental health care provider and claims
that the differential treatment is simply the result of the application of FOIA.
The majority’s discussion of the tension between the two statutory schemes
implicitly assumes that FOIA is an exception to the psychiatrist-patient
privilege, fails to address the lack of such an exception in §§ 52-146f through
52-146i, and fails to account for the legislature’s stated policy of providing
the same level of protection to patients receiving treatment from public and
private mental health care providers. Accordingly, although the majority
claims that ‘‘[§] 52-146e (a) has the same coverage and limitations regardless
of whether the patient seeks treatment at a state operated mental health
treatment facility or a private hospital,’’ that is no longer true because
the majority has added an exception to § 52-146e (a): FOIA. See State v.
Whiteman, 204 Conn. 98, 103, 526 A.2d 869 (1987) (‘‘[i]n areas where the
legislature has spoken . . . the primary responsibility for formulating pub-
lic policy must remain with the legislature’’). It is therefore the majority’s
failure to give effect to the intent of the legislature, as evidenced by the
legislative history of No. 819, § 1, of the 1969 Public Acts, as well as its
failure to consider statutes related to and, in fact, expressly referenced by
§ 52-146e (a), that result in the lower level of protection afforded to indigent
persons in this state who must receive mental health treatment from public
mental health care providers. See General Statutes § 1-2z (‘‘[t]he meaning
of a statute shall, in the first instance, be ascertained from the text of the
statute itself and its relationship to other statutes’’).
The exception to disclosure under FOIA for records that would compro-
mise security at Whiting; see General Statutes § 1-210 (b) (18); has no bearing
on this issue. That exception references materials such as security manuals,
including emergency plans contained or referred to therein, engineering and
architectural drawings of Whiting’s facilities, operational specifications of
security systems, training manuals, internal security audits, minutes or
recordings of staff meetings and logs or documents revealing the movement
of patients. See General Statutes § 1-210 (b) (18) (A) through (G). The
mere fact that FOIA provides an exception to disclosure for these types of
materials in relation to Whiting does not support the proposition that FOIA
is an exception to the psychiatrist-patient privilege.
6
This court’s holding in Freedom of Information Officer that records
documenting medical treatment relate to a patient’s mental health treatment;
Freedom of Information Officer, Dept. of Mental Health & Addiction Ser-
vices v. Freedom of Information Commission, supra, 318 Conn. 790–91;
logically extends to records that document information relating to the diag-
nosis of a medical condition.
7
The majority reasons that this requirement is met only if those who
prepared the records were participating in the accomplishment of the objec-
tives of diagnosis and treatment at the time that they prepared the records.
The insertion of this language into § 52-146d (2) gratuitously narrows its
scope, inconsistent with this court’s repeated recognition that this court
construes the privilege broadly. See Falco v. Institute of Living, supra, 254
Conn. 328. Section 52-146d (2) requires only that this group of communicants
are persons ‘‘participating under the supervision of a psychiatric mental
health provider in the accomplishment of the objectives of diagnosis and
treatment . . . .’’ As I have observed, Lejardi’s testimony supports the con-
clusion that even the more narrow definition of this class of communicants
is met in the present case. As a matter of statutory interpretation, however,
I disagree with the majority’s narrow reading of § 52-146d (2).
8
General Statutes § 52-146d (4) defines ‘‘identifiable’’ and ‘‘identify a
patient’’ as ‘‘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 . . . .’’
9
I disagree with the majority’s suggestion that we may not consider this
language in § 52-146e (a). The plaintiff has relied on § 52-146e (a) as support
for its claim that the hospital police reports are privileged and has relied
specifically on the statute’s protection of records that identify a patient.
That claim requires us to construe and apply the statutory language, including
the second sentence of § 52-146e (a), to determine whether the plaintiff
properly has refused disclosure on the basis of § 52-146e (a).
10
The term ‘‘resume’’ is not defined in the statutory scheme. One dictionary
defines ‘‘resume’’ as ‘‘a summing up: a condensed statement . . . .’’ Web-
ster’s Third New International Dictionary (2002) p. 1937.
11
Even in the more compelling context of a criminal defendant’s claim
that the failure to disclose a witness’ psychiatric records violates the defen-
dant’s right to confrontation, the records may not be disclosed without the
witness’ consent. See, e.g., State v. Slimskey, 257 Conn. 842, 855, 779 A.2d
723 (2001) (following in camera review of records, if court determines
records are probative of witness’ credibility, state must obtain witness’
waiver of privilege prior to disclosure). If the witness refuses to consent to
disclosure of probative psychiatric records, the testimony of the witness is
stricken. Id., 855–56.
I acknowledge that a criminal defendant may be entitled to a witness’
psychiatric records in the absence of the consent of the witness when the
defendant claims that the privileged records are material to a claim of self-
defense. See, e.g., State v. Fay, 326 Conn. 742, 745–46, 167 A.3d 897 (2017).
The defendant’s burden in demonstrating that the privilege is overridden
by the defendant’s constitutional right to present a defense, however, is
high. Before a court may undertake an in camera review of the witness’
psychiatric records, ‘‘the accused first must demonstrate a compelling need
for the privileged records, a showing predicated on the relevance of the
records to the claim of self-defense, the potential significance of the records
in establishing that defense, and the unavailability of alternative sources of
similar information.’’ Id., 751. Members of the public filing FOIA requests
are not required to meet such a burden. Significantly, there was no claim
in the present case of a compelling need for the hospital police reports.
12
I note that, although the language of § 52-146e (a) suggests that §§ 52-
146f through 52-146i set forth exceptions to the consent requirement, § 52-
146i pertains only to the labeling of confidential records when they are dis-
closed.
13
Setting aside the legislature’s concerns about judicial discretion, there
is nevertheless a big difference between a court’s carefully applying the
privilege in a litigated case in which the person who is the subject of the
records, or an authorized representative thereof, will have notice and a right
to be heard, and the commission’s release of a person’s confidential records
to honor the interest of any random member of the public. The press (in
all of its varied permutations), coworkers, and even nosy neighbors can
easily manipulate access to someone’s psychiatric records if they know the
person’s name or sufficient details as to the timing of or certain occurrences
during the person’s hospitalization. There is no bar to subsequently naming
the patient when one files a request for records under FOIA. Only the keeper
of the records and the commission will be responsible for protecting the
patient’s identity at the time the disclosure is ordered.
14
Kovner and The Hartford Courant, for example, knew the name of the
patient in the present case. It was therefore impossible for the plaintiffs to
disclose the hospital police reports to them without identifying him.