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COMMISSIONER OF MENTAL HEALTH & ADDICTION SERVICES v.
FREEDOM OF INFORMATION COMMISSION—CONCURRENCE
AND DISSENT
ROBINSON, C. J., concurring in part and dissenting
in part. I respectfully disagree with part III A of the
majority opinion, in which the majority concludes that
the police case/incident report (police report) created
by the police department of the plaintiff Department
of Mental Health and Addiction Services (DMHAS) does
not fall within the definition of ‘‘communications and
records,’’ as used in the psychiatrist-patient privilege
statute, General Statutes § 52-146e (a),1 which would
exempt it from disclosure under the Freedom of Infor-
mation Act (FOIA), General Statutes § 1-200 et seq.
Instead, guided by our recent decision in the ‘‘Arsenic
and Old Lace’’ case, Freedom of Information Officer,
Dept. of Mental Health & Addiction Services v. Freedom
of Information Commission, 318 Conn. 769, 771, 122
A.3d 1217 (2015), I conclude that the police report in
the present case consists of written documentation by
DMHAS police officers and oral statements made by
staff members and responding officers at the Whiting
Forensic Division of Connecticut Valley Hospital (Whit-
ing), arising out of and relating to a mental health inci-
dent that occurred during a patient’s treatment, and is
thus a ‘‘record’’ of such communications, as defined by
General Statutes § 52-146d (2).2 Unlike the majority, I
would order the redaction of the deceased patient’s
psychiatric diagnosis, in addition to the names, addresses,
and phone numbers of the two patients referenced in
the police report. Because I nevertheless conclude that
disclosure of the police report in redacted form is
required by law pursuant to FOIA, I also conclude that
it is not subject to the nondisclosure provisions of the
Health Insurance Portability and Accountability Act of
1996 (HIPAA), 42 U.S.C. § 1320d et seq., as implemented
by the Privacy Rule, 45 C.F.R. § 160.101 et seq. See
General Statutes § 1-210 (a).3 Accordingly, I respectfully
dissent in part.
I note my agreement with the majority’s recitation
of the facts, procedural history, and governing legal
principles, as set forth by, among other authorities,
Freedom of Information Officer, Dept. of Mental
Health & Addiction Services v. Freedom of Information
Commission, supra, 318 Conn. 769, and General Stat-
utes § 1-2z. See parts I and II of the majority opinion.
I also agree with the majority’s conclusion that the
phrase in § 52-146d (2), ‘‘wherever made, including com-
munications and records which occur in or are prepared
at a mental health facility,’’ does not include all commu-
nications and records of communications created in a
mental health facility, regardless of between whom they
are made. See part III A 1 of the majority opinion.
I write separately because I believe that our recent
interpretation of the term ‘‘communications and
records’’ in Freedom of Information Officer, Dept. of
Mental Health & Addiction Services v. Freedom of
Information Commission, supra, 786–91 and n.8, is
dispositive as to whether the police report in question
falls within the ambit of § 52-146d (2). See, e.g., State
v. Lopez, 341 Conn. 793, 802, 268 A.3d 67 (2022) (‘‘[w]e
have previously construed the meaning of the [statu-
tory] phrase . . . and are guided by that precedent’’);
Boardwalk Realty Associates, LLC v. M & S Gateway
Associates, LLC, 340 Conn. 115, 126, 263 A.3d 87 (2021)
(‘‘[i]n construing [the statute], we do not write on a
clean slate, but are bound by our previous judicial inter-
pretations of this language and the purpose of the stat-
ute’’ (internal quotation marks omitted)).
At the outset, I emphasize that records produced by
a state mental health institution’s police department
reflect a unique tension between two important inter-
ests, namely, the protection of patient privacy under the
psychiatrist-patient privilege and ensuring government
transparency under FOIA. On the one hand, the psychia-
trist-patient privilege’s purpose is to safeguard confi-
dential communications and records of a patient seek-
ing diagnosis and treatment to protect the therapeutic
relationship. See, e.g., State v. White, 169 Conn. 223,
234–35, 363 A.2d 143 (principal purpose of privilege
is to give patient incentive to make full disclosure to
physician to obtain effective treatment free from embar-
rassment and invasion of privacy), cert. denied, 423
U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975); see
also Falco v. Institute of Living, 254 Conn. 321, 328–29,
757 A.2d 571 (2000) (protection of communications that
identify patient is ‘‘central’’ to purpose of statute). On
the other hand, the core legislative policy of FOIA is
‘‘one that favors the open conduct of government and
free public access to government records.’’ (Internal
quotation marks omitted.) Meriden v. Freedom of Infor-
mation Commission, 338 Conn. 310, 321, 258 A.3d 1
(2021); see, e.g., Director, Retirement & Benefits Ser-
vices Division v. Freedom of Information Commis-
sion, 256 Conn. 764, 772–73, 775 A.2d 981 (2001) (court
interprets exemptions to act narrowly considering ‘‘[the]
overarching policy underlying [FOIA] favoring the disclo-
sure of public records’’ (internal quotation marks omit-
ted)). Thus, competing considerations between pro-
tecting patient confidentiality and favoring the disclosure
of public records require us to apply the psychiatric-
patient privilege ‘‘cautiously and with circumspection’’
to achieve the proper balance between the rights to
personal privacy and to inspect government records.
(Internal quotation marks omitted.) State v. Montgom-
ery, 254 Conn. 694, 724, 759 A.2d 995 (2000).
Our recent decision in the Arsenic and Old Lace case,
Freedom of Information Officer, Dept. of Mental
Health & Addiction Services v. Freedom of Information
Commission, supra, 318 Conn. 769, interpreted the
phrase in § 52-146d (2), ‘‘ ‘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,’ ’’ and concluded
that the medical and dental records contained in a
deceased patient’s file fell within its purview. Id., 783.
In that case, the Freedom of Information Commission
(commission) argued that there was no distinction
between documents related to psychiatric care and
those related to medical treatment at a mental health
facility for purposes of the psychiatrist-patient privi-
lege. Id., 780. We agreed because ‘‘all of the documents
at issue were created during care for a patient at an
inpatient mental health facility . . . .’’ Id. We also
deemed certain administrative documents privileged
‘‘because they contain[ed] identifying information and
information related to [the patient’s] diagnosis.’’ Id.,
789 n.8.
Additionally, we recognized that General Statutes
§ 17a-545, which requires inpatient mental health facili-
ties to conduct physical examinations of patients,
reflects a legislative judgment that ‘‘mental health con-
ditions are often related to physical disorders and that
the proper treatment of mental health involves the treat-
ment of physical issues, as well.’’ Id., 790–91. Although,
as the majority points out, the definition of ‘‘communi-
cations and records’’ was not at issue in Falco v. Insti-
tute of Living, supra, 254 Conn. 321; see part III A 1 of
the majority opinion; we nevertheless relied on that
case for the proposition that the legislative purpose
behind the psychiatrist-patient privilege recognizes
‘‘ ‘that a stigma may attach to one who seeks psychiatric
care, and that revealing a patient’s identity may subject
[the individual] to embarrassment, harassment or dis-
crimination.’ ’’ Freedom of Information Officer, Dept.
of Mental Health & Addiction Services v. Freedom of
Information Commission, supra, 318 Conn. 787 n.8,
quoting Falco v. Institute of Living, supra, 329. We
likewise ‘‘refuse[d] 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.’’ Freedom of Informa-
tion Officer, Dept. of Mental Health & Addiction Ser-
vices v. Freedom of Information Commission, supra,
786 n.8. Ultimately, this court’s ‘‘understanding of the
broad veil of secrecy created by the psychiatrist-patient
privilege’’; id., 791; supported our conclusion that, although
not communications directly between a patient or fam-
ily member and a psychiatrist, the medical and dental
records in the Arsenic and Old Lace case satisfied the
statutory definition of ‘‘communications and records’’ in
§ 52-146d (2) because there was evidence ‘‘that the medical
and dental records at issue were created at the hospital
during [the patient’s] inpatient treatment,’’ were related
to the objectives of the patient’s diagnosis and treat-
ment, and were made ‘‘under the direction of a psychia-
trist,’’ who was ‘‘the superintendent of the facility at the
time [the patient]’’ was receiving treatment. Id., 785–86.
This court also has generally interpreted the psychia-
trist-patient ‘‘privilege broadly and its exceptions nar-
rowly.’’ State v. Fay, 326 Conn. 742, 751, 167 A.3d 897
(2017); see State v. Jenkins, 73 Conn. App. 150, 162, 807
A.2d 485 (2002) (all information in nursing assessment
conducted under supervision of psychiatrist, ‘‘even the
biographical data, [was] used . . . to gather informa-
tion about mental health issues’’ and, thus, was ‘‘a men-
tal health record’’ (emphasis added; internal quotation
marks omitted)), rev’d in part on other grounds, 271
Conn. 165, 856 A.2d 383 (2004). It is well established
that ‘‘[t]he people of this state enjoy a broad privilege in
the confidentiality of their psychiatric communications
and records . . . .’’ (Internal quotation marks omitted.)
Freedom of Information Officer, Dept. of Mental
Health & Addiction Services v. Freedom of Information
Commission, supra, 318 Conn. 784. This court repeat-
edly has recognized that the psychiatrist-patient ‘‘privi-
lege covers not only communications between the patient
and [the] 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.’’ (Emphasis added; internal
quotation marks omitted.) State v. Kelly, 208 Conn. 365,
379, 545 A.2d 1048 (1988); see Freedom of Information
Officer, Dept. of Mental Health & Addiction Services
v. Freedom of Information Commission, supra, 786
n.8; see also General Statutes § 52-146d (2).
Turning to the record in this case, I observe that it
is undisputed that, although members of the DMHAS
police department perform traditional law enforcement
functions,4 they are also specially trained to work with
patients and mental health care providers at Whiting.
See Public Safety Division, Dept. of Mental Health &
Addiction Services, DMHAS Police, available at https://
portal.ct.gov/DMHAS/Divisions/Safety-Services/DSS-Public-
Safety-Police (last visited August 25, 2023). DMHAS police
officers regularly interact with Whiting patients and
are familiar with, among other things, their behaviors,
reasons for admission to the facility, and psychiatric
symptom triggers, as well as de-escalation techniques.
The record indicates that DMHAS police officers may
use that specialized training in connection with a police
intervention at Whiting, and my own in camera review
of the police report at issue reveals that DMHAS police
officers, in responding to a ‘‘code’’ alarm activated at
a nurse’s station, acted in their capacity as part of the
psychiatric treatment team, rather than in a purely law
enforcement capacity. In fact, consistent with their role
at DMHAS facilities, and unlike the responding nurses
and emergency medical personnel, no officer provided
emergency medical treatment to the patient upon arrival.
Moreover, Whiting’s superintendent, with overall super-
visory responsibility over operations at that facility, was
a forensic psychiatrist at the time that the incident
occurred and the record was created. See Freedom of
Information Officer, Dept. of Mental Health & Addic-
tion Services v. Freedom of Information Commission,
supra, 318 Conn. 785–86 (relying on fact that superinten-
dent of inpatient facility during patient’s treatment was
psychiatrist in concluding that privilege extended to
records pertaining purely to medical care).
Therefore, I conclude that the police report was cre-
ated by the DMHAS police officers who acted in con-
junction with and as part of the psychiatric treatment
staff. I also conclude that the police report relates to the
diagnosis or treatment of a patient’s mental condition
because it documents statements and writings that
divulge the patient’s diagnosis and the occurrence of
a mental health incident during psychiatric treatment.
Accordingly, because the police report in this case con-
sists of written testimonials by DMHAS police officers
documenting oral statements made by the hospital staff
members, responding officers, and another patient, aris-
ing out of and relating to the mental health incident of
a patient during treatment, I conclude that it is a ‘‘record’’
of such communications made between persons partici-
pating under the supervision of a psychiatric mental
health provider pursuant to § 52-146d (2). The commis-
sion’s determination otherwise is not supported by sub-
stantial evidence in the record and is a clear error of law.
Although we held in Freedom of Information Officer,
Dept. of Mental Health & Addiction Services v. Freedom
of Information Commission, supra, 318 Conn. 769, that
all medical and dental records, including administrative
records, contained in a patient’s file were privileged ‘‘com-
munications and records’’; see id., 786; see also id., 796
(McDonald, J., concurring in part and dissenting in part);
I emphasize that I do not believe that all police reports
created by the DMHAS police department fall within
the scope of § 52-146d (2). The broad veil of confidenti-
ality the law recognizes by the psychiatrist-patient privi-
lege, although intended to protect the privacy of patients
undergoing psychiatric treatment, may well be used
improperly to conceal alleged abuse and other physical
and psychological harms in psychiatric institutions. See
M. Shields et al., ‘‘Patient Safety in Inpatient Psychiatry:
A Remaining Frontier for Health Policy,’’ 37 Health Aff.
1853, 1853–54, 1858 (2018).
Because I conclude that the police report does not
fall within the ‘‘communications and records’’ protected
by the psychiatrist-patient privilege, I next reach the
issue of whether a redacted version of the police report
can be disclosed without violating the privilege, and,
more specifically, whether the trial court had the
authority to order the disclosure of the police report
with redactions pursuant to FOIA.
Pursuant to FOIA, all nonprivileged ‘‘records main-
tained or kept on file by any public agency . . . shall
be public records . . . .’’ General Statutes § 1-210 (a);
see footnote 3 of this opinion. Section 52-146e (a), how-
ever, provides in relevant part that ‘‘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.’’ Although communi-
cations bearing ‘‘no relationship to the purpose for
which the privilege was enacted do not obtain shelter
under the statute and are’’ otherwise subject to disclo-
sure, we have acknowledged that shielding the identity
of psychiatric facility patients is ‘‘central to the purpose
of the statute.’’ (Internal quotation marks omitted.)
Freedom of Information Officer, Dept. of Mental
Health & Addiction Services v. Freedom of Information
Commission, supra, 318 Conn. 784. Thus, this court
has agreed with the proposition that state agencies have
discretion, under some circumstances, to redact infor-
mation exempt from public disclosure when complying
with FOIA. See Pictometry International Corp. v. Free-
dom of Information Commission, 307 Conn. 648, 663,
59 A.3d 172 (2013).
Section 52-146d (4) explains that communications
and records ‘‘ ‘identify a patient’ ’’ when they contain
‘‘names or other descriptive data from which a person
acquainted with the patient might reasonably recognize
the patient as the person referred to, or . . . codes or
numbers which are in general use outside of the mental
health facility which prepared the communications and
records . . . .’’ Information that identifies a patient
includes, inter alia, names, last known addresses, social
security numbers, and zip codes. See Falco v. Institute
of Living, supra, 254 Conn. 323; Connecticut State Med-
ical Society v. Commission on Hospitals & Health
Care, 223 Conn. 450, 459, 612 A.2d 1217 (1992). Our case
law instructs us to apply this framework objectively
because ‘‘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 [v. Institute of Living, supra, 331], ‘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.’ ’’ Freedom of Information Officer, Dept.
of Mental Health & Addiction Services v. Freedom of
Information Commission, supra, 318 Conn. 789 n.8.
Therefore, I look only to the four corners of the police
report to determine whether it identifies a patient,
rather than considering information therein in conjunc-
tion with other information already available to the pub-
lic.
My in camera review of the unredacted police report
reveals that it contains, among other things, the patient’s
name, another patient’s name, the patient’s psychiatric
condition, and the patient’s physical condition at the
time of the incident. It also includes descriptions of
emergency medical care that was rendered to the patient
by Whiting staff and other emergency medical providers.
Although the majority concludes that, simply because
the FOIA request ‘‘stat[ed] that ‘[a]ll references to the
identity of a patient can be redacted,’ ’’ the patients’ names,
birthdates, and home phone numbers in the police
report must be redacted; part III A 2 of the majority
opinion; I would further direct that the patient’s psychi-
atric diagnosis be redacted before the police report is
disclosed. Considering the nature of this particular police
report, the use of redactions to eliminate all references
to the patient’s name and other identifying information,
including information relating to the patients’ psychiatric
diagnosis, not only appropriately balances patient confi-
dentiality with the need for institutional transparency and
the purposes of FOIA, but also complies with the de-
identification procedure for disclosure under §§ 52-146d
(4) and 52-146e (a).5 See Freedom of Information Officer,
Dept. of Mental Health & Addiction Services v. Freedom
of Information Commission, supra, 318 Conn. 772–74
(trial court partially redacted two documents as to patient’s
diagnosis but incorrectly concluded that all other
records at issue could be disclosed under § 52-146e);
id., 789–90 n.8 (correspondence from hospital superin-
tendent to insurance company detailing patient’s diag-
nosis, psychiatric treatment, and mental state was
privileged); cf. Chalmers v. Ormond, Docket No. FST-
CV11-6007918-S, 2012 WL 1592191, *3 (Conn. Super.
April 17, 2012) (although psychiatric records could be
disclosed to counsel for parties pursuant to 42 C.F.R.
§ 2.64 (e), court instructed plaintiffs’ counsel to redact
references to patients’ mental, physical, and nutri-
tional condition).
Nevertheless, because I agree with the majority that
disclosure of the police report in a redacted form is
required by law under HIPAA, I agree that it must dis-
close a redacted report, albeit to a greater extent than
that ordered by the majority. Because I would direct
judgment ordering the commission to disclose the
police report redacting the patient’s psychiatric diagno-
sis, in addition to the names, birthdates, and phone
numbers of the patients in the police report, in accor-
dance with §§ 52-146d (4) and 52-146e (a), I respectfully
dissent in part.
1
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.’’
2
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. I refer to the current revision of the statute in the
interest of simplicity.
3
General Statutes § 1-210 (a) provides in relevant part: ‘‘(a) Except as
otherwise provided by any federal law or state statute, all records maintained
or kept on file by any public agency, whether or not such records are
required by any law or by any rule or regulation, shall be public records
and every person shall have the right to (1) inspect such records promptly
during regular office or business hours, (2) copy such records in accordance
with subsection (g) of section 1-212, or (3) receive a copy of such records
in accordance with section 1-212. . . .’’
4
The DMHAS police department provides ‘‘quality services through tradi-
tional law enforcement functions and safety and security management activi-
ties which are critical to maintaining compliance required for the Joint
Commission on Accreditation of Healthcare Organizations . . . and other
regulatory entities . . . .’’ Public Safety Division, Dept. of Mental Health &
Addiction Services, DMHAS Police, available at https://portal.ct.gov/DMHAS/
Divisions/Safety-Services/DSS--Public-Safety-Police (last visited August 25,
2023).
5
I acknowledge that my conclusion with respect to redaction positions the
records of patients receiving psychiatric care in public institutions somewhat
differently from those receiving psychiatric care in private facilities. This
differential treatment, however, is consistent with our understanding of the
legislature’s intent as we navigate the tensions inherent in the conflicting
relationship between §§ 1-210 and 52-146e (a). The trial court’s order that
the redacted police report be disclosed is consistent with the plain language
of the statutes and the legislature’s intent to ‘‘[allow] research and administra-
tion to proceed while safeguarding the confidentiality of the patient’s com-
munications,’’ by facilitating the transparency in the operation of state gov-
ernment institutions that are subject to FOIA while ensuring that ‘‘identifiable
psychiatric data’’ receive similar protection in both public and private institu-
tions. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1969 Sess.,
p. 92, remarks of Ben Bursten, a psychiatrist; see id., remarks of Bursten
(observing that § 52-146d (2) ‘‘represents a delicate balance between the
patient’s rights and the advantages offered by the new [computerized data
storage] technology’’). I recognize this balance, cognizant of the legislative
prerogative with respect to the formulation of public policy. See, e.g., Com-
mission on Human Rights & Opportunities v. Edge Fitness, LLC, 342
Conn. 25, 42, 268 A.3d 630 (2022) (‘‘we acknowledge that our analysis of
the plain and unambiguous statutory text . . . may lead to a result that
might well have been unintended by the legislature’’); Thibodeau v. Design
Group One Architects, LLC, 260 Conn. 691, 715, 802 A.2d 731 (2002) (‘‘we
are constrained to recognize the balance that the legislature has struck
between the state’s dual interest in policing and eliminating sex discrimina-
tion in employment, on the one hand, and protecting small employers from
the potentially heavy costs associated with defending against discrimination
claims, on the other’’).