Freedom of Information Officer, Dept. of Mental Health & Addiction Services v. Freedom of Information Commission ( 2015 )

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FREEDOM OF INFORMATION OFFICER v. FREEDOM OF INFORMATION
COMMISSION—CONCURRENCE
McDONALD, J., with whom PALMER, J., joins, con-
curring 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 eviden-
tiary privilege to foster and protect the free flow of
confidential information between a patient and her psy-
chiatrist 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 van-
quish the other and, in the process, deviates signifi-
cantly 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). Histori-
ans and others have been focused on her case for
decades. Her crimes have inspired several books, arti-
cles, 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 Hos-
pital, now Connecticut Valley Hospital (hospital) fol-
lowing 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 ordi-
narily expect that records held by mental health treat-
ment 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 con-
viction, 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 seek-
ing 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 privi-
leges and protections that intersect and, in some cases,
overlap to address privacy concerns that the legislature
has deemed worthy of protection.
In the present case, the defendant Freedom of Infor-
mation Commission (commission) ordered the release
of some of Gilligan’s records, but the department main-
tains 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 Stat-
utes § 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 Informa-
tion Commission, 181 Conn. 324, 328, 435 A.2d 353
(1980); Perkins v. Freedom of Information Commis-
sion, 228 Conn. 158, 166, 635 A.2d 783 (1993) (same);
Board of Education v. Freedom of Information Com-
mission, 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 excep-
tions 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 presump-
tion 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.’’ (Inter-
nal 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. 328. Indeed, that balanc-
ing effort must govern our interpretation and applica-
tion of the act in circumstances such as those presented
in the present case. Id., 328–29. In doing so, we presume
that the records should be disclosed, we construe any
exception to disclosure narrowly, and we place the
burden of proving the applicability of that narrowly
construed exception upon the agency advocating it.
Id., 329.
This principle of restraint applies equally to the psy-
chiatrist-patient privilege, which the legislature has
identified as an exception to the act. Although the privi-
lege 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 . . . . Accord-
ingly, 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 psychia-
trist-patient privilege is to safeguard confidential com-
munications or records of a patient seeking diagnosis
and treatment . . . so as to protect [the] therapeutic
relationship. . . . It therefore is axiomatic that [c]om-
munications that bear no relationship to the purpose
for which the privilege was enacted do not obtain shel-
ter 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 Gilli-
gan’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 psy-
chiatric-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 require-
ments 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 recog-
nize 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 communica-
tion 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 lan-
guage of its enabling statute, I concur in part and dissent
in part.
I
PSYCHIATRIC COMMUNICATIONS PRIVILEGE
The psychiatrist-patient privilege is entirely a crea-
ture of statute. See General Statutes § 52-146e. There-
fore, 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 diag-
nosis 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 partici-
pating 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 pur-
pose 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, 818–19
(psychiatrist’s evaluation of children undertaken to
advise parent in custody dispute was not privileged
because children were not being treated by psychia-
trist); see also State v. Montgomery, supra, 254 Conn.
725 (communication between patient and acquaintance
not protected, even though made at inpatient psychiat-
ric 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 Informa-
tion 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 inspec-
tion 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 docu-
ments, standing alone, do not demonstrate that they
are privileged, however, the proponent can present tes-
timony 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 exemp-
tion applies to the materials requested.’’ (Internal quota-
tion marks omitted.) Lash v. Freedom of Information
Commission, supra, 517–18; see also Bieluch v. Bie-
luch, supra, 190 Conn. 819 (psychiatric privilege does
not apply if proponent fails to establish necessary evi-
dentiary 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 relat-
ing to Gilligan’s medical and dental care that may be
privileged and should be reconsidered by the commis-
sion. 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 docu-
ments, 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 ‘‘diagno-
sis 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 dis-
charge 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 depart-
ment’s own witness testified at a hearing before the
commission that certain documents were not psychiat-
ric records, including the correspondence with Gilli-
gan’s daughter. Without any evidence relating these
documents to Gilligan’s psychiatric diagnosis or treat-
ment, the department did not provide a factual predi-
cate 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 communi-
cations 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 psychia-
trist’s supervision. General Statutes § 52-146d (2); see
also State v. Montgomery, supra, 254 Conn. 724. One
of the documents is a letter addressed to a representa-
tive of a life insurance company, and there is no evi-
dence 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 corre-
spondence with the insurance company that demon-
strate 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 depart-
ment withheld is that it mentions Gilligan’s psychiatric
diagnosis in response to the insurance company’s
inquiry about whether Gilligan could transact business
relating to the dividends. But, because the letter is a
communication to a third party who is not covered
under the reach of the statute, it cannot fall within the
privilege. State v. Montgomery, supra, 724. The trial
court’s judgment affirming the commission’s decision
to permit the release of these documents should be
affirmed.
C
The third category of documents, which pertains to
Gilligan’s medical and dental care, presents a more diffi-
cult 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 men-
tal 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 psychiat-
ric 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, irrespec-
tive of whether they actually related to Gilligan’s psychi-
atric 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 communi-
cations ‘‘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 Stat-
utes § 52-146d (5).
The department argues that records of physical and
dental examinations relate to psychiatric treatment
because psychiatric illnesses sometimes involve physi-
cal 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 psy-
chiatric 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 physi-
cal 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 unre-
markable 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 dif-
ferentiate between treatment for physical and mental
conditions. For example, the physician-patient privi-
lege—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 men-
tion 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 provi-
sion, 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 simi-
larly 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 propo-
nent of the privilege can present testimony or other
extrinsic evidence to demonstrate that records other-
wise appearing to be purely medical and dental in nature
nevertheless relate to the patient’s psychiatric care. For
example, in State v. Jenkins, supra, 73 Conn. App. 162,
the Appellate Court held that a record labeled ‘‘nursing
assessment’’ that contained biographical data qualified
as a psychiatric record because a psychiatrist from the
treating facility specifically testified that all of the infor-
mation in the assessment was used to ‘‘gather informa-
tion 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 pre-
sent some evidence to show that a document meets the
statutory requirements. Lash v. Freedom of Informa-
tion Commission, supra, 300 Conn. 517–18. In light of
this clarification, I would remand the matter back to
the commission for further consideration of Gilligan’s
medical and dental records under this standard. This
would permit the commission to consider extrinsic evi-
dence and determine whether, in light of that evidence,
any of the remaining documents should be redacted or
withheld under the psychiatric privilege or any other
privilege that the department may properly raise.1
D
There is one additional point I must address with
respect to the psychiatric privilege. As a fallback posi-
tion, 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 psychi-
atric 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 psychiat-
ric-patient privilege statute; General Statues § 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 dis-
closing ‘‘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 defini-
tion, § 52-146e (a) does not prohibit the disclosure of
the record or its substance.
For example, in State v. Montgomery, supra, 254
Conn. 723, a mental health assistant (assistant) was
permitted to testify about patient conversations that
she overheard even though her testimony identified the
defendant as a psychiatric inpatient. The defendant in
that case had committed a murder and, before he could
be identified by police as the murderer, he checked
himself into a psychiatric hospital, apparently because
he was suicidal. Id., 711 and n.27. The hospital placed
him under the watch of an assistant, who constantly
monitored his activities. Id., 722–23. While at the hospi-
tal, the defendant called an acquaintance and the assis-
tant overheard the defendant telling the acquaintance
to provide him with an alibi for the time of the murder.
Id., 723. The assistant was allowed to testify before the
court, initially outside the presence of the jury, that the
defendant was treated at the psychiatric hospital where
she worked; that a psychiatrist had instructed her to
monitor the defendant on a ‘‘ ‘one-to-one’ ’’ basis and
to take notes of his activities every fifteen minutes; and
that such protocol was typical for suicidal patients. Id.,
722–23. She also testified about the substance of the
defendant’s telephone call. The trial court allowed her
testimony and she repeated much of this same informa-
tion 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 psychi-
atric hospital and reminded jury of testimony given by
assistant that she had to remain within arm’s reach of
defendant and that she overheard certain telephone
conversation). Following his conviction for murder, the
defendant appealed to this court and claimed that the
assistant’s testimony violated the psychiatric-patient
privilege. State v. Montgomery, supra, 723. This court
upheld the admission of the testimony because the com-
munications revealed by the assistant’s testimony did
not meet the definition of protected communications
and records. Id., 725. Specifically, we concluded that
the communications did not relate to the defendant’s
diagnosis and treatment and, in addition, were not made
to a party covered by the statute. Id. The department’s
interpretation of communications and records in the
present case, however, would have precluded the assis-
tant’s testimony in its entirety in Montgomery because
it identified the defendant as a psychiatric patient, thus
rendering our holding in Montgomery invalid.
In support of its interpretation, the department cites
Falco v. Institute of Living, 254 Conn. 321, 757 A.2d 571
(2000). In Falco, the plaintiff, a patient at the Institute of
Living (Institute), a psychiatric facility, wanted to bring
an action against a patient who had assaulted him at
the Institute, but he did not know the other patient’s
identity. Id., 323–24. The plaintiff sent a bill of discovery
to the Institute demanding that it produce 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., 328–29.
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 informa-
tion sought actually fit within the statutory definition
of protected communications and records. Id., 326–29.
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 communica-
tions and records. We explained that ‘‘[t]he confidential-
ity 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., 329. 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 mur-
der 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 hospi-
tal ‘‘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, physi-
cally, 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 Bie-
luch v. Bieluch, supra, 190 Conn. 819 (‘‘[c]ommunica-
tions 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 nonconfiden-
tial information at issue in the present case.
Finally, the department also cites our prior observa-
tions 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. Communica-
tions 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 omit-
ted.) State v. Montgomery, supra, 254 Conn. 724. Simi-
larly, 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 & Ben-
efits 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 privi-
lege 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 depart-
ment’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 inva-
sion 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 docu-
ments 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 pro-
tect the documents.2
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 pro-
tected by this exemption, we historically have looked to
the invasion of privacy tort in § 652D of the Restatement
(Second) of Torts. 3 Restatement (Second), Torts
§ 652D (1977). In Perkins v. Freedom of Information
Commission, supra, 228 Conn. 175, this court explored
in detail the contours of the personal privacy exemption
in § 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., 169;
see also General Statutes § 1-1 (a) (requiring us to con-
strue statutory references to legal terms of art consis-
tently 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 Infor-
mation Commission, supra, 171; and that the relation-
ship between the exemption and the common-law tort
was ‘‘close and compelling.’’ Id., 173. 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., 171–73. I there-
fore turn to the Restatement (Second) for guidance.
The Restatement (Second) provides that an action
for invasion of personal privacy is personal to the indi-
vidual, 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 inva-
sion of privacy can be maintained only by a living indi-
vidual 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 per-
mits 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 undis-
puted 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 exemp-
tion 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 accompa-
nying commentary of § 652D of the Restatement (Sec-
ond) of Torts for the tort of invasion of privacy, the
court in Perkins concluded that the exemption ‘‘pre-
cludes disclosure . . . only when [1] the information
sought by a request does not pertain to legitimate mat-
ters of public concern and [2] is highly offensive to a
reasonable person.’’ Perkins v. Freedom of Information
Commission, supra, 228 Conn. 175. The department
has not shown that either element applies here.
Turning to the first part of the test, I am persuaded
that the department has not met its burden to show a
lack of a legitimate public interest. The commission
found, as a matter of fact, that legitimate public interest
remains concerning Gilligan, her crimes, and her nearly
four decade confinement at the hospital. The record
supports this finding. The complainant filed an uncon-
troverted 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 pro-
ceedings, including charging documents, trial tran-
scripts, and appellate briefs.3 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 his-
torically has treated its mentally ill criminals. Even
though a substantial amount of time has passed since
Gilligan’s crimes in the early 1900s and her death in
1962, that does not alone eliminate the legitimacy of
the public’s interest, especially in light of the continued
attention her case has received from historians and
authors. See 3 Restatement (Second), supra, § 652D,
comment (k), p. 393 (‘‘[p]ast events and activities may
still be of legitimate interest to the public, and a narra-
tive 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 oth-
erwise 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 endur-
ing and legitimate public interest in the case of a notori-
ous serial killer and the state’s confinement of, and
care for, her after her conviction is reasonable and not
contrary to law, and, therefore, must be sustained. See
Perkins v. Freedom of Information Commission,
supra, 228 Conn. 164–65 (‘‘[t]he court’s ultimate duty
is only to decide whether, in light of the evidence, the
[agency] has acted unreasonably, arbitrarily, illegally,
or in abuse of its discretion’’ [emphasis omitted; internal
quotation marks omitted]).
Moreover, the department has not proven that the
release of Gilligan’s records would be highly offensive
to a reasonable person. Gilligan is long deceased. Even
assuming, arguendo, that death does not extinguish the
decedent’s privacy rights, it certainly must diminish
them. And when, as here, the records pertain to a public
figure, it is permissible to publicize otherwise private
matters that one could not publicize about a nonpublic
figure. See 3 Restatement (Second), supra, § 652D, com-
ment (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 com-
munity 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 administra-
tive 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.
1
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 Corpora-
tion Counsel, Freedom of Information Commission, Docket No. FIC 2011-
370 (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.
2
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 major-
ity 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.
3
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.