Commissioner of Mental Health & Addiction Services v. Freedom of Information Commission ( 2023 )

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COMMISSIONER OF MENTAL HEALTH AND
ADDICTION SERVICES ET AL. v.
FREEDOM OF INFORMATION
COMMISSION ET AL.
(SC 20686)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Ecker, Keller and Cradle, Js.*
Syllabus
Pursuant to statute (§ 52-146e (a)), ‘‘communications and records as defined
in section 52-146d shall be confidential’’ and ‘‘no person may disclose
or transmit any communications and records or the substance or any
part or any resume thereof which identify a patient . . . without the
consent of the patient or his authorized representative.’’
Pursuant further to statute (§ 52-146d (2)), the phrase ‘‘communications and
records’’ is defined as ‘‘all oral and written communications and records
thereof relating to diagnosis or treatment of a patient’s mental condition
between the patient and a psychiatric mental health provider, or between
a member of the patient’s family and a psychiatric mental health pro-
vider, or between any of such persons and a person participating under
the supervision of a psychiatric mental health provider in the accomplish-
ment of the objectives of diagnosis and treatment, wherever made,
including communications and records which occur in or are prepared
at a mental health facility . . . .’’
The plaintiffs, the Commissioner of Mental Health and Addiction Services
and the Department of Mental Health and Addiction Services (DMHAS),
appealed to the trial court from the decision of the named defendant,
the Freedom of Information Commission (commission), which ordered
the disclosure, without redaction, of a police report to the defendant
newspaper and its reporter, which the reporter had requested pursuant
to the Freedom of Information Act (FOIA). The police report concerned
the death of a patient, P, after a medical event at the Whiting Forensic
Division of Connecticut Valley Hospital (Whiting), which is a maximum
security, mental health treatment facility operated by DMHAS. DMHAS
has its own police department, which is stationed at Whiting. The police
report consisted of a collection of investigative reports, authored by
DMHAS police officers, documenting the police department’s investiga-
tion into P’s death. In ordering disclosure, the commission concluded
that the police report was not exempt from disclosure under the provi-
sion (§ 1-210 (b) (10)) of FOIA that exempts from disclosure communica-
tions privileged by the doctor-patient or therapist-patient relationship
or any other common-law or statutory privilege. The commission rea-
soned that the police report did not relate to the diagnosis or treatment
of P’s mental health condition within the meaning of those terms, as
set forth in § 52-146d (2), insofar as the officers who prepared the report
had not participated in the diagnosis or treatment of P’s mental health
condition. The commission also concluded that disclosure of the police
report did not violate 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.), which generally prohibits a
‘‘covered entity’’ from disclosing protected ‘‘health information’’ without
a valid authorization. The trial court sustained in part the plaintiffs’
appeal from the commission’s decision. The court concluded that the
police report fell within the definition of ‘‘communications and records’’
in § 52-146d (2) because the report was prepared at a mental health
facility and related to the treatment of a patient’s mental health condi-
tion, but it nonetheless determined that the report could be disclosed
so long as anything therein that identified a patient was redacted in
accordance with § 52-146e (a). The court also concluded that, although
the police report was prepared by a ‘‘covered entity’’ and contained
‘‘health information’’ within the meaning of HIPAA and the Privacy Rule,
it could be released, pursuant to those provisions, only after references
to any patient’s identity and personally identifying health information
were redacted. Thereafter, the commission appealed and the plaintiffs
cross appealed from the trial court’s judgment, seeking a determination
as to whether the police report at issue was exempt from disclosure
under FOIA, either because it was protected by the psychiatrist-patient
privilege set forth in §§ 52-146d (2) and 52-146e (a), or by HIPAA and
the Privacy Rule. Held:
1. Although the police report itself was not exempt from disclosure under
§ 1-210 (b) (10) of FOIA, as it was not a privileged psychiatrist-patient
communication under §§ 52-146d (2) and 52-146e (a), this court ordered
the redaction of certain information contained therein prior to dis-
closure:
a. This court concluded that the police report was not a communication
or record thereof under § 52-146d (2):
It was clear from the plain language of §§ 52-146d (2) and 52-146e (a)
that the psychiatrist-patient privilege applies only to communications or
records thereof that relate to the diagnosis or treatment of a patient’s
mental health condition and that are between individuals who fall within
the three categories of communicants delineated in § 52-146d (2), namely,
the patient and a psychiatric mental health provider, a member of the
patient’s family and a psychiatric mental health provider, or one of
those individuals and a person participating under the supervision of a
psychiatric mental health provider in the accomplishment of the objec-
tives of the patient’s diagnosis and treatment.
Moreover, this court clarified that not every communication involving
or concerning a psychiatric patient necessarily relates to the diagnosis
or treatment of that patient’s mental health condition and rejected the
notion that its case law stood for the broad proposition that the psychia-
trist-patient privilege prohibits the disclosure of all communications and
records that are made or prepared at a mental health facility and that
identify a patient, regardless of the identities of the individuals between
whom the communication is made.
In the present case, the police report, which was prepared after P stopped
receiving treatment at Whiting, was not a part of P’s clinical file, and,
in view of the nature and timing of the postmortem investigation con-
ducted by the DMHAS police officers, it was clear that the officers who
prepared the report were not participating in the accomplishment of the
objectives of diagnosis and treatment when they prepared the report
but, instead, were performing the traditional law enforcement function
of investigating an untimely death.
Furthermore, there was no merit to the plaintiffs’ claim that the phrase
‘‘wherever made, including communications and records which occur
in or are prepared at a mental health facility’’ in § 52-146d (2) expanded
the definition of ‘‘communications and records’’ to encompass all commu-
nications and records that are made or prepared in a mental health
treatment facility and that relate to the diagnosis or treatment of a
patient’s mental condition, regardless of the identity of the individuals
between whom the communications are made, as the legislative history
and purpose of § 52-146d demonstrated that that phrase was not intended
to create a freestanding category of confidential communications and
records unique to mental health facilities but, instead, to clarify that the
psychiatrist-patient privilege was not limited to communications between
patients and private psychiatrists but also extended to communications
relating to psychiatric treatment provided at publicly funded institutions
that offer inpatient treatment.
In addition, in enacting FOIA, the legislature balanced competing princi-
ples concerning governmental transparency and patient confidentiality
and provided, as it deemed appropriate, for certain exemptions from
disclosure to protect patient confidentiality, and the decision as to
whether the public policy of this state would best be served by creating
a blanket exemption from disclosure of all records and documents relat-
ing to patients at Whiting rested with the legislature rather than this court.
b. There was substantial evidence in the administrative record to support
the commission’s finding that the police report was not a communication
or record thereof, as those terms are defined in § 52-146d (2):
The police report, which related to and was generated after the death
of a patient at Whiting, was not a communication between any of the
individuals who are included in the three categories of communicants
delineated in § 52-146d (2), as the report did not constitute a communica-
tion between a patient or a member of a patient’s family and a psychiatric
mental health provider, or between any such person and a person partici-
pating under the supervision of a psychiatric mental health provider in
the accomplishment of the objectives of the patient’s diagnosis and
treatment.
Rather, the police report was a communication between DMHAS police
officers tasked with investigating P’s death and an unknown recipient
or recipients.
Moreover, regardless of who the intended recipient of the police report
was, in view of the death of P, who was the subject of the report, it was
clear that the officers were not participating in the accomplishment of
the objectives of P’s diagnosis and treatment when they prepared the
report but, rather, were performing the traditional law enforcement func-
tion of investigating an untimely death and reporting the results of their
investigation, and this court could not conclude that the commission
acted arbitrarily, illegally, or in abuse of its discretion in determining
that the police report was not a communication or record within the
meaning of the statutory scheme.
Furthermore, although some DMHAS police officers responded to the
emergency medical event involving P, it was unclear whether they were
participating in their capacity as a member of the mental health treatment
team or, alternatively, performing the traditional law enforcement func-
tion of responding to an emergency, and, in light of that ambiguity, this
court could not substitute its own judgment for that of the commission.
Nevertheless, because the police report contained sensitive information
regarding the identity of two patients, namely, the names, dates of birth,
and home phone numbers of P and a second patient who witnessed the
medical event that led to P’s death, and because the newspaper reporter
explicitly stated in his FOIA request that all references to a patient’s
identity could be redacted, the commission improperly ordered the dis-
closure of that identifying information over the plaintiffs’ objection, and,
accordingly, this court ordered that all references to patient names, dates
of birth, and home phone numbers be redacted from the report prior
to disclosure.
2. The police report was not exempt from disclosure under HIPAA and the
Privacy Rule:
The commission’s interpretation of the Privacy Rule was not entitled to
deference, as the Privacy Rule was promulgated by the United States
Department of Health and Human Services, and such deference was not
warranted when, as in the present case, the agency interpreting the
regulation, namely, the commission, was not responsible for its promul-
gation.
The Privacy Rule contains various exemptions, including one that permits
a covered entity to use or disclose protected health information without
a valid authorization to the extent that such use or disclosure is ‘‘required
by law,’’ and that term is defined to expressly include statutes or regula-
tions that compel an entity to use or disclose protected health infor-
mation.
Even if this court assumed that, under the Privacy Rule, the DMHAS
Police Department was a ‘‘covered entity’’ and that the police report
contained ‘‘health information,’’ the police report was not shielded from
disclosure under HIPAA because its release was ‘‘required by law’’ under
FOIA, which is a state statute that requires the disclosure of public
records, and the police report, therefore, had to be disclosed, provided
that the names, dates of birth, and home phone numbers of the patients
mentioned therein were redacted.
(One justice concurring in part and dissenting in part;
two justices dissenting in one opinion)
Argued September 8, 2022—officially released August 29, 2023
Procedural History
Appeal from the decision of the named defendant
determining that the plaintiffs had violated the require-
ments of the Freedom of Information Act and ordering
that they comply with those requirements by disclosing
certain records to the defendant The Hartford Courant
et al., brought to the Superior Court in the judicial
district of New Britain and tried to the court, Cordani,
J.; judgment sustaining the appeal in part, from which
the named defendant appealed and the plaintiffs cross
appealed. Reversed in part; judgment directed.
Valicia Dee Harmon, commission counsel, for the
appellant-cross appellee (named defendant).
Alma Rose Nunley, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, Clare Kindall, former solicitor general, and Emily
V. Melendez, assistant attorney general, for the appel-
lees-cross appellants (plaintiffs).
Opinion
ECKER, J. This appeal presents the issue whether a
police report created by the police department at the
Whiting Forensic Division of Connecticut Valley Hospi-
tal (Whiting)1 is subject to disclosure under the Free-
dom of Information Act (FOIA), General Statutes § 1-
200 et seq. The police report at issue documented the
police department’s investigation into the death of a
patient at Whiting after a medical event. The named
defendant, the Freedom of Information Commission
(commission), appeals from the judgment of the trial
court, which ordered the disclosure of a redacted ver-
sion of the police report under FOIA, claiming that the
report should be released in its entirety because it is not
exempt from disclosure by (1) the psychiatrist-patient
communications privilege codified at General Statutes
§§ 52-146d (2) and 52-146e (a), or (2) 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. The plaintiffs, the Com-
missioner of Mental Health and Addiction Services and
the Department of Mental Health and Addiction Ser-
vices (DMHAS), disagree and cross appeal, claiming
that the police report should not be released at all,
even in redacted form, because it is protected by the
psychiatrist-patient communications privilege and HIPAA.
We conclude that the police report is not a communi-
cation or record, as those terms are used in § 52-146e
(a), and, therefore, is not exempt from disclosure under
FOIA. Nonetheless, the police report includes information
that would identify a patient at Whiting, even though
such information specifically was excluded from the
FOIA request, and the report therefore should be
redacted in the manner described in part III A 2 of
this opinion. Because the police report, with minimal
redaction, must be disclosed pursuant to FOIA, we fur-
ther conclude that it is not protected from disclosure by
HIPAA and its implementing Privacy Rule. Accordingly,
we reverse in part the judgment of the trial court.
I
FACTS AND PROCEDURAL HISTORY
On November 9, 2017, Josh Kovner, a reporter with
The Hartford Courant,2 submitted a FOIA request to
DMHAS, asking for the release of ‘‘DMHAS Police
Department incident reports on any and all deaths in
2016 of Whiting . . . patients that were deemed ‘acci-
dental’ by the [state] medical examiner’s office, includ-
ing, but not limited to, [the] death of a patient on
Dec[ember] 1, 2016. At the time, in reference to the
Dec[ember] 1, 2016, death, DMHAS said in a statement
that the patient ‘died due to a medical event.’ ’’ In his
request, Kovner added that ‘‘[a]ll references to the iden-
tity of a patient can be redacted.’’
responsive public record was exempt from disclosure
under FOIA on three grounds: (1) it was protected by
the psychiatrist-patient communications privilege codi-
fied at §§ 52-146d (2) and 52-146e (a); see General Stat-
utes § 1-210 (b) (10); (2) it constituted ‘‘[p]ersonnel or
medical files and similar files the disclosure of which
would constitute an invasion of personal privacy’’; Gen-
eral Statutes § 1-210 (b) (2); and (3) HIPAA’s Privacy
Rule ‘‘also prohibit[ed] the release of personal health
information without the consent of the patient or the
authorized representative.’’
Kovner filed a complaint with the commission chal-
lenging the denial of his FOIA request. The hearing
officer conducted an evidentiary hearing, at which
DMHAS submitted the police report, in both redacted
and unredacted form, for in camera inspection. Addi-
tionally, DMHAS adduced the testimony of Diana Lej-
ardi, its public information officer. Lejardi explained
that Whiting is a ‘‘maximum security unit’’ that provides
‘‘specialized forensic services’’ to patients who are
‘‘involved in . . . legal matters’’ and ‘‘have severe men-
tal illness . . . .’’ Patient treatment was overseen by
Michael Norko, a forensic psychiatrist. ‘‘DMHAS has its
own police department,’’ which is ‘‘specifically trained
for DMHAS’’ and ‘‘located in different facilities, includ-
ing in Whiting . . . .’’ According to Lejardi, DMHAS
employs its own police force ‘‘for a number of reasons.
One [is] because it is a maximum security unit, and
they do general screening of people entering and exiting
the facility. And, in addition . . . because [it] is a maxi-
mum security unit . . . there are, at times, patients
with severe behaviors [who] may require some type of
. . . interaction [with] or . . . assistance from . . .
DMHAS police. So, staff may call a code, which would
require . . . [the] police to respond.’’
At the hearing, Lejardi was asked whether DMHAS
police reports are used to make decisions about patient
diagnosis or treatment, and she responded that she did
not ‘‘have enough knowledge’’ to answer that question.
When asked whether it was likely that a police report
would be used in the diagnosis or treatment of a patient,
Lejardi answered: ‘‘I think it is likely that they can take
reports because [that’s] what . . . [the] police do—
there are times [when] there are events between
patients in which [the] police will take witness state-
ments. . . . [W]e have to remember [that] these are
patient[s] . . . with severe mental illness . . . [a]nd/
or substance use disorders. . . . [S]o, in the course of
a witness statement . . . there may be information
gathered that is used . . . or [that] the medical team
or treatment team may use . . . or further explore at
least.’’ Lejardi acknowledged, however, that informa-
tion in a police report ‘‘obviously . . . would not be
used to make the diagnosis or treatment of the [patient]
. . . [i]f the person passed away.’’
Following the hearing and in camera inspection of
the police report, the hearing officer issued a written
decision, finding that the police report was subject to
disclosure without redaction under FOIA. The hearing
officer’s decision was adopted unanimously by the com-
mission. In arriving at its conclusion, the commission
recognized that the police report ‘‘contain[s] the name
or other identifying information of a patient’’ but deter-
mined that it was not protected by the psychiatrist-
patient communications privilege on the ground that
‘‘the police officers [did] not participate in the diagnosis
or treatment of a patient’s mental condition . . . .’’
Because ‘‘none of the requested records [was] between
the patient and a psychiatrist, or between a member of
the patient’s family and a psychiatrist, or between any
of such persons and a person participating under the
supervision of a psychiatrist in the accomplishment of
the objectives of diagnosis and treatment,’’ the commis-
sion concluded that the police report did not ‘‘relate to
the diagnosis or treatment of a patient’s mental condi-
tion, within the definition[s] set forth in [§§] 52-146d
(2) [and 52-146e (a)].’’3 The commission also found that
the police report was not exempt from disclosure under
the personal privacy exemption in § 1-210 (b) (2).4
As for the claim of exemption under HIPAA, the com-
mission concluded that HIPAA was inapplicable because
the DMHAS police department is not a ‘‘covered entity’’
and the police report did not include ‘‘health informa-
tion,’’ as defined by 45 C.F.R. § 160.103. Alternatively,
even if HIPAA applied, the commission determined that
the police report was subject to disclosure under the
exemption in 45 C.F.R. § 164.512 (a), which provides
that ‘‘[a] covered entity may use or disclose protected
health information to the extent that such use or disclo-
sure is required by law and the use or disclosure com-
plies with and is limited to the relevant requirements
of such law.’’ Because FOIA requires the disclosure of
public records in the absence of an applicable exemp-
tion, and there was no applicable exemption in this
case, the commission concluded that the police report
was not protected by HIPAA.
DMHAS appealed from the decision of the commis-
sion to the Superior Court pursuant to the Uniform
Administrative Procedure Act (UAPA), General Stat-
utes § 4-183. The trial court concluded that ‘‘communi-
cations and records’’ in § 52-146d (2), which defines the
operative terms of the statutory privilege in § 52-146e
(a), broadly encompasses all ‘‘records that occur in, or
are prepared at, a mental health facility relating to the
treatment of a patient’s mental condition . . . .’’
Because Whiting is a mental health facility, the subject
of the police report was a patient at Whiting, the DMHAS
police department is a specialized force stationed and
employed at Whiting, and the provision of mental health
treatment services at Whiting depends on the presence
of the DMHAS police, the trial court concluded that the
police report came within the scope of the statutory
privilege, insofar as it was ‘‘prepared at a mental health
facility’’ and ‘‘relate[d] to the treatment of the mental
condition of a patient’’ within the meaning of § 52-146d
(2). The hearing officer’s determination to the contrary
was ‘‘not supported by substantial evidence in the
record and [was] a clear error of law.’’
The trial court nonetheless concluded that the police
report could be disclosed with redaction to remove
information that would ‘‘identify a patient’’ in accor-
dance with § 52-146e (a). (Footnote omitted.) The analy-
sis of whether a public record identifies a patient, the
trial court stated, ‘‘does not take into consideration
what the public may or may not know . . . .’’ Instead,
the statutory focus in § 52-146d (4) is on the public
records themselves and the ‘‘names or other descriptive
data’’ they contain, ‘‘from which a person acquainted
with the patient might reasonably recognize the patient
as the person referred to . . . .’’ General Statutes § 52-
146d (4) (A).5 After reviewing the police report in cam-
era, the trial court concluded that ‘‘a redacted form
of the record [could] be provided without identifying
the patient.’’
With respect to HIPAA, the trial court concluded that
the police report was prepared by a ‘‘covered entity’’
because Whiting and DMHAS are both health care pro-
viders. The trial court further concluded that the police
report contained ‘‘health information,’’ as defined by
HIPAA, because it identified a mental health patient
and contained ‘‘information concerning the patient’s
physical and mental health.’’ Although the consent of
the patient or his authorized representative had not
been provided in accordance with HIPAA, the trial court
nonetheless concluded that the police report could be
released consistent with HIPAA following the redaction
of references to the patient’s identity and personally
identifying health information.
This appeal and cross appeal followed.6 On appeal,
the parties renew the claims they raised before the
commission and the trial court, asking us to determine
whether the police report is exempt from disclosure
under FOIA because it is protected by the psychiatrist-
patient communications privilege and/or HIPAA’s Pri-
vacy Rule.
II
STANDARD OF REVIEW
The standard of review applicable to agency deci-
sions under the UAPA is well established. ‘‘Our review
of an agency’s factual determination is constrained by
. . . § 4-183 (j), which mandates that a court shall not
substitute its judgment for that of the agency as to the
weight of the evidence on questions of fact. . . . [I]t
is [not] the function of the trial court [or] of this court
to retry the case . . . . An agency’s factual determina-
tion must be sustained if it is reasonably supported by
substantial evidence in the record taken as a whole.
. . . Substantial evidence exists if the administrative
record affords a substantial basis of fact from which
the fact in issue can be reasonably inferred. . . . This
substantial evidence standard is highly deferential and
permits less judicial scrutiny than a clearly erroneous
or weight of the evidence standard of review.’’ (Internal
quotation marks omitted.) Board of Education v. Com-
mission on Human Rights & Opportunities, 266 Conn.
492, 503–504, 832 A.2d 660 (2003).
Even with respect to conclusions of law, ‘‘[t]he
court’s ultimate duty is only to decide whether, in light
of the evidence, the [agency] has acted unreasonably,
arbitrarily, illegally, or in abuse of its discretion. . . .
[Thus] [c]onclusions of law reached by the administra-
tive agency must stand if the court determines that they
resulted from a correct application of the law to the
facts found and could reasonably and logically follow
from such facts.’’ (Internal quotation marks omitted.)
Meriden v. Freedom of Information Commission, 338
Conn. 310, 318–19, 258 A.3d 1 (2021).
We will defer to an agency’s construction of a statute
or administrative regulation if the language at issue is
ambiguous and the agency’s construction is time-tested,
reasonable, and previously has been subject to judicial
scrutiny. See, e.g., Marone v. Waterbury, 244 Conn. 1,
9–10, 707 A.2d 725 (1998) (even if agency’s interpreta-
tion of statute is time-tested because ‘‘the agency has
consistently followed its construction over a long
period of time, the statutory language is ambiguous,
and the agency’s interpretation is reasonable,’’ agency’s
interpretation is not entitled to special deference if it
‘‘has not previously been subject to judicial scrutiny’’
(internal quotation marks omitted)). When the statute
or regulation at issue is not ambiguous, or the agency’s
construction of the statute or regulation is not time-
tested, reasonable, or has not previously been subjected
to judicial scrutiny, ‘‘we apply a broader standard of
review . . . .’’ (Internal quotation marks omitted.)
Id., 10.
The commission does not claim that its construction
of the psychiatrist-patient communications privilege in
§§ 52-146d (2) and 52-146e (a) is entitled to deference,
but it does claim that its construction of HIPAA’s Pri-
vacy Rule is entitled to deference because it ‘‘has con-
strued HIPAA’s regulatory scheme consistently and rea
sonably for years.’’ DMHAS responds that ‘‘such deference
is not afforded [when] an agency is interpreting a differ-
ent agency’s statute or regulations.’’ In Commissioner
of Correction v. Freedom of Information Commission,
307 Conn. 53, 52 A.3d 636 (2012), we held that it is only
‘‘the interpretation of the promulgating agency . . .
[that] is entitled to deference by this court’’ because an
agency that did not promulgate the regulations under
review does not have ‘‘special expertise’’ in the subject
matter of the regulations or the intent that prompted
their promulgation. Id., 65; see id. (declining to defer
to commission’s interpretation of regulations promul-
gated by United States Department of Justice Immigra-
tion and Naturalization Service because ‘‘[t]he commission
has no special expertise in federal immigration law, in
federal criminal law enforcement policies and proce-
dures, or in questions of national security, which mat-
ters are the subject of the regulation,’’ and ‘‘the intent
of our state legislators when setting policy and enacting
laws regarding access to public records in this state
has no bearing on the intent of the federal agency that
promulgated the regulation’’). We agree with DMHAS
that the commission’s interpretation of the Privacy
Rule, which was promulgated by the United States
Department of Health and Human Services, is not enti-
tled to deference.
Thus, the scope of the psychiatrist-patient communi-
cations privilege codified at §§ 52-146d (2) and 52-146e
(a) and in HIPAA’s Privacy Rule are questions of law,
which we review de novo. See, e.g., Commissioner of
Public Safety v. Freedom of Information Commission,
301 Conn. 323, 337–38, 21 A.3d 737 (2011). Our analysis
of §§ 52-146d (2) and 52-146e (a) is governed by the
principles of statutory construction set forth in General
Statutes § 1-2z. With respect to HIPAA’s Privacy Rule,
‘‘principles of comity and consistency require us to fol-
low the [federal] plain meaning rule,’’ as construed by
the federal courts. (Internal quotation marks omitted.)
Szewczyk v. Dept. of Social Services, 275 Conn. 464,
474–75, 881 A.2d 259 (2005); see Soto v. Bushmaster
Firearms International, LLC, 331 Conn. 53, 117–18,
202 A.3d 262 (discussing federal plain meaning rule),
cert. denied sub nom. Remington Arms Co., LLC v.
Soto, U.S. , 140 S. Ct. 513, 205 L. Ed. 2d 317 (2019).
III
FOIA
Section 1-210 (a) of FOIA provides in relevant part
that, ‘‘[e]xcept 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’’ inspect, copy, and receive a copy of such
records, subject to the exemptions enumerated in sub-
section (b) of the statute. We consistently have held
that ‘‘the long-standing legislative policy of [FOIA]
favoring the open conduct of government and free pub-
lic access to government records . . . requires us to
construe the provisions of [FOIA] to favor disclosure
and to read narrowly that act’s exceptions to disclo-
sure.’’ (Citations omitted; internal quotation marks
omitted.) Waterbury Teachers Assn. v. Freedom of
Information Commission, 240 Conn. 835, 840, 694 A.2d
1241 (1997). The exemptions contained in FOIA ‘‘reflect
a legislative intention to balance the public’s right to
know what its agencies are doing, with the governmen-
tal and private needs for confidentiality. . . . [I]t is this
balance of the governmental and private needs for confi-
dentiality with the public right to know that must govern
the interpretation and application of [FOIA]. . . . Our
construction of [FOIA] must be guided by the policy
favoring disclosure and exceptions to disclosure must
be narrowly construed. . . . [T]he burden of proving
the applicability of an exemption rests [on] the agency
claiming it.’’ (Citations omitted; internal quotation marks
omitted.) Commissioner of Emergency Services & Pub-
lic Protection v. Freedom of Information Commission,
330 Conn. 372, 383–84, 194 A.3d 759 (2018); see Lieber-
man v. State Board of Labor Relations, 216 Conn. 253,
266, 579 A.2d 505 (1990) (‘‘[i]n those limited circum-
stances [in which] the legislature has determined that
some other public interest overrides the public’s right
to know, it has provided explicit statutory exceptions
. . . [that] must be narrowly construed’’ (citation
omitted)).
A
Psychiatrist-Patient Communications Privilege
The parties dispute whether the police report at issue
in this appeal is exempt from disclosure under subsec-
tion (b) (10) of § 1-210, which provides in relevant part
that ‘‘[n]othing in [FOIA] shall be construed to require
disclosure of . . . communications privileged by the
. . . doctor-patient relationship, therapist-patient rela-
tionship or any other privilege established by the com-
mon law or the general statutes . . . .’’ The only
applicable communications privilege raised by DMHAS
is the statutory psychiatrist-patient communications
privilege contained in §§ 52-146d (2) and 52-146e (a).
Our analysis of the exemption for psychiatrist-patient
communications proceeds in two parts. Because the
only information that is privileged under § 52-146e (a)
is ‘‘the substance or any part or any resume’’7 of ‘‘com-
munications and records as defined in section 52-146d,’’
we first address the definition of ‘‘communications and
records’’ in § 52-146d (2) to determine the scope of the
privilege. Second, we address whether there is substan-
tial evidence in the administrative record to support
the commission’s finding that the police report is not
a communication or record, as defined by § 52-146d (2).
1
Definition of ‘‘Communications and Records’’
in § 52-146d (2)
The psychiatrist-patient communications privilege
did not exist at common law and is entirely a creature
of statute. See Zeiner v. Zeiner, 120 Conn. 161, 167,
by physicians in their professional capacity ha[d] never
been privileged’’). The purpose of the psychiatrist-
patient communications privilege ‘‘is to protect a thera-
peutic relationship. The statute provides a privilege for
confidential communications so that a patient may
safely disclose to his therapist personal information
that is necessary for effective treatment or diagnosis.
. . . Communications that bear no relationship to the
purpose for which the privilege was enacted do not
obtain shelter under the statute and are [not privi-
leged].’’ (Citation omitted.) Bieluch v. Bieluch, 190
Conn. 813, 819, 462 A.2d 1060 (1983); see Home Ins.
Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 195,
663 A.2d 1001 (1995) (‘‘the principal purpose of [the]
privilege is to give the patient an incentive to make full
disclosure to a physician in order to obtain effective
treatment free from the embarrassment and invasion
of privacy [that] could result from a doctor’s testimony’’
(internal quotation marks omitted)).8
We begin our analysis, as we must, with the language
of §§ 52-146d (2) and 52-146e (a). See General Statutes
§ 1-2z. The textual focus of § 1-2z is consistent with the
cardinal and long-standing rule of statutory construc-
tion that courts may not overlook the text of a statute
in order to advance unarticulated policy considerations,
even if those policies are salutary and advisable. See,
e.g., Trinity Christian School v. Commission on Human
Rights & Opportunities, 329 Conn. 684, 697–98, 189
A.3d 79 (2018) (‘‘[i]t is not the province of this court,
under the guise of statutory interpretation, to legislate
. . . a [particular] policy, even if we were to agree . . .
that it is a better policy than the one endorsed by the
legislature as reflected in its statutory language’’ (inter-
nal quotation marks omitted)). Upon careful examina-
tion, the text of §§ 52-146d (2) and 52-146e (a) goes a
long way toward resolving this appeal.
Section 52-146e (a) expressly limits the scope of the
privilege to ‘‘communications and records as defined
in section 52-146d . . . .’’ Section 52-146d (2), in turn,
provides that ‘‘ ‘[c]ommunications 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 psychiatric 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 . . . .’’ See also
General Statutes § 52-146d (5) (defining ‘‘mental health
facility’’ as ‘‘any hospital, clinic, ward, psychiatric men-
tal health provider’s office or other facility, public or
private, which provides inpatient or outpatient service,
in whole or in part, relating to the diagnosis or treatment
of a patient’s mental condition’’).
It is clear from the plain language of this statutory
definition that the legislature limited the psychiatrist-
patient communications privilege in three important
respects. First, the privilege applies only to communica-
tions and records thereof, which means records of com-
munications.9 Of course, the definition includes more
than oral and written communications and records doc-
umenting such communications, because records can
themselves be (or become) communications. For exam-
ple, information documented in a patient’s medical
file—such as a provider’s clinical observations and
treatment notes, orders relating to medications or treat-
ment, and lab test results—can constitute communica-
tions from one mental health provider to another
regarding a patient’s diagnosis and treatment. With that
caveat, however, the statutory text leaves no room for
debate that only communications and records of com-
munications are privileged under §§ 52-146d (2) and 52-
146e (a) and exempt from disclosure under FOIA.
Second, the communication or record thereof must
‘‘relat[e] to’’ the diagnosis and treatment of a patient’s
mental condition. General Statutes § 52-146d (2). As
we previously have observed, ‘‘the term ‘relating to’
uniformly has been given a broad meaning . . . .’’
(Footnote omitted.) Brennan v. Brennan Associates.,
293 Conn. 60, 79, 977 A.2d 107 (2009); see Lombardo’s
Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 233, 842
A.2d 1089 (2004) (referring to definition of ‘‘related’’ in
Webster’s Third New International Dictionary as ‘‘having
relationship: connected by reason of an established or
discoverable relation’’ (internal quotation marks omit-
ted)). We must nevertheless remain cognizant that the
breadth of this term does not mean that every communi-
cation involving or regarding a patient under psychiatric
care—even a patient hospitalized in a mental health
facility—will relate to the diagnosis and treatment of
a patient’s mental health condition. See, e.g., State v.
Montgomery, 254 Conn. 694, 725, 759 A.2d 995 (2000)
(statement of person hospitalized in mental health facil-
ity ‘‘bore no relation to . . . diagnosis or treatment’’).
Section 52-146d (2) provides that the communication
or record thereof is privileged only if it relates to the
diagnosis and treatment of a patient’s mental condition.
Third, the communication or record thereof must be
between individuals identified in the following three
categories of communicants delineated in § 52-146d (2):
(1) ‘‘the patient and a psychiatric mental health pro-
vider’’; (2) ‘‘a member of the patient’s family and a
psychiatric mental health provider’’; and (3) the patient,
the psychiatric mental health provider, or the patient’s
family member, and ‘‘a person participating under the
supervision of a psychiatric 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 . . . .’’ With respect to the third category
of communicants, the use of the present participle ‘‘par-
ticipating’’10 plainly means that the person from whom
or to whom the communication is made must actually
be involved ‘‘in the accomplishment of the objectives
of diagnosis and treatment . . . .’’ General Statutes
§ 52-146d (2). Only a communication or a record of a
communication between individuals identified in these
three categories is protected by the psychiatrist-patient
communications privilege. Communications or records
of communications between other individuals, or those
that are unrelated to the diagnosis and treatment of a
patient’s mental condition, are not privileged psychia-
trist-patient communications and, therefore, are not
protected from disclosure under FOIA.
Our prior case law on the subject helps illuminate
the nature and scope of these three limitations. In State
v. Montgomery, supra, 254 Conn. 721–25, we considered
whether statements made by a patient at a mental health
facility were communications or records protected
from disclosure by the psychiatrist-patient communica-
tions privilege. In that case, a psychiatrist at Cedarcrest
Hospital had assigned Elaine Janas, a mental health
assistant, to monitor a mental health patient, Tyrone
Montgomery. See id., 722–23. While monitoring Mont-
gomery, Janas overhead him make a statement to an
unknown third party over the telephone in an alleged
attempt to concoct a false alibi regarding his involve-
ment in a murder. Id., 723. At Montgomery’s later crimi-
nal trial, the state sought to admit Janas’ testimony
regarding Montgomery’s inculpatory statement. Id. We
held that Montgomery’s statement was not a protected
communication because it was not a communication
‘‘between [Montgomery] and a psychiatrist or Janas,
but, rather, between [Montgomery] and an unknown
third party located outside of the hospital’’ that ‘‘bore
no relation to [Montgomery’s] diagnosis or treatment.’’
Id., 725. The ‘‘mere fact[s]’’ that Montgomery’s state-
ment was made in a mental health institution and that
‘‘Janas was assigned to observe [Montgomery] for his
own protection [did] not transform [Montgomery’s]
statement into a protected communication under the
psychiatrist-patient privilege. A contrary determination
would extend that privilege well beyond the plain statu-
tory language that defines it.’’ Id.Both DMHAS and Justice Keller in her dissenting
opinion contend that our decision in Falco v. Institute
of Living, 254 Conn. 321, 757 A.2d 571 (2000), adopted
a far broader construction of ‘‘communications and
records,’’ one that includes all communications and
records that were made at or prepared in a mental
health facility and that identify a patient. See part II of
the dissenting opinion. We cannot agree that our deci-
sion in Falco construed § 52-146d (2) to encompass
communications beyond the limited categories set forth
in the statutory definition. Indeed, Falco did not
address—much less adjudicate—the definition of ‘‘com-
munications and records’’ in § 52-146d (2) because the
parties in that case agreed that ‘‘§ 52-146e control[led]
and that no appropriate statutory exception [to the psy-
chiatrist-patient communications privilege] applie[d].’’
Id., 325. Instead, the issue before us in Falco was
whether the trial court could exercise its discretion to
override the psychiatrist-patient communications privi-
lege and to order a bill of discovery requiring the disclo-
sure of a mental health patient’s name, last known
address, and social security number due to ‘‘compelling
countervailing interests not explicitly recognized by the
legislature.’’ (Internal quotation marks omitted.) Id. In
light of the plain language of § 52-146e (a), which ‘‘spe-
cifically prohibits the disclosure or transmission of any
communications or records that would ‘identify a
patient’ ’’; id., 329; and the absence of an applicable
statutory exception, we concluded that it was ‘‘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 over-
ridden.’’ Id., 331. We recognized that communications
unrelated to the purpose for which the privilege was
enacted are not protected from disclosure but deter-
mined that the identity of a patient is related to the
purpose of the psychiatrist-patient communications
privilege because ‘‘[t]he confidentiality of a patient’s
identity is as essential to the statutory purpose of pre-
serving the therapeutic relationship as the confidential-
ity of any other information in a patient’s communications
and records.’’ Id., 329.
Falco does not stand for the unjustifiably broad prop-
osition that the psychiatrist-patient communications
privilege prohibits the disclosure of all documents or
information prepared at a mental health facility from
which a patient can be identified. The scope of the
statutory definition was not at issue in that case.11 Our
statements in Falco regarding the privileged nature of
communications that identify a patient must be under-
stood in the context in which they were made, i.e., in
response to an argument that information identifying
a patient is not privileged because it is unrelated to the
purpose for which the psychiatrist-patient communica-
tions privilege was enacted. We rejected this notion,
reasoning that the protection of a patient’s identity
within confidential communications is essential to the
statutory purpose of preserving the therapeutic rela-
tionship and shielding patients from the stigma of seek-
ing psychiatric care. Id. Any suggestion that our holding
in Falco expanded the definition of ‘‘communications
and records’’ in § 52-146d (2) beyond its plain language
is unfounded.
In Freedom of Information Officer, Dept. of Mental
Health & Addiction Services v. Freedom of Information
Commission, 318 Conn. 769, 122 A.3d 1217 (2015)
(Freedom of Information Officer), we reinforced our
commitment to the plain language of the statutory defi-
nition. In that case, we addressed whether medical and
dental records prepared at a mental health facility and
maintained in the patient’s clinical file were ‘‘communi-
cations and records,’’ as defined by § 52-146d (2). See
id, 783–89 and n.8. We concluded that the medical and
dental records at issue in that case were ‘‘not communi-
cations directly between [the patient] and a psychiatrist
or between a member of [the patient’s] family and a
psychiatrist.’’ Id., 783. Nevertheless, we noted that ‘‘the
definition of [c]ommunications and records in § 52-146d
(2) does not stop there. Section 52-146d (2) further
defines [c]ommunications and records to include all
oral and written communications and records thereof
relating to diagnosis or treatment of a patient’s mental
condition . . . between any of such persons and a per-
son participating under the supervision of a psychia-
trist 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 . . . .’’ (Emphasis
added; internal quotation marks omitted.) Id. We held
that this third category of ‘‘communications and records
thereof’’ was applicable because there was evidence
‘‘that the medical and dental records at issue were cre-
ated at the hospital during [the patient’s] inpatient treat-
ment’’ and ‘‘under the direction of a psychiatrist,’’ who
was ‘‘the superintendent of the facility at the time [the
patient]’’ was receiving treatment. Id., 785–86. We twice
noted that the records were maintained as part of the
patient’s clinical file at the hospital. Id., 783, 790. Addi-
tionally, we recognized that General Statutes § 17a-545
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; see General
Statutes § 17a-545 (requiring inpatient mental health
facilities to conduct physical examinations of patients).
Because the medical and dental records were ‘‘created
by an inpatient mental health facility during the treat-
ment of a patient’’ and were related to the objectives
of the patient’s diagnosis and treatment, we held that
they satisfied the statutory definition of ‘‘communica-
tions and records’’ in § 52-146d (2) and were exempt
from disclosure under FOIA. Freedom of Information
Officer, Dept. of Mental Health & Addiction Services
v. Freedom of Information Commission, supra, 791;
see id., 786.
Both Chief Justice Robinson, in his concurring and
dissenting opinion, and Justice Keller, in her dissenting
opinion, contend that our holding in Freedom of Infor-
mation Officer requires us to conclude that the police
report in the present case falls within the statutory
privilege. See, e.g., part I of the dissenting opinion.
We see a world of difference, however, between the
operative facts of that case and this one. Freedom of
Information Officer involved the disclosure of medical
and dental records that were part of the patient’s clinical
file at the psychiatric facility and were prepared at a
time when the patient was receiving treatment from
persons who were participating in the accomplishment
of the objectives of diagnosis and treatment. See Free-
dom of Information Officer, Dept. of Mental Health &
Addiction Services v. Freedom of Information Com-
mission, supra, 318 Conn. 780, 783, 790. In contrast,
the police report at issue in this case was not a part of
the patient’s clinical file and was prepared after the
patient had stopped receiving treatment at Whiting.
Given the nature and timing of the postmortem investi-
gation conducted by the DMHAS police officers, it is
clear that the officers who produced the report were not
participating in the accomplishment of the objectives
of diagnosis and treatment when they authored the
report but, instead, were performing the traditional law
enforcement function of investigating an untimely
death. See part III A 2 of this opinion. Accordingly, the
report is not a communication or record protected by
the statutory psychiatrist-patient communications privi-
lege.12
DMHAS also argues that the plain language of § 52-
146d (2) encompasses all communications and records
of communications made at or prepared in a mental
health facility relating to the diagnosis and treatment
of a patient’s mental condition, regardless of the identity
of the communicants, because the final clause of the
statute expands the definition of ‘‘communications and
records’’ to include all communications and records
thereof ‘‘wherever made, including communications
and records which occur in or are prepared at a mental
health facility . . . .’’ (Emphasis added.) General Stat-
utes § 52-146d (2). According to DMHAS, the phrase
‘‘including communications and records which occur
in or are prepared at a mental health facility’’ must be
construed expansively because, otherwise, the phrase
‘‘wherever made’’ would be superfluous, contrary to our
rules of statutory construction. See, e.g., Semerzakis
v. Commissioner of Social Services, 274 Conn. 1, 18,
873 A.2d 911 (2005) (‘‘[s]tatutes must be construed, if
possible, such that no clause, sentence or word shall be
superfluous, void or insignificant’’ (internal quotation
marks omitted)).
We find no merit in this argument. We previously
have held in other statutory contexts that the word
‘‘including’’ is ambiguous because it typically is unclear
whether it is ‘‘intended as a word of limitation . . . or
one of enlargement . . . .’’ (Internal quotation marks
omitted.) State v. DeFrancesco, 235 Conn. 426, 435, 668
A.2d 348 (1995); see, e.g., Hartford Electric Light Co.
v. Sullivan, 161 Conn. 145, 150, 285 A.2d 352 (1971)
(noting that term ‘‘ ‘include’ is primarily defined as a
term of limitation’’ but also ‘‘can be a term of enlarge-
ment’’). We therefore turn to extratextual sources of
legislative intent to determine whether the legislature
intended to protect all communications and records
of communications created in a mental health facility,
regardless of whether they are ‘‘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).
The phrase ‘‘wherever made, including communica-
tions and records which occur in or are prepared at a
mental health facility,’’ was added to the statutory
scheme in 1969 as part of a comprehensive overhaul
of the psychiatrist-patient communications privilege.
See Public Acts 1969, No. 819, § 1. According to the
legislative history,13 the purpose of No. 819 of the 1969
Public Acts was to balance the legitimate needs of
researchers to access confidential psychiatric commu-
nications with the privacy interests of patients. See
Conn. Joint Standing Committee Hearings, Judiciary,
Pt. 1, 1969 Sess., p. 92, remarks of Ben Bursten, a psychi-
atrist (explaining that statute ‘‘represents a delicate bal-
ance between the patient’s rights and the advantages
offered by the new technology’’ of computerized
research, thus ‘‘allow[ing] research and administration
to proceed while safeguarding the confidentiality of the
patient’s communications’’); id., pp. 100–101, statement
of Gerald L. Klerman, a psychiatrist and the director
of the Connecticut Mental Health Center (‘‘This [b]ill
recognizes these new advances and expanding needs
[arising from new information technology, new forms
of treatment, and new forms of mental health organiza-
tions]. It balances the rights of individuals with the
needs of society. It allows for [the] collection of data for
administrative planning and research while providing
safeguards for patients’ privacy and confidentiality.’’
(Internal quotation marks omitted.)). The amendment
was intended to clarify that the psychiatrist-patient
communications privilege is not limited to communica-
tions between patients and private psychiatrists but
also extends to communications relating to psychiatric
treatment provided at publicly funded institutions that
offer inpatient treatment. See id., p. 82, remarks of Rep-
resentative 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 institu-
tions’’); id., p. 99, remarks of Attorney John Rose (‘‘I
think that it’s a terrifically important bill because it
protects all patients’ confidentiality including that of
the indigent person being treated in a state hospital’’).
There is no indication that the legislature intended to
adopt a broader privilege, applicable only to records
created at mental health facilities, that applies regard-
less of the express limitations contained in the statutory
definition relating to the identities of the communicants
and the content of the communications. To the contrary,
the purpose of the amendment was, in part, to create
a uniform standard applicable to all communications
or records thereof relating to psychiatric treatment,
regardless of the setting in which the psychiatric treat-
ment is provided.
In light of the legislative history and the purpose
of the statute, we conclude that the phrase ‘‘including
communications and records which occur in or are
prepared at a mental health facility’’ was not intended
to create a freestanding category of confidential com-
munications and records unique to mental health facili-
ties but, instead, was intended ‘‘as an illustrative
application of ‘wherever made’ . . . .’’ Skakel v. Bene-
dict, 54 Conn. App. 663, 673, 738 A.2d 170 (1999); see
id., 673–74 (rejecting claim that definition of ‘‘communi-
cations and records’’ is limited to confidential communi-
cations ‘‘between designated parties that occurred in
or were prepared at a mental health facility’’ and con-
cluding that mental health facility is just illustrative
application of ‘‘ ‘wherever made’ ’’). We reject DMHAS’
claim that all communications and records thereof pre-
pared in a mental health facility that identify a patient
are privileged under § 52-146e (a), regardless of whether
they were communications between the individuals
identified in the three categories of communicants
delineated in § 52-146d (2).
Justice Keller criticizes our construction of the statu-
tory scheme on the grounds that it creates ‘‘a two tiered
system for applying the psychiatrist-patient privilege’’
and contravenes the legislature’s stated ‘‘intent to pro-
vide the same level of protection to the psychiatric
records of persons who receive treatment from a public
mental health institution as that afforded to the records
of persons who receive treatment from a private mental
health care provider.’’ The dissenting opinion also states
that we have implicitly added a FOIA ‘‘exception’’ to the
privilege, such that an otherwise privileged document
becomes disclosable if requested under FOIA. Footnote
5 of the dissenting opinion. This criticism misses the
mark. Section 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. The communications and
records of patients who seek treatment at a private
mental health treatment facility are not inviolate; they
are subject to disclosure under § 52-146e (a) to the same
extent and in the same manner as the communications
and records of patients who seek treatment at a public
mental health facility.14 Conversely, the communica-
tions and records of patients who seek treatment at a
public mental health facility are not inferior or entitled
to less protection; they are privileged in accordance
with the dictates of §§ 52-146d (2) and 52-146e (a). If
a communication is privileged, it may not be disclosed
under FOIA.15
This case illustrates the inherent tension between
the competing public policy objectives of governmental
transparency and patient confidentiality. ‘‘From the
beginning, the history of [FOIA] has been one of tension
between the principle of open government and those
circumstances [in which] superior public interest
requires confidentiality.’’ (Internal quotation marks omit-
ted.) M. Burke, ‘‘The Freedom of Information Act and
Its Exceptions,’’ 91 Conn. B.J. 350, 366 (2018). We
acknowledge ‘‘the unfortunate reality that a stigma may
attach to one who seeks psychiatric care . . . and that
revealing a patient’s identity may subject him or her to
embarrassment, harassment or discrimination.’’ Falco
v. Institute of Living, supra, 254 Conn. 329. We agree
with our dissenting colleagues that this is a concern
worthy of very serious consideration. On the other
hand, however, we must also acknowledge the unfortu-
nate and undeniable reality that governmental secrecy
can be used to conceal governmental abuse, corruption,
and neglect. Cf. National Labor Relations Board v.
Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S. Ct.
2311, 57 L. Ed. 2d 159 (1978) (‘‘[t]he basic purpose of
[the federal Freedom of Information Act] is to ensure
an informed citizenry, vital to the functioning of a demo-
cratic society, needed to check against corruption and
to hold the governors accountable to the governed’’).16
In enacting FOIA, the legislature balanced these com-
peting principles and provided, as it deemed appro-
priate, for certain exemptions from disclosure to protect
patient confidentiality. For example, there is a specific
FOIA exemption for ‘‘medical files and similar files the
disclosure of which would constitute an invasion of
personal privacy’’; General Statutes § 1-210 (b) (2);
which is not at issue in this appeal. See footnote 4 of
this opinion. There also is an exemption for records
that ‘‘may result in a safety risk, including the risk of
harm to any person or the risk of an escape from, or
a disorder in, a . . . facility under the supervision of
. . . Whiting Forensic Hospital.’’ General Statutes § 1-
210 (b) (18).17 Most notably for present purposes, how-
ever, FOIA does not contain a blanket exemption from
disclosure for all records and documents relating to
patients at Whiting or other public mental health facili-
ties, and we cannot expand the statutory privilege by
construction, even if we believed that the relevant con-
siderations warrant broader coverage. See Commis-
sioner of Public Safety v. Freedom of Information
Commission, 312 Conn. 513, 550, 93 A.3d 1142 (2014)
(‘‘we deem balancing the various interests and articulat-
ing a coherent policy on [FOIA exemptions] to be a
uniquely legislative function’’); State v. Whiteman, 204
Conn. 98, 103, 526 A.2d 869 (1987) (‘‘[i]n areas [in which]
the legislature has spoken . . . the primary responsi-
bility for formulating public policy must remain with
the legislature’’). The decision whether the public policy
of this state would best be served by creating such
an exemption to protect the confidentiality of patient
information, or by requiring the disclosure of such infor-
mation to ensure governmental accountability for the
proper care and maintenance of mental health patients,
who are some of the most vulnerable members of our
population, is one that rests with the legislature.
2
Substantial Evidence To Support
the Commission’s Decision
We next address whether there is substantial evi-
dence in the administrative record to support the com-
mission’s finding that the police report is not a
communication or record thereof, as defined by § 52-
146d (2). ‘‘An administrative finding is supported by
substantial evidence if the record affords a substantial
basis of fact from which the fact in issue can be reason-
ably inferred. . . . The substantial evidence rule
imposes an important limitation on the power of the
courts to overturn a decision of an administrative
agency . . . and to provide a more restrictive standard
of review than standards embodying review of weight
of the evidence or clearly erroneous action. . . . The
United States Supreme Court, in defining substantial
evidence in the directed verdict formulation, has said
that it is something less than the weight of the evidence,
and the possibility of drawing two inconsistent conclu-
sions from the evidence does not prevent an administra-
tive agency’s finding from being supported by
substantial evidence.’’ (Internal quotation marks omit-
ted.) Stratford Police Dept. v. Board of Firearms Per-
mit Examiners, 343 Conn. 62, 81, 272 A.3d 639 (2022).
The substantial evidence standard requires courts to
defer to agency findings in the absence of a strong
reason to intervene: ‘‘[I]t is [not] the function of the
trial court [or] of this court to retry the case or to
substitute its judgment for that of the administrative
agency. . . . The 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.’’ (Citation omitted; internal quotation marks
omitted.) Cadlerock Properties Joint Venture, L.P. v.
Commissioner of Environmental Protection, 253
Conn. 661, 668–69, 757 A.2d 1 (2000), cert. denied, 531
U.S. 1148, 121 S. Ct. 1089, 148 L. Ed. 2d 963 (2001).
As we explained previously, the evidence adduced
at the administrative hearing consisted of the testimony
of Lejardi and the police report in both redacted and
unredacted form. Our in camera review of the police
report reveals that it is a collection of investigative
reports, each typewritten on a standard form entitled
‘‘POLICE CASE/INCIDENT REPORT’’ and authored by
various members of the DMHAS Police Department as
part of its investigation into a patient’s death. Ten of
these reports were written by the DMHAS police officer
primarily assigned to investigate the matter, Detective
Thomas M. Ruggerio, who was not present at the time
of the underlying events. Ruggerio’s reports, which
comprise thirty of the report’s forty-one pages, include
his narrative of witness interviews conducted by him,
as well as timelines and narratives created by him upon
review of video and audio recordings of some of the
relevant events.18 The other five reports were written
by other DMHAS police officers.19 A few of the reports
were created within twenty-four hours after the
patient’s death. Most of them were created over the next
eight days. There are two later reports, dated March
31, 2017, and April 26, 2017, which document Ruggerio’s
release of the complete narrative of the investigation,
video footage, photographs and related information to
the state police, Ruggerio’s receipt of the medical exam-
iner’s autopsy report, and the closure of the investi-
gation.20
Having reviewed Lejardi’s testimony and the police
report in camera, we conclude that substantial evidence
supports the commission’s determination that the report
is not a communication or record thereof, as defined
by § 52-146d (2). The police report, which was gener-
ated after the death of a patient at Whiting, is not a
communication ‘‘between the patient and a psychiatric
mental health provider, or between a member of the
patient’s family and a psychiatric mental health pro-
vider, 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 . . . .’’ General
Statutes § 52-146d (2). Instead, it is a communication
between the DMHAS police officers tasked with investi-
gating a patient’s death and an unknown recipient or
recipients. Regardless of whether the intended recipient
was the captain of the DMHAS police force, the state
police, or, more speculatively, a ‘‘psychiatric mental
health provider,’’ as defined by § 52-146d (7),21 given
the death of the patient who is the subject of the report,
it clearly appears that the officers were not participating
in the accomplishment of the objectives of diagnosis
and treatment at the time the report was produced.
Rather, the DMHAS police officers were performing the
traditional law enforcement function of investigating
an unnatural death and reporting the results of their
investigation. On the present administrative record, we
cannot conclude that the commission acted arbitrarily,
illegally, or in abuse of its discretion in finding that the
police report was not a communication or record within
the meaning of the statutory scheme.
In their respective opinions, Chief Justice Robinson
and Justice Keller arrive at the opposite conclusion on
the basis of their review of the administrative record.
Specifically, they would find that the DMHAS police
officers who responded to the emergency medical event
suffered by the patient on December 1, 2016, were par-
ticipating ‘‘in the accomplishment of the objectives of
diagnosis and treatment’’ within the meaning of § 52-
146d (2). See, e.g., part I of the dissenting opinion. That
conclusion is flawed for three reasons. First, the proper
focus of the privilege inquiry for present purposes is
the police report itself, because that is the communica-
tion or record thereof at issue. We have seen nothing
in the record supporting (much less compelling) the
conclusion that the DMHAS officers were participating
in the accomplishment of the objectives of diagnosis
and treatment at the time they wrote the report.
Second, turning from the authors of the report to its
intended recipient, we reiterate that a document does
not qualify as a communication or record thereof within
the meaning of § 52-146d (2) unless the intended recipi-
ent of the communication also falls within one of the
three protected categories of communicants identified
therein. As we previously explained, there is no evi-
dence in the record indicating the intended recipient
of the police report, and, without such evidence, we
are unable to discern any basis for the assertions in the
dissenting opinions that the police report is a communi-
cation or record thereof.
Third, although some DMHAS police officers responded
to the emergency medical event involving the patient,
it is unclear from the record whether, as Chief Justice
Robinson concludes, they were participating ‘‘in their
capacity as part of the psychiatric treatment team’’ or,
alternatively, performing the traditional law enforce-
ment function of coordinating an emergency response
to a medical event. As Chief Justice Robinson acknowl-
edges, ‘‘no officer provided emergency medical treat-
ment to the patient . . . .’’ Indeed, there is no evidence
to suggest that the responding officers had any physical
or verbal interaction of any kind with the patient. Given
the ambiguity in the administrative record, we are not
at liberty to substitute our own judgment for that of
the commission.
To be clear, we do not suggest, as Justice Keller implies,
that the police report does not ‘‘relat[e] to diagnosis or
treatment of a patient’s mental condition’’ within the
meaning of § 52-146d (2). (Internal quotation marks
omitted.) Part I of the dissenting opinion. It clearly
does. Rather, we hold that the police report at issue in
this case is not a protected psychiatrist-patient commu-
nication or a record of such a communication between
the patient, a member of the patient’s family, or a mental
health provider and ‘‘a person participating . . . in
the accomplishment of the objectives of diagnosis and
treatment . . . .’’ (Emphasis added.) General Statutes
§ 52-146d (2). Although the police report contains infor-
mation related to the patient’s psychiatric diagnosis and
treatment, at the time the police report was generated,
the DMHAS police officers were not participating in
the diagnosis and treatment of the patient but, instead,
were participating in an investigation into the cause
of the patient’s untimely death and the adequacy of
DMHAS’ response to the patient’s emergency medical
event.22
In reaching this conclusion, we are fully cognizant
that, even though the police report itself is not a privi-
leged psychiatrist-patient communication, it might con-
tain the substance, part, or resume of some discrete,
privileged, psychiatrist-patient communications between
the individuals identified in the three categories of com-
municants delineated in § 52-146d (2). As Justice Keller
correctly points out in her dissenting opinion, all alleg-
edly privileged psychiatrist-patient communications
contained in documents ‘‘must be evaluated on two
levels’’: (1) whether the document itself is a protected
communication or record thereof, as defined by the
statutory scheme, and (2) if not, whether it memorial-
izes communications between any of the three sets of
communicants within the statutory definition. Part I of
the dissenting opinion. With respect to this second level
analysis, Justice Keller concludes that the police report
memorializes some privileged, premortem ‘‘communi-
cations among mental health staff and between mental
health staff and the patient.’’ Id. Whatever the validity
of this observation, however, DMHAS did not raise this
claim before the commission or the trial court. Nor has
DMHAS raised this claim on appeal. Indeed, DMHAS
never asked the commission, the trial court, or this
court to redact any of the alleged second level, privi-
leged communications identified by Justice Keller.
Given that this claim is not preserved for our review
or presented to us on appeal, we decline to address it.
See, e.g., State v. Connor, 321 Conn. 350, 362, 138 A.3d
265 (2016) (‘‘Our appellate courts generally do not con-
sider issues that were not raised by the parties. . . .
This is because our system is an adversarial one in
which the burden ordinarily is on the parties to frame
the issues . . . .’’ (Citation omitted; internal quotation
marks omitted.)).
For the foregoing reasons, we conclude that the
police report is not privileged under §§ 52-146d (2) and
52-146e (a).23 Nonetheless, we note that the police report
contains sensitive information regarding the identity of
two mental health patients, which DMHAS consistently
has sought to redact throughout this litigation. Specifi-
cally, the report contains the name, date of birth, and
home phone number of the patient whose death was
under investigation, as well as the same information
regarding a second patient who witnessed the medical
event that led to the first patient’s death. Kovner, how-
ever, never requested any patient identifying informa-
tion under FOIA. Indeed, Kovner explicitly qualified his
public records request by stating that ‘‘[a]ll references
to the identity of a patient can be redacted.’’ Given that
patient identifying information was not requested, the
commission erred in ordering the disclosure of this
information over the objection of DMHAS.24 Accord-
ingly, all references to patient names, dates of birth,
and home phone numbers must be redacted.
B
HIPAA
Having determined that the police report must be
disclosed pursuant to FOIA, we must address whether it
is nonetheless protected from disclosure ‘‘as otherwise
provided by any federal law . . . .’’ General Statutes
§ 1-210 (a). DMHAS claims that the police report is
protected from disclosure by HIPAA, as implemented
by the Privacy Rule, because DMHAS is a ‘‘covered
entity’’ and the report contains protected ‘‘health infor-
mation’’ under 45 C.F.R. § 160.103.
FOIA ‘‘expressly exempts from the act any informa-
tion that is protected from disclosure under federal
law.’’ Commissioner of Correction v. Freedom of Infor-
mation Commission, supra, 307 Conn. 81; see General
Statutes § 1-210 (a). HIPAA’s Privacy Rule generally
prohibits a ‘‘covered entity’’ from using or disclosing
protected ‘‘health information’’ without a valid authori-
zation. 45 C.F.R. § 164.508 (a) (1) (2021). Health plans,
health care clearinghouses, and health care providers
are covered entities. Id., § 160.103. ‘‘Health information’’
is ‘‘any information . . . that: (1) Is created or received
by a health care provider, health plan, public health
authority, employer, life insurer, school or university,
or health care clearinghouse; and (2) Relates to the
past, present, or future physical or mental health or
condition of an individual; the provision of health care
to an individual; or the past, present, or future payment
for the provision of health care to an individual.’’ Id.
There are various exemptions pursuant to which a
covered entity may disclose protected health informa-
tion under HIPAA without a valid authorization. See id.,
§ 164.512. Pertinent to the present appeal, ‘‘[a] covered
entity may use or disclose protected health information
to the extent that such use or disclosure is required
by law and the use or disclosure complies with and
is limited to the relevant requirements of such law.’’
(Emphasis added.) Id., § 164.512 (a) (1). ‘‘Required by
law means a mandate contained in law that compels
an entity to make a use or disclosure of protected health
information and that is enforceable in a court of law.
Required by law includes, but is not limited to, court
orders and court-ordered warrants; subpoenas or sum-
mons issued by a court, grand jury, a governmental
or tribal inspector general, or an administrative body
authorized to require the production of information
. . . and statutes or regulations that require the pro-
duction of information . . . .’’ (Emphasis altered.)
Id., § 164.103.
FOIA is a state statute that requires the production
of public records, and, therefore, health information is
not protected by HIPAA if its disclosure is required by
FOIA. As the commentary to the Privacy Rule states:
‘‘These rules permit covered entities to make disclo-
sures that are required by state [f]reedom of [i]nforma-
tion . . . laws under § 164.512 (a). Thus, if a state
[freedom of information] law designates death records
and autopsy reports as public information that must be
disclosed, a covered entity may disclose it without an
authorization under the rule. To the extent that such
information is required to be disclosed by [freedom of
information laws] or other law[s], such disclosures are
permitted under the final rule.’’ Standards for Privacy
of Individually Identifiable Health Information, 65 Fed.
Reg. 82,462, 82,597 (December 28, 2000); see id.,
82,666–67 (Section 164.512 (a) ‘‘permits covered entities
to use or disclose protected health information when
they are required by law to do so. . . . [W]e intend this
provision to preserve access to information considered
important enough by state or federal authorities to
require its disclosure by law.’’).25
Even if we assume, without deciding, that the DMHAS
Police Department is a ‘‘covered entity’’ and that the
police report contains ‘‘health information,’’ as defined
by the Privacy Rule, the police report nonetheless is
not protected from disclosure under HIPAA because
its release is ‘‘required by law’’ under FOIA.26 45 C.F.R.
§ 164.512 (a) (2021); see part III A of this opinion. We
therefore conclude that the police report must be dis-
closed, provided that the names, dates of birth, and
home phone numbers of the two patients mentioned
therein are redacted.
The judgment is reversed in part and the case is
remanded with direction to reverse in part the decision
of the commission and to order the release of a version
of the police report that redacts only the names, dates
of birth, and home phone numbers of the patients
referred to therein; the judgment is affirmed in all other
respects.
In this opinion McDONALD, MULLINS and CRADLE,
Js., concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Robinson and Justices D’Auria, Mullins,
Ecker and Keller. Thereafter, Justice McDonald and Judge Cradle were
added to the panel and have read the briefs and appendices, and listened
to a recording of the oral argument prior to participating in this decision.
1
After the events at issue in this appeal, Whiting separated from Connecti-
cut Valley Hospital and became an independent division of the plaintiff
Department of Mental Health and Addiction Services. See Executive Order
No. 63 (January 2, 2018); see also General Statutes § 17a-560.
2
The Hartford Courant and Kovner were the complainants before the
commission and were named as defendants in the administrative appeal,
but they did not participate therein. Kovner died while the present case was
pending in the trial court. There is no claim that his death affects the status
of this appeal.
3
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 author-
ized representative.’’
The phrase ‘‘communications and records’’ is defined in § 52-146d (2) as
‘‘all oral and written communications and records thereof relating to diagno-
sis 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 psychiatric
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, we refer to the current
revision of the statute.
4
The commission reasoned that the police report did not fall within the
scope of the personal privacy exemption because it is ‘‘a police report of
a death and did not contribute to [the] making [of] a medical decision,’’ the
patient’s right of personal privacy did not survive his death, and, ‘‘[e]ven if
the [patient’s] privacy rights survived his death, the [police report] is a
legitimate matter of public concern, and disclosure of it would not be highly
offensive to a reasonable person.’’ See General Statutes § 1-210 (b) (2)
(exempting ‘‘[p]ersonnel or medical files and similar files the disclosure of
which would constitute an invasion of personal privacy’’). DMHAS does not
challenge this determination on appeal, and, therefore, we do not address
whether the police report is exempt from disclosure under § 1-210 (b) (2).
5
General Statutes § 52-146d (4) provides that the terms ‘‘ ‘[i]dentifiable’
and ‘identify a patient’ refer to communications and records which contain
(A) names or other descriptive data from which a person acquainted with
the patient might reasonably recognize the patient as the person referred
to, or (B) codes or numbers which are in general use outside of the mental
health facility which prepared the communications and records . . . .’’
6
The commission appealed and DMHAS cross appealed to the Appellate
Court from the judgment of the trial court, and we transferred the appeal
and cross appeal to this court pursuant to General Statutes § 51-199 (c) and
Practice Book § 65-2.
7
The term ‘‘resume’’ is not defined in the statutory scheme, but, as used
in § 52-146e, it appears to refer to ‘‘a summing up . . . [or] a condensed
statement . . . .’’ Webster’s Third New International Dictionary (2002) p.
1937.
8
We have characterized the psychiatrist-patient privilege as ‘‘broad’’
because it is not limited to communications between the patient and the
psychiatrist ‘‘but also [extends to] 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 [thereof] prepared at mental
health facilities.’’ (Internal quotation marks omitted.) State v. Kelly, 208
Conn. 365, 379, 545 A.2d 1048 (1988).
9
The term ‘‘thereof’’ plainly and unambiguously refers to communications,
that is, records of communications. See Webster’s Third New International
Dictionary (2002) p. 2372 (defining ‘‘thereof’’ as ‘‘of that: of it’’ or ‘‘from that
cause: from that particular’’).
10
The word ‘‘participate’’ means ‘‘to take part in something (as an enter-
prise or activity) [usually] in common with others . . . .’’ Webster’s Third
New International Dictionary (2002) p. 1646.
11
We disagree with Justice Keller that we ‘‘incorrectly [represent] this
court’s analysis’’ in Falco. Part II of the dissenting opinion. Nowhere in
Falco did we discuss the meaning of the statutory definition of ‘‘communica-
tions and records’’ in § 52-146d (2). As Justice Keller points out; see id.; we
did discuss the meaning of the term ‘‘identify a patient’’ in § 52-146d (4),
stating that ‘‘the phrase ‘ ‘‘identify a patient’’ refer[s] to communications
and records which contain (A) names or other descriptive data from which
a person acquainted with the patient might reasonably recognize the patient
as the person referred to, or (B) codes or numbers which are in general
use outside of the mental health facility which prepared the communications
and records . . . .’ ’’ Falco v. Institute of Living, supra, 254 Conn. 329,
quoting General Statutes § 52-146d (4). Nothing in our discussion of subdivi-
sion (4) of § 52-146d was intended to expand, either implicitly or explicitly,
the statutory definition of ‘‘communications and records’’ in subdivision (2)
of that statute beyond its plain language.
12
As we explain in greater detail in part III A 2 of this opinion, there is
substantial evidence in the administrative record to support the commis-
sion’s finding that DMHAS did not make the required showing that the police
report falls within the definition of ‘‘communications and records’’ in § 52-
146d (2).
13
DMHAS claims that we cannot consider the legislative history underlying
the definition of ‘‘communications and records’’ in § 52-146d (2) because
the commission failed to rely on the legislative history in the trial court,
and, therefore, the commission’s argument is not preserved for our review.
We reject this contention. Because we have determined that § 52-146d (2)
is ambiguous, we are permitted by statute to resolve the ambiguity by
considering extratextual sources of legislative intent, such as legislative
history. See General Statutes § 1-2z (permitting resort to ‘‘extratextual evi-
dence’’ if statutory language is ambiguous or yields absurd or unworkable
results). Indeed, once the text of a statute has been deemed to be ambiguous
or absurd and unworkable, consideration of legislative history undoubtedly
falls within our ‘‘independent power to identify and apply the proper con-
struction of governing law . . . .’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) Blumberg Associates Worldwide, Inc. v.
Brown & Brown of Connecticut, Inc., 311 Conn. 123, 148, 84 A.3d 840 (2014).
Our task is to ascertain the meaning of the statute, and the means available
to us are not limited to the arguments made previously by the parties.
14
To illustrate, if the very same events that occurred in the present case
had taken place at a private hospital, a police report created under the same
conditions would not be privileged from disclosure under § 52-146e (a).
15
Any differential treatment between public and private institutions with
respect to communications and records that are not privileged under §§ 52-
146d (2) and 52-146e (a) derives solely from the applicability of FOIA, the
very purpose of which is to provide access to public records. See, e.g.,
Stamford v. Freedom of Information Commission, 241 Conn. 310, 314, 696
A.2d 321 (1997) (‘‘[t]he sponsors of [FOIA] understood the legislation to
express the people’s sovereignty over the agencies [that] serve them . . .
and this court consistently has interpreted that expression to require diligent
protection of the public’s right of access to agency proceedings’’ (internal
quotation marks omitted)).
16
Like the federal Freedom of Information Act; see 5 U.S.C. § 552 (2018);
our state FOIA was enacted ‘‘in the aftermath of the Vietnam War and
Watergate . . . [when] people were fed up with furtive government’’ and
had ‘‘los[t] faith in government and politicians.’’ M. Burke, supra, 91 Conn.
B.J. 350. As we previously have recognized, ‘‘the purposes of the federal
act and of our act are virtually identical . . . .’’ (Citations omitted.) Board
of Trustees v. Freedom of Information Commission, 181 Conn. 544, 553,
436 A.2d 266 (1980).
17
This exemption, which mentions Whiting by name, reflects the legisla-
ture’s awareness of the need to modify FOIA’s disclosure requirements to
accommodate the needs of Whiting and its patient population.
18
The incident reports contain Ruggerio’s narrative of interviews with
seven members of the hospital staff and one patient who witnessed some
of the event.
19
Two of the incident reports contain the respective officers’ narrative
describing their own on scene observations of the medical incident.
20
The police report references other documents and information either
created or reviewed by the DMHAS police officers in the course of their
investigation, including video footage of the event under investigation from
cameras located at various locations within the hospital, photographs of
the scene taken by the DMHAS police, and the autopsy report of the patient
produced by the medical examiner. The police report indicates that, prior
to providing information to the state police, DMHAS obtained from all of
the patients who appeared in the video footage releases authorizing the
disclosure of their protected health related information. This is the only
reference in the police report to the subject of patient confidentiality.
21
There is no evidence in the record that the intended recipient was a
‘‘psychiatric mental health provider,’’ a term defined by statute as ‘‘a physi-
cian specializing in psychiatry and licensed under the provisions of sections
20-9 to 20-12, inclusive, an advanced practice registered nurse licensed under
chapter 378 who is board certified as a psychiatric mental health provider
by the American Nurses Credentialing Center, a person licensed to practice
medicine who devotes a substantial portion of his or her time to the practice
of psychiatry or a person reasonably believed by the patient to be so quali-
fied.’’ General Statutes § 52-146d (7).
22
Justice Keller concludes that individuals in the third category of commu-
nicants need not ‘‘participate in diagnosis or treatment directly’’ and that it
is enough that their role ‘‘is one that serves the accomplishment of the
objectives of diagnosis and treatment . . . .’’ (Internal quotation marks
omitted.) Part I of the dissenting opinion. This construction of § 52-146d
(2) reads the word ‘‘participating’’ out of the statutory definition, contrary
to our well established rules of statutory construction. See, e.g., Vibert v.
Board of Education, 260 Conn. 167, 176, 793 A.2d 1076 (2002) (‘‘[e]very
word and phrase is presumed to have meaning, and we do not construe
statutes so as to render certain words and phrases surplusage’’ (internal
quotation marks omitted)).
23
Because the police report is not a protected psychiatrist-patient commu-
nication or record thereof under §§ 52-146d (2) and 52-146e (a), we do not
address whether it will ‘‘identify a patient’’ or render a patient ‘‘identifiable’’
within the meaning of § 52-146d (4). See General Statutes § 52-146d (4)
(‘‘ ‘[i]dentifiable’ and ‘identify a patient’ refer to communications and
records which contain (A) names or other descriptive data from which a
person acquainted with the patient might reasonably recognize the patient
as the person referred to, or (B) codes or numbers which are in general
use outside of the mental health facility which prepared the communications
and records’’ (emphasis added)). We also do not address whether, on differ-
ent facts, a communication or record thereof created after the death of a
patient might fall within the protection of § 52-146e (a). See part I of the
dissenting opinion.
24
Contrary to Justice Keller’s contention, we do not suggest that ‘‘the
redaction of the patient’s name is somehow sufficient to safeguard the
patient’s privilege . . . .’’ Part II of the dissenting opinion. We hold, rather,
that the police report is not privileged and that there is no claim before us
that the report memorializes or summarizes discrete, premortem, privileged
communications between any of the individuals identified in the three cate-
gories of communicants delineated in § 52-146d (2). The names, dates of
birth, and home phone numbers of the patients must be redacted because
this information was not requested under FOIA and, therefore, is not required
to be disclosed under the statutory scheme.
25
Our sister state courts uniformly have determined that public records
required to be disclosed under state freedom of information laws are not
protected from disclosure by HIPAA, even if they were produced by a
‘‘covered entity’’ and contain ‘‘health information . . . .’’ 45 C.F.R. § 164.508(a) (1) (2021); see State ex rel. Adams County Historical Society v. Kinyoun,
277 Neb. 749, 756, 765 N.W.2d 212 (2009) (burial records were not protected
by HIPAA because they were required to be disclosed under Nebraska’s
public records law, and ‘‘HIPAA can and does give way to state laws requiring
disclosure of certain kinds of information’’); State ex rel. Cincinnati
Enquirer v. Daniels, 108 Ohio St. 3d 518, 526, 844 N.E.2d 1181 (2006)
(concluding that public record subject to disclosure under Ohio Public
Records Law was not protected by HIPAA, ‘‘even if . . . [it] did contain
‘protected health information’ as defined by HIPAA, and even if the [public
agency] operated as a ‘covered entity’ pursuant to HIPAA’’); Oregon Health &
Science University v. Oregonian Publishing Co., LLC, 362 Or. 68, 86, 403
P.3d 732 (2017) (‘‘[f]ollowing the guidance provided in the Privacy Rule
commentary, a covered entity responding to a public records request often
could comply with both HIPAA and a law requiring disclosure of public
records . . . under HIPAA’s ‘required by law’ exception’’); Abbott v. Dept.
of Mental Health & Mental Retardation, 212 S.W.3d 648, 660 (Tex. App.
2006) (statistics regarding allegations of patient abuse at Texas state facilities
were not protected from disclosure by HIPAA because Texas’ ‘‘Public Infor-
mation Act is a statute requiring the disclosure of protected health informa-
tion as described in [§] 164.512 (a) of the Privacy Rule’’).
26
During oral argument before this court, counsel for DMHAS conceded
that, if the police report must be disclosed by FOIA, then it is not protected
from disclosure by HIPAA.