The Freedom of Information Commission (FOIC) ruled correctly in upholding exemptions claimed by the Department of Corrections (DOC) when denying a pair of investigative journalists access to de-identified inmate medical records, according to a recent ruling from New Britain Superior Court.

Aviva Stahl and Seth Wessler, a pair of investigative journalists who sought de-identified health records of inmates who died in DOC custody, appealed an FOIC decision upholding DOC’s finding that the records were exempt from disclosure due to privileges in state statute that apply to privileged communications. But superior court judge Henry Cohn found that de-identifying the records would not satisfy the legislature’s concern for privacy.

In April 2021, Stahl and Wessler submitted a FOIA request that sought various types of records related to inmates who had died in DOC facilities. While DOC initially provided some responsive records, it claimed several categories of records included in the request were exempt from disclosure. These included incident reports documenting inmate deaths, health records for inmates who had died as defined in an agency administrative record, and other health records.

DOC claimed the incident reports were exempt under a provision in FOIA that allows agencies to withhold preliminary drafts and notes if the public interest in withholding them outweighs the public interest in disclosing them. A lawyer for the DOC stated at a public hearing that all but one of the 281 deaths that occurred in the time frame for the request were still under investigation. But after the hearing, DOC notified the FOIC that 180 requests were closed and 55 were open. The FOIC’s final decision notes that DOC did not provide any status on the remaining 46 deaths. The FOIC found DOC violated FOIA by claiming that exemption for the closed investigations.

The FOIC also found that, despite claiming that exemption for open cases, DOC did not provide a rationale to Stahl and Wessler demonstrating that public interest in withholding the documents outweighed disclosing them, which they are required to do. As a result of this, and because DOC did not individually review each record for which it claimed an exemption, the FOIC found the agency did not perform the balancing test required of the exemption and violated FOIA.

In withholding the health records, DOC argued that the Health Insurance Portability and Accountability Act (HIPAA) forbade disclosure, but the FOIC found they are not an agency covered by the law.

DOC also claimed a number of statutory provisions prevented the records from being disclosed.

Under FOIA, public agencies are not required to disclose records if they fall into certain categories of privileged communication, such as between a lawyer and client or doctor and patient, or if they fall under “any other privilege established by the common law or the general statutes.”

DOC cited several statutory exemptions, including one that applies to communications or records that identify people without their consent, and several that apply to health-related records or communications between a doctor or social worker and patient. They also cited a statute that prohibits the disclosure of records related to the diagnosis of HIV.

The FOIC conducted an in-camera review of health records and found some were administrative in nature and some were communications between inmates and non-medical staff unrelated to specific health conditions. The FOIC found those records were not exempt from disclosure. But it did find other health records related to medical treatment, or communications about medical treatment, were subject to the statutory privileges DOC claimed.

Stahl and Wessler argued that, even if the records were privileged, DOC was required to redact identifying information and turn them over. But the FOIC ruled that, of the statutory privileges claimed by DOC, only records related to the psychiatrist-patient privilege permitted disclosure of redacted records. The FOIC also found that because of the extent of the information in the records and because other records had been released to Stahl and Wahler, the records could not be “redacted to ensure that they do not contain information from which a person acquainted with the patient might reasonably be able to recognize the patient as the person referred to.”

Stahl and Wessler appealed the decision to the superior court, arguing the FOIC’s decision that DOC could invoke statutory privileges contradicts superior court case law. They also argued its findings on de-identification were “at odds with the privilege statutes” and a recent superior court decision.

In their complaint to the court, the pair noted that the psychiatrist-privilege statute provides for de-identification and a recent superior court ruling found that the privilege doesn’t apply to de-identified records. They also cited another recent superior court case that found that de-identification “turns on ‘the record itself, and whether or not the record identifies the patient,’ arguing that this invalidated DOC’s argument the health records could not be properly de-identified.

But Cohn ultimately rejected their arguments, emphasizing that the hearing officer who handled the FOIC case conducted the in-camera review and saw that “redaction or de-identification would not solve the possibility that a recipient of a record would recognize the de-identified individual.”

Cohn also stated that the cases Stahl and Wahler cited also did not “resolve the issue of de-identification,” noting that the case related to the psychiatrist-patient privilege did not arise from a FOIA request and did not require a court considering whether non-parties would be able to identify the patient. In the second case, he stated that the records involved were not privileged hospital records.

Because there are no previous Connecticut cases on this subject, Cohn turned to two cases from New York to argue the FOIC’s decision was correct. The first case involved a school teacher who sought records on the possible misuse of federal funds. In that case, in-camera review was ordered to determine if a proper balance between privacy and the public interest could be struck. That, Cohn concluded, was similar to the hearing officer’s in-camera review of inmate health records.

In the second case, a losing political candidate tried to obtain a former ballot cast by his opponent, with the intention of proving that the winning candidate had not voted for Donald Trump in the previous election. A court found that releasing that would violate the secrecy of the ballot because it could be identified despite facial anonymity.

Ultimately, Cohn found “protections of privilege outweigh the goals sought in the release of the records, and making the records anonymous does not sufficiently correct the legislative concern for privacy.”

The FOIC will consider the ruling at its next meeting on December 18.

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