A recent ruling from the Connecticut Supreme Court clarified the limits of exemptions to disclosure of records subject to doctor-patient privilege under the state’s Freedom of Information Act (FOIA). The court ruled that a police report generated by the police department of a state agency housed at a public mental health institution was not subject to privileged communications rules outlined in state statute and could be disclosed, with redactions, under FOIA.
The case began in 2017 when Josh Kovner, a former reporter for The Hartford Courant, submitted a FOIA request to DMHAS seeking DMHAS Police Department incident reports for deaths that occurred at the Whiting Forensic Division of Connecticut Valley Hospital, a maximum security mental health treatment facility operated by DMHAS, in 2016. Kovner’s request specifically asked for incident reports related to the death of a patient, identified as “P” in court proceedings, on December 1, 2016, which DMHAS described as due to a medical event. Kovner also noted that references to patients’ identity could be redacted.
DMHAS denied Kovner’s request, claiming the records were subject to three exemptions to FOIA disclosure: first, that they were privileged psychiatrist-patient communications; second, that the files constituted personnel or medical files which would invade personal privacy if disclosed; and, third, that the Health Insurance Portability and Accountability Act’s (HIPAA) Privacy Rule prohibited release of the information without the consent of the patient or their representative.
Kovner then filed a complaint with the Freedom of Information Commission (FOIC). At an evidentiary hearing, during which redacted and unredacted versions of the report were submitted for in camera review, DMHAS’ public information office Diana Lejardi was asked whether it was likely the agency used police reports to diagnose or treat patients. Lejardi said it was likely due to information that might be contained in witness statements that might be used for treatment or diagnosis of a patient, but that this would not be the case if the person had passed away.
The FOIC unanimously adopted the hearing officer’s decision that the police report was subject to disclosure without redaction. The commission noted that a police report contains identifying patient information, but found it was not protected by psychiatrist-patient privilege because the officers did not participate in the patient’s diagnosis or treatment. The FOIC also found the personal privacy exemption did not apply and that HIPAA exceptions were not applicable because the DMHAS was not a covered entity under the law and the police report did not include health information.
DMHAS appealed the FOIC’s decision to the Superior Court, which found that communications and records subject to statutory privilege under FOIA did encompass the police report. Since the statute encompasses all records prepared at a mental health facility that relate to a patient’s treatment, and since the DMHAS police department is a specialized force that serves Whiting specifically, the Superior Court ruled the police report was within the scope of the statutory privilege. Nevertheless, the court found the report could be disclosed with redaction to remove identifying information.
The Superior Court also ruled that HIPAA did apply to the case and was prepared by a covered entity since Whiting and DMHAS are health care providers. Despite the lack of consent from the patient or a representative, the court again ruled the report could be released under HIPAA with redaction.
Following the Superior Court’s ruling, both the FOIC and DMHAS appealed the decision to the state supreme court, seeking a final determination about whether the report is exempt from disclosure either under the communications privilege exemption of FOIA or HIPAA’s Privacy Rule.
The majority of the supreme court held that the police report was not exempt from FOIA disclosure as a privileged communication under FOIA, echoing the FOIC’s finding that psychiatrist-patient privilege only applies to records or communications relating to diagnosis or treatment of a patient.
“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 conducted 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.” the court wrote in the majority opinion, which was joined by Justices Andrew McDonald, Raheem Mullins, and Judge Melanie Cradle.
The court did rule that sensitive information contained within the police report including the names, dates of birth, and home phone numbers of P and a patient who witnessed P’s death, should be redacted. The court noted that because Kovner had said personal information could be redacted in his request, the FOIC’s ruling that the information could be disclosed was improper.
The Supreme Court also found the police report was not exempt from disclosure under HIPAA because DMHAS’ police department is not a covered entity and the police report did not contain health information.
Chief Justice Richard Robinson wrote a concurring opinion dissenting with the majority’s conclusion that the police report did not fall within the statutory definition a privileged communication. Robinson found that because the report included written documentation and oral statements by DMHAS police and staff members that arose out of a mental health incident, the report constituted a privileged communication. Robinson was in favor of disclosure, but wrote that P’s diagnosis should also be redacted.
Justices Christine Keller and Thomas D’Auria wrote a dissenting opinion arguing that the report constituted a privileged communication and should not be subject to FOIA disclosure or to disclosure through HIPAA. They argued majority’s conclusion makes private mental health records “inviolate” but makes the statutory privilege of those, particularly the indigent, who receive treatment at public mental health facilities inferior. The majority’s decision “guts the privilege of persons who receive mental health treatment from public mental health care providers, contrary to the intent of the legislature” Keller wrote.