Attorney General's Opinion
Attorney General, Richard Blumenthal
November 20, 2009
Deputy Director, Legal Services
State of
Court Operations Division
P.O. Box 150474
Dear Mr.
This letter is in response to your request for a formal legal opinion clarifying the Judicial Branch’s duty to disclose juvenile delinquency and youthful offender records to members and employees of the Board of Pardons and Paroles (the “Board”) and employees of the Department of Correction (the “Department”) pursuant to Conn. Gen. Stat. §§ 46-124(d) and 54-76l, as amended by 2008 Conn. Pub. Acts No. 08-1, §§ 23 and 24 (January 2008 Special Session).
We understand that the Judicial Branch’s current policy is to obtain a release signed by the subject of the records or his or her parent or guardian prior to disclosing juvenile delinquency and youthful offender records to the Department of Correction and the Board of Pardons and Paroles. One such release is a “Permission to Disclose Information” form that the Department of Correction asks inmates to sign. The form lists the following nine types of records: (1) any youthful offender record, including any erased youthful offender record; (2) any juvenile delinquency record, including any erased juvenile delinquency adjudication record and any mental health screening or assessment; (3) any medical records; (4) any education records; (5) any substance abuse records (alcohol/drug); (6) any records of confidential HIV/AIDS related information; (7) any mental health records (other than psychotherapy notes); (8) any records of sexually transmitted disease; and (9) any records of genetic testing. The inmate authorizes the release of specific records by initialing specific record categories on the form. We understand that in the vast majority of cases, inmates and other individuals whose records are requested sign such a form. In some cases, however, consent is withheld.
Prompted by the passage of Public Act 08-1, you have asked the following questions:
(1) Without a properly signed release by the subject of the record or his or her parent or guardian if the subject is a minor, can the Judicial Branch disclose erased juvenile delinquency records to members and employees of the Board of Pardons and Paroles or to employees of the Department of Correction who otherwise meet the criteria of section 23 of Public Act 08-1?
(2) Without a properly signed release by the subject of the record or his or her parent or guardian if the subject is a minor, can the Judicial Branch disclose erased youthful offender records to members and employees of the Board of Pardons and Paroles or to employees of the Department of Correction who otherwise meet the criteria of section 24 of Public Act 08-1?
(3) Does section 24 of Public Act 08-1 grant the authorized members and employees of the Board of Pardons and Paroles and the authorized employees of the Department of Correction access to youthful offender “records or other information of youth,” other than the records and information in the court file?
(4) Do the access rights set forth in sections 23 and 24 of Public Act 08-1 apply retroactively to juvenile and youthful offender records that were in existence prior to the adoption of the Public Act?
(5) Are members and employees of the Board of Pardons and Paroles and employees of the Department of Correction, who are otherwise authorized by sections 23 and 24 of Public Act 08-1 to obtain confidential records regarding juvenile delinquents and youthful offenders, entitled to access records that are confidential under state or federal law without a properly signed release by the subject of the record or his or her parent or guardian?
We conclude that the juvenile delinquency and youthful offender records that must be disclosed to the Board and the Department pursuant to Conn. Gen. Stat. §§ 46b-124(d) and 54-76l, as amended, include erased records. We further conclude that the youthful offender records that are subject to disclosure under Conn. Gen. Stat. § 54-76l(b) are not limited to court files, but rather include any youthful offender records that meet the relevancy requirement set forth in that statute, as amended by Public Act 08-01, § 12(b) (Jan. Sp. Sess.). All youthful offender and juvenile delinquency records subject to disclosure under §§ 46b-124(d) and 54-76l, as amended, are subject to disclosure even if they pre-date the adoption of Public Act 08-1 (Jan. Sp. Sess).
With regard to your final question, we conclude that the determination whether the disclosure provisions of Conn. Gen. Stat. §§ 46b-124(d) and 54-76l override state and federal confidentiality laws is a highly fact-dependent inquiry that cannot be answered definitively in the absence of a specific factual scenario. In each case, whether any particular confidentiality law applies will depend on the precise nature of the records at issue, how they were created, and the nature of the entity that is holding them. In the absence of that information, we have provided general guidance and will address specific situations on a case by case basis as they arise in the future.
Your first question asks whether Conn. Gen.
In construing a statute, the “fundamental objective is to ascertain and give effect to the apparent intent of the legislature.” American Promotional Events, Inc. v. Blumenthal, 285 Conn. 192, 202 (2008). In searching for the legislative intent, a court looks “first to the text of the statute itself and its relationship to other statutes.” Id., citing Conn. Gen. Stat. § 1-2z. If the text of the statute is not clear and unambiguous, it is appropriate to look to the statute’s “legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 679 (2004).
The plain language of
Subsection (d) of § 46b-124 sets forth multiple exceptions to the general confidentiality provision of § 46b-124(c). One such exception - - the one that you reference, which was added by Public Act 08-1, § 23 -- permits the disclosure of juvenile delinquency records to members and employees of the Board of Pardons and Paroles and employees of the Department of Correction who require access to such records to determine an inmate’s needs while incarcerated or on parole, or his or her suitability for parole or pardon. Specifically, § 46b-124(d) states that:
Records of cases of juvenile matters involving delinquency proceedings shall be available to . . . members and employees of the Board of Pardons and Paroles and employees of the Department of Correction who, in the performance of their duties, require access to such records, provided the subject of the record has been convicted of a crime in the regular criminal docket of the Superior Court and such records are relevant to the performance of a risk and needs assessment of such person while such person is incarcerated, the determination of the person’s suitability for release from incarceration or for a pardon, or the determination of the supervision and treatment needs of such person while on parole or other supervised release.
Conn. Gen. Stat. § 46b-124(d)(vi). Although this language is an express grant of authority to the Board of Pardons and Paroles and the Department of Correction to access otherwise confidential juvenile delinquency records, it does not, as you point out, specify whether such records include “erased” records.
Pursuant to
As noted above, Conn. Gen. Stat. § 46b-124(d) is an express grant of authority to the Board of Pardons and Paroles and the Department of Correction to access confidential juvenile delinquency records. Had the legislature intended to except one type of confidential record, namely erased records, from this express grant of authority, it certainly could have done so. See, e.g., Conn. Gen. Stat. § 1-215(a)(requiring disclosure of arrest records, “except a record erased pursuant to chapter 961a”); § 54-142k (permitting disclosure of nonconviction information “provided no erased record may be released”). In the absence of any such explicit exception, however, we cannot read one into the statute. Santopietro v. City of New Haven, 239 Conn. 207, 215 (1996)(“[i]n applying a statute this court is bound by its terms and cannot read into its plain language exceptions that the legislature has not created”); State v. Orr, 291 Conn. 642, 656 (2009).
The conclusion that the legislature did not intend to except erased records from the disclosure provisions of Conn. Gen. Stat. § 46b-124(d) is further supported by the legislative history of the statute, and specifically by the history of Public Act 08-1. As this history makes clear, the purpose of the disclosure provision was to address the problems caused by the Board and the Department’s lack of access to the confidential juvenile records of adult offenders who are being considered for prison services and parole. During House debate on the Act, Representative Lawlor cited a tragic case in which the Parole Board released an adult offender who had a juvenile history, including a negative mental health history, which was unknown to the Board. 51 Conn. H.R. Proc., pt. 1, 2008 Jan. Sp. Sess. 49-50 (Jan. 22, 2008)(remarks of Rep. Lawlor). After being released, the offender allegedly committed several horrific murders. As Representative Lawlor explained, the Act seeks to prevent such tragedies by allowing “the Board of Pardons and Paroles and the Department of Corrections to have access to juvenile histories for offenders who have been convicted as adults and sent to prison.” 51 Conn. H.R. Proc., pt. 1, 2008 Jan. Sp. Sess. 47-48 (Jan. 22, 2008)(remarks of Rep. Lawlor). Although such histories are confidential, Representative Lawlor explained that by being arrested as an adult, an offender effectively forfeits the privilege of confidentiality. Significantly, he never suggested that erased records would be treated any differently than other juvenile delinquency records:
[P]eople make mistakes when they’re young, learn their lesson, don’t repeat it, and the confidentiality of the juvenile justice system ensures that that fact, that record won’t haunt someone for the rest of their life, the mistake that they made at 14, 15, 16, 17 years old. But what we are talking about here are people who after that have gotten arrested as adults, convicted as adults, sent to prison as adults. They have an adult record now, and they have a prison record, and even to be eligible for parole, you have to be sentenced to at least two years to serve. So that person has really forfeited the privilege they got from having been treated as a juvenile because the records would be sealed. But we are not talking about making these records public. We’re simply allowing the Board of Parole and Pardons and the Department of Corrections to have access to this to make the decisions they need to make about handling that particular offender in prison or on parole in the community.
51 Conn. H.R. Proc., pt. 1, 2008 Jan. Sp. Sess. 48-49 (Jan. 22, 2008)(remarks of Representative Lawlor). Construing the Act to exempt erased records from disclosure would deprive the Board and the Department of juvenile delinquency information that could be highly relevant to decisions concerning parole and offender services and thereby frustrate the purpose of the Act to ensure that in making such decisions, the Board and Department are fully informed of an offender’s juvenile history.
Accordingly, we conclude that pursuant to Conn. Gen. Stat. § 46b-124(d), as amended by Public Act 08-1, the Judicial Branch may release erased juvenile delinquency records to members and employees of the Board of Pardons and Paroles and to employees of the Department of Correction without a signed release from the subject of the record or his or her guardian.
Your second question is similar to your first question, except that it concerns youthful offender records rather than juvenile delinquency records. Specifically, you ask whether the Judicial Branch may disclose to the Board and the Department, without a properly signed release, erased youthful offender records that otherwise meet the requirements of Conn. Gen. Stat. § 54-76l, as amended by Public Act 08-1.
Conn. Gen.
The records of any such youth, or any part thereof, . . . shall . . . be available to members and employees of the Board of Pardons and Paroles and employees of the Department of Correction who, in the performance of their duties, require access to such records, provided the subject of the record has been adjudged a youthful offender and sentenced to a term of imprisonment or been convicted of a crime in the regular criminal docket of the Superior Court, and such records are relevant to the performance of a risk and needs assessment of such person while such person is incarcerated, the determination of such person’s suitability for release from incarceration or for a pardon, or the determination of the supervision and treatment needs of such person while on parole or other supervised release.
Conn. Gen. Stat. § 54-76l (b), as amended by Public Act 08-1, § 24.
Like juvenile delinquency records, youthful offender records are subject to erasure. When a youthful offender turns twenty-one,
The legislative history of the youthful offender statutes makes clear that their purpose is “to protect and possibly rehabilitate those youths who ha[ve] made a mistake because of their immaturity.” State v. Matos, 240 Conn. 743, 750 (1997). By providing for erasure, the laws are intended to permit youths to be rehabilitated “without the stigma of a criminal record.” 15
As was the case with Public Act 08-1’s amendment of the statute governing juvenile delinquency records, the Act’s amendment of Conn. Gen. Stat. § 54-76l(b) governing youthful offender records does not make any exception to disclosure for erased records. As with juvenile delinquency records, had the legislature intended to except erased records from the disclosure requirement, it certainly could have done so. See, e.g., Conn. Gen. Stat. § 1-215(a)(requiring disclosure of arrest records, “except a record erased pursuant to chapter 961a”); § 54-142k (permitting disclosure of nonconviction information “provided no erased record may be released”). In the absence of any such explicit exception, however, we cannot read one into the statute. Santopietro v. City of New Haven, 239 Conn. 207, 214 (1996)(“[i]n applying a statute this court is bound by its terms and cannot read into its plain language exceptions that the legislature has not created”).
Furthermore, as discussed with regard to juvenile delinquency records, the legislative history of Public Act 08-1 makes clear that the legislature intended the Act to permit the Board and the Department to be fully informed of an offender’s juvenile history before making decisions concerning parole and offender services. Construing the Act’s disclosure provision to exclude erased records would frustrate this purpose, which could not have been the legislative intent.
Accordingly, in response to your second question, we conclude that the Judicial Branch may disclose erased youthful offender records to members and employees of the Board of Pardons and Paroles or to employees of the Department of Corrections without a release signed by the offender or his or her guardian.
In your third question you ask whether section 24 of Public Act 08-1, which amends
We reach this conclusion based on the text of § 54-76l(a). The statute states that the “records or other information of a youth” includes “fingerprints, photographs and physical descriptions.” It further states that “such fingerprints, photographs and physical descriptions submitted to the State Police Bureau of Identification of the Division of State Police within the Department of Public Safety . . . . shall be retained as confidential matter in the files of the bureau and be opened to inspection only as provided in this section.” Conn. Gen. Stat. § 54-76l(a). “Other data ordinarily received by the bureau, with regard to persons arrested for a crime,” shall also be filed by the bureau as confidential and open to inspection only as provided. Id. Thus, at a minimum, the information that is confidential pursuant to § 54-76l(a), and may be shared pursuant to § 54-76l(b), includes not only court records, but also all files on the youth maintained by the State Police Bureau of Identification.
There is nothing in the text of §54-76l, however, that limits disclosure under subsection (b) to only those records expressly mentioned as confidential in subsection (a). On the contrary, the statute places no limit whatsoever on the types of confidential youthful offender records that may be disclosed to members and employees of the Board of Pardons and Paroles and authorized employees of the Department of Correction, other than that the records must be “relevant to the performance of a risk and needs assessment of [the youthful offender] while such person is incarcerated, the determination of such person’s suitability for release from incarceration or for a pardon, or the determination of the supervision and treatment needs of such person while on parole or other supervised release.” Conn. Gen. Stat. § 54-76l(b), as amended by Public Act 08-01, § 12(b) (Jan. Sp. Sess.). In the absence of any further limitation on the records that may be disclosed, we cannot read one into the statute. Santopietro v. City of New Haven, 239 Conn. 207, 215 (1996). Accordingly, we conclude that the youthful offender records that may be disclosed to the Board and the Department pursuant to § 54-76l(b) are not limited to the court file.
Your fourth question asks whether the provisions of sections 23 and 24 of Public Act 08-1 granting members and employees of the Board of Pardons and Paroles and employees of the Department of Corrections access to juvenile delinquency and youthful offender records apply to records that were in existence prior to the adoption of the Public Act. We conclude that Public Act 08-1 applies to records that were in existence prior to the adoption of the Act.
“Whether to apply a statute retroactively or prospectively depends upon the intent of the legislature in enacting the statute.” Walsh v. Jodoin, 283 Conn. 187, 195 (2007). “In order to determine the legislative intent, we utilize well established rules of statutory construction.” Id. One such rule presumes that the legislature does not intend to adopt statutes that lead to absurd consequences or bizarre results. Hartford Courant Co. v. Freedom of Information Commission, 261 Conn. 86, 101 (2002).
The Connecticut Supreme Court applied this rule in Reid v. Zoning Board of Appeals of the Town of Lebanon, 235 Conn. 850, 862 (1996), in which it considered whether a statutory amendment, which stated that zoning variances ran with the land and were not affected by a subsequent transfer of the property, applied retroactively to cure invalid variances granted prior to the effective date of the amendment. In concluding that the legislature must have intended the amendment to apply retroactively, the court reasoned that it would be “nonsensical” to assume that the legislature would create an act that applied only to invalid variances that had not yet been granted and presumed that zoning boards would continue to impose invalid conditions in the future. Id. A more logical conclusion was that the act was intended to address the current problem of invalid conditions that had been placed on variances in the past. Accordingly, the court construed the act to apply retroactively to address that problem. Id.
Similarly, it would be nonsensical to construe Public 08-1, §§ 23 and 24, to apply only to records developed prospectively, such that the Board and the Department could only view records at some future time when events in those records no longer predated the October 2008 effective date of the Act. Since 1995, Conn. Gen. Stat. §§ 46b-124(d) and 54-76l have permitted disclosure of juvenile delinquency and youthful offender records to and between a wide range of individuals and state agencies that are involved in delinquency proceedings and provide services to youthful offenders. See 1995 Conn. Pub. Acts No. 95-225. As a result, these individuals and entities are currently permitted to view past records. If Public Act 08-1, §§ 23 and 24, which amended §§ 46b-124(d) and 54-76l, were construed to prohibit access to records that predate the effective date of the Act, the result would be bizarre in that the individuals and entities listed in §§ 46b-124(d) and 54-76l would have access to records that predate the Act, and could share such records among themselves, except the members and employees of the Board of Pardons and Paroles and the Department of Correction. These latter individuals and entities would not be permitted to see any records until sometime in the distant future when all events referenced in the records were events that occurred after October 1, 2008. This result would be nonsensical.
Such a result would also frustrate the legislature’s intent to address the current problems caused by the Board and the Department’s lack of information when adult offenders with juvenile records are considered for prison services and parole. As noted above, during House debate on Public Act 08-1, Representative Lawlor explained that the Act would allow “the Board of Pardons and Paroles and the Department of Corrections to have access to juvenile histories for offenders who have been convicted as adults and sent to prison.” 51 Conn. H.R. Proc., pt. 1, 2008 Jan. Sp. Sess. 47-48 (Jan. 22, 2008)(remarks of Rep. Lawlor). Such access would ensure that the Board and the Department had the information necessary to make informed decisions as to “whether or not [an offender] should be released and when, and what type of supervision and more importantly, what kind of services does he need.” Id. at 47. By stating that the Act would provide access to adult offenders’ “juvenile histories,” and referencing recent tragic events caused by the lack of access to such information, Representative Lawlor implied that the Act would provide immediate access to past records to address a current problem. Accordingly, we conclude that the legislative intent of sections Public Act 08-1, §§ 23 and 24, was to permit access to juvenile and youthful offender records that predate the effective date of the Act.
In your final question you ask whether there are state or federal confidentiality laws that would prohibit the Judicial Branch from disclosing juvenile delinquency or youthful offender records, notwithstanding the provisions of Public Act 08-1. By way of example, you mention the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320 et seq., the Public Health Service Act, 42 U.S.C. § 290dd-2, the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, and
As explained above, because the answer to this question will vary depending on the facts of each particular case, it is most appropriately addressed on a case-by-case basis. Accordingly, our response is intended to provide only general guidance.
Looking first at state confidentiality laws, this office issued a legal opinion in 1997 in which we considered whether Conn. Gen. Stat. § 19a-583 et seq., which limits disclosure of HIV-related information, and §§ 52-146c, 52-146d, and 52-146o, which limit disclosure of physician-patient communications, barred a juvenile detention center from disclosing medical and psychiatric records to contractors to whom disclosure of juvenile delinquency records was required by Conn. Gen. Stat. § 46b-124. See 1997 Conn. AG Lexis 1 (Aug. 12, 1997). We concluded that the state confidentiality laws did not bar disclosure because § 46b-124 was an express grant of authority to contractors to obtain “records of cases of juvenile matters,” which included “medical, psychological, psychiatric and social welfare studies and reports by juvenile probation officers, public and private institutions, social agencies and clinics.” Id., quoting Conn. Gen. Stat. § 46b-124. We noted that when Public Act 95-225 amended § 46b-124 in 1995, the amendment was intended to reform a formerly secretive system to permit the exchange of relevant information concerning delinquent children among all professionals engaged in their prosecution and treatment.5 Well established rules of statutory construction provide that the legislature is presumed to be aware of all existing relevant statutes, including confidentiality provisions, when it enacts new legislation, Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672, 678 (2006), and to have intended to create a harmonious and consistent body of law. Wiseman v. Armstrong, 269 Conn. 802, 814 (2004). In addition, specific terms governing a subject matter are presumed to prevail over general language of the same or another statute that might otherwise prove controlling. CHRO v. Truelove & Maclean, 238 Conn. 337, 346 (1996). Applying these rules, we concluded that the specific disclosure provisions of § 46b-124 pertaining to juvenile delinquency records prevailed over the more general confidentiality provisions of Conn. Gen. Stat. §§ 19a-583 et seq., 52-146c, 52-146d, and 52-146o.
The same analysis applies to the current amendments to § 46b-124(d) and § 54-76l set forth in Public Act 08-1. In Public Act 08-1, § 23, the legislature expressly provides that “[r]ecords of cases of juvenile matters involving delinquency proceedings shall be available to . . . employees and authorized agents of state or federal agencies . . . [including] members and employees of the Board of Pardons and Paroles and employees of the Department of Correction who, in the performance of their duties, require access to such records.” Conn. Gen. Stat. § 46b-124(d), as amended by Public Act 08-1, § 23. “Records of cases of juvenile matters” is defined broadly, as it was in 1997, to include not only court and law enforcement records, but also “medical, psychological, psychiatric and social welfare studies and reports by juvenile probation officers, public or private institutions, social agencies and clinics.” Conn. Gen. Stat. § 46b-124(a), quoted in full in footnote 5. As noted above, the purpose of § 23 is to ensure that the Board and the Department have access to the information necessary to make informed decisions as to whether an offender needs particular treatment while in prison or should be released on parole. Emphasizing the importance of such access, Representative Lawlor noted during House debate on the Act that the Board’s and the Department’s decisions concerning the offender who recently allegedly committed several horrible murders while on parole would likely have been different if the Board and the Department had had access to the offender’s confidential juvenile mental health records. 51 Conn. H.R. Proc., pt. 1, 2008 Sess. 49-50 (Jan. 22, 2008 special session)(remarks of Rep. Lawlor).
Given the legislative intent of § 46b-124(d), as amended by Public Act 08-1, § 23, to provide the Board and Department with access to otherwise confidential juvenile delinquency records, including medical and psychiatric records, we conclude that it overrides more general state confidentiality laws such as Conn. Gen. Stat. § 19a-583 to the extent that such laws govern records that fall within the scope of § 46b-124(a).
Section 46b-124(d) does not, however, override the confidentiality provisions of §§ 46b-124(j) or 46b-146. Section 46b-124(j), as amended by Public Act 08-86, § 4, states that “[n]otwithstanding the provisions of section (d) of [§ 46b-124],” certain mental health information may “be used solely for planning and treatment purposes” and must otherwise be confidential and retained in the files of the entity providing services or performing screening. The information that may not be disclosed is any information concerning a child that is obtained during “any mental health screening or assessment” of the child, during the provision of services to a family with service needs pursuant to § 46b-149(b), or during the performance of an educational evaluation of the child pursuant to § 46b-149(e). The fact that § 46b-124 includes this express exception to disclosure further supports the conclusion that mental health records are otherwise subject to disclosure pursuant to § 46b-124(d) and are not protected by state confidentiality laws.
Turning to youthful offender records, our analysis as to whether § 54-76l overrides general state confidentiality laws is similar to our analysis concerning § 46b-124(d). As discussed above with regard to question three, the legislature has not limited the youthful offender records that are subject to disclosure pursuant to § 54-76l(b). Instead, the statute provides broad authority to members and employees of the Board of Pardons and Paroles and employees of the Department of Correction to access any youthful offender record that satisfies the statute’s relevancy requirement. Accordingly, § 54-76l(b) implicitly permits access to medical, psychological, psychiatric and social welfare studies and reports by juvenile probation officers, public or private institutions, social agencies and clinics, provided those documents are “relevant to the performance of a risk and needs assessment of [the youthful offender] while such person is incarcerated, the determination of such person’s suitability for release from incarceration or for a pardon, or the determination of the supervision and treatment needs of such person while on parole or other supervised release.” Conn. Gen. Stat. § 54-76l(b), as amended by Public Act 08-01, § 12(b) (Jan. Sp. Sess.). Because § 54-76l(b) permits disclosure of all confidential records concerning youthful offenders, we conclude that § 54-76l overrides more general state confidentiality provisions pertaining to medical and psychiatric records.6
Turning to federal law, you question whether confidentiality laws such as the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320 et seq., the Public Health Service Act, 42 U.S.C. § 290dd-2, and the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, prohibit disclosure of juvenile delinquency or youthful offender records that otherwise would be disclosed pursuant to § 46b-124(d) and § 54-76l. Once again, we emphasize that our response to this issue is intended to provide only general guidance, given the lack of a specific factual scenario.
The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), 42 U.S.C. § 1320 et seq., and its implementing regulations, 45 C.F.R. parts 160 & 164, protect the privacy of individuals’ medical records. Although HIPAA generally limits the ability of health care providers, health plans, and health care clearinghouses (collectively referred to as “covered entities”) to disclose individually identifiable health information without a patient’s consent, there are numerous exceptions to the consent requirement. See 45 C.F.R. § 164.512. One such exception states that:
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.
45 C.F.R. § 164.512(a)(1)(emphasis added). For purposes of HIPAA, the phrase “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, [including] . . . statutes or regulations that require the production of information.
45 C.F.R. § 164.103. This definition is intended to be read broadly and encompasses mandates imposed by state, as well as federal, law. Final Commentary to HIPAA Regulations, 65 Fed. Reg. 82462, 82668 (Dec. 28, 2000).
Because Conn. Gen. Stat. § 46b-124(d), as amended by Public Act 08-1, § 23, mandates that “[r]ecords of cases of juvenile matters involving delinquency proceedings shall be available to . . . members and employees of the Board of Pardons and Paroles and employees of the Department of Corrections,” id. (emphasis added), and the term “records” includes “medical, psychological, psychiatric and social welfare studies and reports,” Conn. Gen. Stat. § 46b-124(a), we conclude that the disclosure of health information contained in juvenile delinquency records is “required by law.” Accordingly, such disclosure would not be barred by HIPAA. See 2007 Conn. AG Lexis 4 (March 30, 2007)(records required by law to be disclosed to Child Advocate are excepted from HIPAA privacy provisions).
With regard to youthful offender records, Conn. Gen. Stat. § 54-76l does not explicitly require the disclosure of medical, psychological, and psychiatric records. It does, however, implicitly require disclosure of such information if it is “relevant to the performance of a risk and needs assessment of [a youthful offender] while such person is incarcerated, the determination of such person’s suitability for release from incarceration or for a pardon, or the determination of the supervision and treatment needs of such person while on parole or other supervised release.” Conn. Gen. Stat. § 54-76l(b), as amended by P.A. 08-01, § 12(b). We conclude that to the extent that this relevant information includes health information, it is required by law to be disclosed and disclosure is not restricted by HIPAA. See Abbott v. Texas Dept. of Mental Health and Mental Retardation, 212 S.W. 3d 648, 659 (Tex. Ct. of Appeals 2006)(health information that was required to be disclosed pursuant to state’s Public Information Act fell within “required by law” exception to HIPAA even though the state law did not explicitly mention health information).7
You further ask whether the Public Health Service Act, 42 U.S.C. § 290dd-2 (the “Act”), would bar disclosure of juvenile delinquency and youthful offender health records. The Public Health Service Act prohibits the disclosure of “[r]ecords of the identity, diagnosis, prognosis or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States.” 42 U.S.C. 290dd-2(a). The purpose of the Act is to encourage drug and alcohol abusers to seek treatment without fear of criminal charges or investigations, 42 U.S.C. § 290dd-2(c), and “to insure that an alcohol or drug abuse patient in a federally assisted alcohol or drug program is not made more vulnerable by reason of the availability of his or her patient record than an individual who has an alcohol or drug problem and who does not seek treatment.” 42 C.F.R. § 2.3(b)(2). Federal regulations implementing the Act explicitly state that “no State law may either authorize or compel any disclosure prohibited by these regulations.” 42 C.F.R. § 2.20.
In the absence of the patient’s prior written consent, the Act permits disclosure of protected substance abuse records in the following limited situations: (1) to medical personnel in a medical emergency; (2) to qualified personnel for the purpose of conducting scientific research, management audits, financial audits, or program evaluation; (3) within the Uniformed Services and components of the Department of Veterans Affairs furnishing health care to veterans; (4) to report suspected child abuse and neglect to state authorities; and (5) to those who obtain a court order granted after application showing good cause therefor, including the need to avert a substantial risk of death or serious bodily harm. 42 U.S.C. § 290dd-2(b) and (e). Given the limited nature of these exceptions, it is unlikely that records protected by the Act could be disclosed to the Board and the Department for the purposes set forth in §§ 46b-124(b) and 54-76l in the absence of consent unless the disclosure were authorized by court order.
The third federal confidentiality law that you mention is the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. § 1232g. FERPA requires educational institutions, as a condition of receiving federal funds, to protect the privacy of students’ educational records and not to disclose those records without parental consent, except in specific situations.
Certain types of disclosures are explicitly exempt from FERPA. In particular, FERPA permits disclosure of student records to:
State and local officials or authorities to whom such information is specifically allowed to be reported or disclosed pursuant to State statute adopted . . . after November 19, 1974, if (I) the allowed reporting or disclosure concerns the juvenile justice system and such system’s ability to effectively serve, prior to adjudication, the student whose records are released; and (II) the officials and authorities to whom such information is disclosed certify in writing to the educational agency or institution that the information will not be disclosed to any other party except as provided under State law without the prior written consent of the parent of the student.
20 U.S.C. § 1232g(b)(1)(E). This exception would appear to permit disclosure of student records to the Board and the Department pursuant to §§ 46b-124(d) and 54-76l were it not for the fact that the statutorily permitted disclosure referenced in the exception must concern the juvenile justice system’s ability to serve the student in question “prior to adjudication.” Sections 46b-124(d) and 54-76l provide for disclosure only after “the subject of the record has been convicted of a crime in the regular criminal docket of the Superior Court” or sentenced to a term of imprisonment. Thus, §§ 46b-124 (d) and 54-76l do not concern the juvenile justice system’s ability to serve the student in question “prior to adjudication” and do not satisfy the requirements of this exception.
Two other exceptions to FERPA concern students who have committed violent crimes or sex offenses. Specifically, FERPA does not prohibit a postsecondary institution from disclosing the final results of any disciplinary proceeding conducted against a student who is alleged to have committed a violent crime, as defined in 18 U.S.C. § 16, or nonforcible sex offense, if the institution determines that the student violated the institution’s rules or policies with respect to the crime or offense. 20 U.S.C. § 1232g(b)(6)(B). In addition, FERPA does not bar an educational institution from disclosing information provided to it pursuant to 42 U.S.C. § 14071 concerning students who are required to register as sex offenders. 20 U.S.C. § 1232g(b)(7)(A). Thus, to the extent that such information is in records subject to disclosure under §§ 46b-124(d) and 54-76l, FERPA would not bar its disclosure to the Board and the Department.
We trust that the foregoing adequately responds to your inquiry.
Very truly yours,
RICHARD BLUMENTHAL
ATTORNEY GENERAL
1 It should be noted that when records are “erased,” they are not physically destroyed. “Erasure involves sealing the files and segregating them from materials which have not been erased and protecting them from disclosure.” Doe v. Manson, 183 Conn. 183, 185 (1981).
2 The required conditions for erasure are: [1] that the child has been discharged from the supervision of the Superior Court or from the custody of the Department of Children and Families or from the care of any other institution or agency to whom he has been committed by the court, [2] that “at least two years or, in the case of a child convicted as delinquent for the commission of a serious juvenile offense, four years have elapsed from the date of such discharge, [3] that no subsequent juvenile proceeding has been instituted against such child, [4] that such child has not been found guilty of a crime and [5] that such child has reached sixteen years of age.” Conn. Gen. Stat. § 46b-146.
3 A “youth” is defined as “(A) a minor who has reached the age of sixteen years, but has not reached the age of eighteen years at the time of the alleged offense, or (B) a child who has been transferred to the regular criminal docket of the Superior Court pursuant to section 46b-127.” Conn. Gen. Stat. § 54-76b.
4 Specifically, § 46b-124(a) states that: “For purposes of this section, ‘records of cases of juvenile matters’ includes, but is not limited to, court records, records regarding juveniles maintained by the Court Support Services Division, records regarding juveniles maintained by an organization or agency that has contracted with the judicial branch to provide services to juveniles, records of law enforcement agencies including fingerprints, photographs and physical descriptions, and medical, psychological, psychiatric and social welfare studies and reports by juvenile probation officers, public or private institutions, social agencies and clinics.”
5 Representative Lawlor explained during House debate on Public Act 95-225 that “[a] great many people were frustrated by the confidentiality in the juvenile justice system. In this bill, we allow any professional working within the system, in other words, the prosecutors, the probation officers, the Department of Children and Family social workers, the teachers, the police officers, people from private organizations which have contracted with the court to provide supervision to . . . juveniles going through the system, can talk to one another about any case. There are no confidentiality restrictions for those people talking about cases pending within the system.” 38 Conn. H.R. Proc., pt. 8, 1995 Sess. 2938 (May 18, 1995)(remarks of Representative Lawlor).
6 The one exception, as for juvenile delinquency records, is for certain mental health information described in Conn. Gen. Stat. § 46b-124(j). This statute requires that any mental health information concerning a child that is obtained during “any mental health screening or assessment” of the child, during the provision of services to a family with service needs pursuant to § 46b-149(b), or during the performance of an educational evaluation of the child pursuant to § 46b-149(e), must be kept confidential and may be disclosed “only for the purposes of any court-ordered evaluation or treatment of the child or provision of services to the child, or pursuant to sections 17a-101 to 17a-101e, inclusive, 17b-450, 17b-451 or 51-36a.”
7 Another exception to HIPAA’s privacy provisions that may be relevant states that:
A covered entity may disclose protected health information in the course of any judicial or administrative proceeding . . . [i]n response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order.
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