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Final Decision FIC2013-360
In the Matter of a Complaint by
CORRECTED FINAL DECISION
Aaron Romano,
     Complainant
     against
Docket #FIC 2013-360
Commissioner, State of Connecticut,
Department of Consumer Protection;
and State of Connecticut, Department
of Consumer Protection,
     Respondents
May 14, 2014

     The above-captioned matter was heard as a contested case on October 29, 2013 at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. 
     After consideration of the entire record, the following facts are found and conclusions of law are reached:
     1.  The respondents are public agencies within the meaning of §1-200(1), G.S.
     2.  It is found that, by letter dated May 3, 2013, the complainant made a request to the respondents for the names and addresses of all physicians who have submitted or have pending submissions for written certifications for medical marijuana with the Department of Consumer Protection.
     3.  It is found that, by letter dated May 8, 2013, the respondents informed the complainant that his request was denied stating that the names and addresses requested are not subject to public disclosure pursuant to §21a-408d(b), G.S.
     4.  It is found that by e-mail dated May 13, 2013, the complainant challenged the respondents’ denial of his request stating he was a private entity performing research and would fall within the “ambit of the statute contained in §21a-408d(b)(3), G.S.,” and asked that the respondents reconsider his request.
     5.  It is found that by e-mail dated May 14, 2013, the complainant was informed that the respondents maintained their position with respect to the requested records and that his request was denied.
     6.  By letter dated and filed on June 13, 2013, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his records request.
     7. Section 1-200(5), G.S., provides:
"Public records or files" means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.
     8.  Section 1-210(a), G.S., provides in relevant part that:
Except 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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. 
     9.  Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
     10. It is found that the requested records are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S. 
     11. Section 21a-408d, G.S., provides in relevant part as follows:
Qualifying patient and primary caregiver to register with Department of Consumer Protection. Change in information. Fee. Confidentiality of registry information. (a) Each qualifying patient who is issued a written certification for the palliative use of marijuana under subdivision (1) of subsection (a) of section 21a-408a, and the primary caregiver of such qualifying patient, shall register with the Department of Consumer Protection. Such registration shall be effective from the date the Department of Consumer Protection issues a certificate of registration until the expiration of the written certification issued by the physician. The qualifying patient and the primary caregiver shall provide sufficient identifying information, as determined by the department, to establish the personal identity of the qualifying patient and the primary caregiver. The qualifying patient or the primary caregiver shall report any change in such information to the department not later than five business days after such change. The department shall issue a registration certificate to the qualifying patient and to the primary caregiver and may charge a reasonable fee, not to exceed twenty-five dollars, for each registration certificate issued under this subsection. Any registration fees collected by the department under this subsection shall be paid to the State Treasurer and credited to the account established pursuant to section 21a-408q.
(b) Information obtained under this section shall be confidential and shall not be subject to disclosure under the Freedom of Information Act, as defined in section 1-200, except that reasonable access to registry information obtained under this section and temporary registration information obtained under section 21a-408n shall be provided to: (1) State agencies, federal agencies and local law enforcement agencies for the purpose of investigating or prosecuting a violation of law; (2) physicians and pharmacists for the purpose of providing patient care and drug therapy management and monitoring controlled substances obtained by the qualifying patient; (3) public or private entities for research or educational purposes, provided no individually identifiable health information may be disclosed; (4) a licensed dispensary for the purpose of complying with sections 21a-408 to 21a-408n, inclusive; (5) a qualifying patient, but only with respect to information related to such qualifying patient or such qualifying patient's primary caregiver; or (6) a primary caregiver, but only with respect to information related to such primary caregiver's (b)(3)qualifying patient. [Emphasis added]
     12. At the hearing on this matter, and in their brief, the respondents argued that this Commission lacks jurisdiction to hear the complainant’s appeal because the requested records are both confidential and exempt from disclosure under the FOI Act pursuant §21a-408d(b), G.S.  Accordingly, the respondents moved to dismiss the appeal. The respondents argued, in the alternative, that the complaint should be dismissed because the complainant failed to establish that he falls within any of the exceptions found in §21a-408d(b), G.S. 
     13. With respect to the respondents’ jurisdictional argument, they contend that this Commission only has jurisdiction to order the disclosure of “public records” and argued in essence that because §21a-408d, G.S., states that the requested records are confidential and shall not be subject to disclosure under the FOI Act, such records are not “public records” and therefore any appeal from a denial for those records falls outside of this Commission’s jurisdiction. 
     14. It is found that §21a-408d, G.S., only states that the records shall not be subject to disclosure under the FOI Act and does not state that such records are not public records within the meaning of §1-200(5), G.S.  Consequently, as already found in paragraph 10, above, the requested records are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S. 
     15. Notwithstanding the finding in paragraph 14, above, the Connecticut Supreme Court has held that when the legislature provides that information contained in public records shall be both confidential and not subject to the disclosure requirements of the FOI Act, those provisions are not diminished simply because it has also provided for categories of exceptions.  See State v. Orr, 291 Conn. 642, 654-57 (2009). (Analysis of social-worker’s privileges contained in statute mandating confidentiality with exceptions). See also Marlowe v. State of Connecticut, Freedom of Information Commission, Superior Court, J.D. New Britain, Docket No. CV 99 0493141 (October 12, 1999, McWeeny, J.), (Court ruled that the FOI Commission lacks jurisdiction to determine the rights of access by a parent or guardian to DCF records pertaining to child protection activities). 
     16. It is concluded that this Commission must consider the complainant’s access rights as a member of the public and not as a potential researcher under §21a-408d, G.S. See Groton Police Dept. v. FOIC, 104 Conn.App. 150, 165 (2007) (FOIC must consider rights of general public.)
     17. It is found that the records at issue herein constitute information within the meaning of §21a-408d, G.S.
     18. It is concluded that §21a-408d, G.S., is a state statute which provides that the records at issue herein shall not be subject to mandatory disclosure under §§1-210(a) and 1-212(a), G.S.  Consequently, it is concluded that the respondents did not violate the FOI Act, as alleged in the complaint. 
  
     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
     1. The complaint is hereby dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of May 14, 2014.
__________________________
Cynthia A. Cannata
Acting Clerk of the Commission

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.
THE PARTIES TO THIS CONTESTED CASE ARE:
Aaron Romano
45 Wintonbury Avenue #107
Bloomfield, CT  06002
Commissioner, State of Connecticut, Department of Consumer Protection;
and State of Connecticut, Department of Consumer Protection
c/o Michael Skold, Esq.
Assistant Attorney General
State of Connecticut,
Office of the Attorney General
55 Elm Street
Hartford, CT  06141
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2013-360/FD/cac/5/21/2014