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Final Decision FIC2014-547
In the Matter of a Complaint by
FINAL DECISION
Lara Shepard-Blue and Our
Families Can't Wait,
     Complainants
     against
Docket #FIC 2014-547
Commissioner, State of Connecticut,
Department of Developmental Services;
and State of Connecticut, Department
of Developmental Services,
     Respondents
June 10, 2015

     The above-captioned matter was heard as a contested case on March 20, 2015 at which time the complainants 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 email sent July 15, 2014, the complainants made a request to the respondents for “a list of all guardians (including parents) of individuals who are in receipt of services from [Department of Developmental Services] including the guardians’ names, addresses, phone numbers and email addresses.”
     3.  It is found that, by email sent on July 16, 2014, the respondents responded to the complainants’ request informing them in substance that the request had been reviewed and that a further response would be forthcoming.
     4.  It is found that by letter dated July 24, 2014, the respondents provided the complainants with the names of the guardians.  It is found, however, that the respondents denied the complainants’ request for addresses, phone numbers and emails claiming that the disclosure of that information would violate the Health Insurance Portability and Accountability Act (“hereinafter “HIPPA”).
     5.  By email sent, and received on August 18, 2014, the complainants appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to fully comply with their records request. 
     6.  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.
     7.  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.
     8.  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.”
     9.  It is found that the requested records are public records within the meaning of §§1-200(5), 1-210(a), and 1-212, G.S.
     10. At the hearing on this matter and in a pre-hearing brief, the respondents contended that the records, and more specifically, the requested information within the records, are:
a. confidential pursuant to §45a-670, G.S.;
b. exempt from disclosure pursuant to HIPPA; and
c. exempt from disclosure pursuant to §1-210(b)(2), G.S.
     11. The complainants argued the following:
a. that §45a-670, G.S., is intended to protect the person subject to the guardianship and not the guardian and that the statute allows public access to the guardian’s identity, which also includes the contact information and therefore it should have been provided; 
b. that the complainants have asked for non-medical information provided in a non-medical capacity and therefore HIPPA is not applicable;
c. that because the guardian’s name is already publicly known, there should be no reasonable expectation that his/her contact information would be confidential and therefore there could be no invasion of privacy if the information was disclosed; and
d. that the respondents failed to meet the test set forth in Perkins1  for the exemption found at §1-210(b)(2), G.S. 

1
Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993)
     12. With respect to the respondents’ argument that the addresses, telephone numbers, and emails at issue are confidential pursuant to §45a-670, G.S., that statute provides in relevant part that:
(a) An application for guardianship may be filed by the court on its own motion or by any adult person. The application and all records of Probate Court proceedings held as a result of the filing of such application, except for the name of any guardian of the respondent, shall be sealed and shall be made available only to the respondent or the respondent's counsel or guardian, and to the Commissioner of Developmental Services or the commissioner's designee, unless the Probate Court, after hearing held with notice to the respondent or the respondent's counsel or guardian, and to the commissioner or the commissioner's designee, determines that such application and records should be disclosed for cause shown….
     13. It is found that the information requested by the complainant is contained within sealed records of Probate Court proceedings, which proceedings were held as a result of the filing of an application for guardianship and that those records were made available to the respondents pursuant to §45a-670, G.S.  Further, it is found that there is no evidence in the record of this case that the Probate Court determined that the records should be disclosed.
     14. It is found that §45a-670, G.S., explicitly precludes public access to all records of Probate Court proceedings held as a result of the filing of an application for guardianship and specifically limits public disclosure of any information contained in those records to the name of the guardian. 
     15. It is found, contrary to the complainants’ contention, that the “names” of the guardians are not synonymous with their personally identifiable information, which would include their names but also their addresses, phone numbers and email address. 
     16. It is concluded therefore that the requested information is confidential and exempt from disclosure pursuant to §45a-670, G.S.
     17. Because the requested records are exempt pursuant to §45a-670, G.S., there is no need to consider the application of §1-210(b)(2), G.S., or HIPPA.
     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 June 10, 2015.

__________________________
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:
Lara Shepard-Blue and Our Families Can’t Wait
c/o Kevin A. Creane, Esq.
Law form of John M. Creane
92 Cherry Street
Milford, CT  06460
Commissioner, State of Connecticut, Department of
Developmental Services; and State of Connecticut,
Department of Developmental Services
c/o Jacqueline S. Hoell, Esq.
Assistant Attorney General
State of Connecticut,
Office of the Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT  06141-0120

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2014-547/FD/cac/6/10/2015