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Court Decisions 2013

See superior court and commission decisions posted under "2011 Commission and Court Decisions."


See superior court and commission decisions posted under "2010 Commission and Court Decisions."



Docket #FIC 2012-001

The court granted the defendants’ motion to dismiss on the ground that the plaintiff failed to file his appeal within forty-five days after the FOIC denied his petition for reconsideration of the final decision, as required by Conn. Gen. Stat. §4-183(c)(2).  The court rejected the assertion that the statutory appeal period commences from the date of the mailing by the agency of notice of the denial.  The plaintiff moved to reargue, and a hearing on that motion has been scheduled for October, 2013 

Ron Robillard requested, and was denied, copies of psychiatric and medical records concerning the confinement of Amy Archer Gilligan from 1924 to 1962 at what is now Connecticut Valley Hospital, following her conviction for second degree murder for the arsenic poisoning of a resident of her nursing home. 
At the contested case hearing, DMHAS contended that all of the requested records were exempt from disclosure pursuant to §52-146e (psychiatrist-patient privilege), as psychiatric records because they originated at a psychiatric facility.  In the alternative, DMHAS contended that the records were exempt from disclosure pursuant to §1-210(b)(2), G.S., (invasion of personal privacy) or Health Insurance Portability and Accountability Act of 1996 (“HIPPA”).  The Commission determined that some of the records were exempt from disclosure pursuant to the psychiatrist-patient privilege, but that the remainder of the records were not exempt pursuant to either §1-210(b)(2), G.S., or HIPAA.  DMHAS appealed.
The superior court determined, with the exception of a provisional diagnosis that had not been ordered redacted from the records, that the Commission had properly construed the psychiatrist-patient privilege.  The court further held that, because the Department of Health and Human Services had amended the definition of “Protected Health Information” under HIPAA, to exclude records for which 50 years following the death of an individual had elapsed, DMHAS’ claim of exemption pursuant to HIPAA was moot.  Finally, with respect to claim of exemption pursuant to §1-210(b)(2), G.S., the court stated that it agreed in general with the standards employed by the Commission in the final decision and with the fact that the Commission had “disallowed the [invasion of privacy] exemption.”  Nonetheless, the court determined that DMHAS had met its burden to show that records generated by Gilligan’s physical and dental examinations from 1924 to a time just prior to her death were not a legitimate matter of public concern and would be highly offensive if disclosed.
On May 8, 2013, the Commission voted to appeal the superior court’s decision with regard to the analysis of §1-210(b)(2), G.S.

Pictometry v. FOIC, HHB-CV-08-4019021S; Department of Environmental Protection v. FOIC; HHB-CV-08-4019025S; Department of Public Works v. FOIC, HHB-CV-08-4019024S (June 23, 2010), N.B. Superior Court, Tanzer, J.
The Connecticut Supreme Court ruled the federal copyright law operates through §1-210(a), G.S., to prohibit an agency from providing a copy of a public record maintained by the agency that is also a copyrighted work, unless the author consents to the record’s reproduction.  (The federal copyright law does not affect the FOIA’s right to inspect records.) The Court also ruled that a licensing contract that permits reproduction of copies for a contracted fee trumps the FOIA fee structure for copies of records.  In this case, the private party that held the copyright on the licensed records maintained by DEP contracted with the state that copies of its licensed records could be provided to the public for $20 per image.  The Court validated that fee provision.