Attorney General: Joxel Garcia, M.D., Commissioner, Department of Public Health, 2000-031 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

November 28, 2000

Joxel Garcia, M.D., Commissioner
Department of Public Health
410 Capitol Avenue
MS#13COM
P.O. Box 340308
Hartford, CT 06134-0308

Dear Commissioner Garcia:

This is in response to your request for a formal opinion of the Attorney General regarding the ability of the Department of Public Health ("Department") to access information contained in the personnel files of employees of institutions licensed by the Department. The Department's inspectors have recently been refused access to institutional employee personnel files when conducting inspections at a hospital. The hospital asserted that unless the Department issued an "administrative summons", the records could not be released unless consent of the employee was obtained. You also asked whether such information would be subject to release by the Department pursuant to a Freedom of Information request.

Factual and Statutory Background

The Department licenses "institutions" defined in Connecticut General Statutes § 19a-490(a) to encompass:

.... a hospital, residential care home, health care facility for the handicapped, nursing home, rest home, home health care agency, homemaker-home health aide agency, mental health facility, substance abuse treatment facility, an infirmary operated by an educational institution for the care of students enrolled in, and faculty and employees of, such institution; a facility engaged in providing services for the prevention, diagnosis, treatment or care of human health conditions, including facilities operated and maintained by any state agency, except facilities for the care or treatment of mentally ill persons or persons with substance abuse problems; and a residential facility for the mentally retarded licensed pursuant to section 17a-227 and certified to participate in the Title XIX Medicaid program as an intermediate care facility for the mentally retarded[.]

Connecticut General Statutes § 19a-498(a) authorizes the Department to conduct biennial licensure inspections and "such other inspections and investigations of institutions and examination of their records as it deems necessary."1 Emphasis added. Section 19a-498(b) gives the Commissioner "the power to inspect the premises of an institution, administer oaths and take testimony under oath relative to the matter of inquiry or investigation." At a hearing, the Commissioner may subpoena records and testimony.

Against this broad grant of authority to the Department to perform whatever investigation and inspection it deems necessary to enforce the licensure statutes relevant to institutions, Connecticut General Statutes § 31-128f provides, in pertinent part that:

No individually identifiable information contained in the personnel file or medical records of any employee shall be disclosed by an employer to any person or entity not employed by or affiliated with the employer without the written authorization of such employee except where the information is limited to the verification of dates of employment and the employee's title or position and wage or salary or where the disclosure is made: . . . . (2) pursuant to a lawfully issued administrative summons or judicial order, including a search warrant or subpoena, or in response to a government audit or the investigation or defense of personnel-related complaints against the employer; . . . . (5) to comply with federal, state or local laws or regulations; . . . . Where such authorization involves medical records the employer shall inform the concerned employee of his or his physician's right of inspection and correction, his right to withhold authorization, and the effect of any withholding of such authorization upon such employee.

The Department interprets its authorization to obtain employee records pursuant to an inspection or investigation of a facility as exempt from the prohibition on release of employee records absent consent under either Connecticut General Statutes § 31-128f(2)(in response to a government audit) or Connecticut General Statutes § 31-128f(5)(to comply with federal, state or local laws or regulations). The facility’s position is that, absent consent, the Department is required, pursuant to Connecticut General Statutes § 31-128f(2), to issue an administrative summons to obtain the employee records. For the reasons discussed below, it is the opinion of the Attorney General that the Department is entitled to obtain employee records without consent and without an administrative summons when it is conducting an inspection or investigation of a facility. The personnel records may be subject to release under the Freedom of Information Act after six months or earlier if the investigation is concluded or a hearing is commenced, if the information in the records is of legitimate public concern. Such a determination would have to be made on a case by case basis.

Analysis
  1. The Department's Construction Of Its Authority To Conduct Institutional Investigations As Encompassing Institutional Employee Personnel Records Without Employee Consent And Without An Administrative Summons Is Reasonable

The fundamental objective in statutory interpretation "is to ascertain and give effect to the apparent intent of the legislature.... In seeking to discern that intent, we look to the words of the statute itself, to the 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." (Citations omitted; internal quotation marks omitted). Edelstein v. Department of Public Health, 240 Conn. 658, 664, 692 A.2d 803 (1997).

Starting with the language of Connecticut General Statutes § 19a-498, the Department is given broad authority to conduct "inspections and investigations of institutions and examination of their records as it deems necessary." The Department has determined that it is, on occasion, necessary to look at the personnel records of institutional employees in order to determine whether the institution or an individual practitioner may have violated federal or state law. For example, if an employee who abuses a patient has a history of suspected abuse which was not appropriately addressed by the institution, the Department would find this information relevant to its determination of wrongdoing by the institution. A reasonable reading of the plain language of the statute is that the Department can look at any records, including personnel records, if it deems them to be necessary for its investigation.

The legislative history of the exemptions under Connecticut General Statutes § 31-128f is not helpful on this issue. As originally enacted in 1979, the only exemption from disclosure absent consent was "pursuant to a lawfully issued subpoena." Public Acts 1979, 79-264, S. 6, 9. According to its sponsor, Representative Balducci, the bill codified an employee’s "right to see their own files dealing with their personnel and medical records." 22 H.R. Proc., Pt. 15, 1979 Sess., pp. 5062-63, Although passed in May of 1979, the bill was not scheduled to go into effect until January 1, 1981 to give businesses an opportunity to address any organizational and logistical problems created by the bill regarding the location of personnel records, in order to give employees reasonable access to them.

In March of 1980, the bill was amended to expand the circumstances under which disclosure without the employee’s consent is allowed where previously disclosure was limited to cases "pursuant to a lawfully issued subpoena." The effective date of the bill was changed from January of 1981 to July 1, 1980. The only reference to the expansion of the exemptions came from a Mr. Anderson, Assistant Counsel for the Connecticut Business and Industry Association, who commented during committee hearings that the amendment

simply changes the bill so it conforms with currently existing federal and state law and permits the release of certain information that’s required for the operation of our state and federal government.

Conn. Joint Standing Committee Hearings, Labor and Public Employees, 1980 Sess, p. 31.

Nothing else in the legislative history expands upon what the legislature considered to be "information required for the operation of state and federal government." It should be noted, however, that the Department has promulgated regulations for several categories of institutions which explicitly require personnel records to be turned over to the Department during an inspection or investigation conducted pursuant to Conn. Gen. Stat. § 19a-498,2, and these regulations were approved by the Legislative Regulation Review Committee. It may be assumed that if the Legislature approved these regulations, they did not consider them to be ultra vires. Dugas v. Lumbermens Mutual Casualty Co., 217 Conn. 631, 641, 587 A.2d 415 (1991) (approval by the standing legislative regulation review committee, while not dispositive of regulation’s validity, is an "important consideration"). If the legislature has already approved regulations based on Conn. Gen. Stat. § 19a-498 which allow access to personnel records without consent, it would be inconsistent to conclude that the statute itself does not support this interpretation.

In interpreting statutes, it is presumed that the legislature has created a consistent body of law and relevant statutes are to be interpreted together. Bittle v. Commissioner of Social Services, 249 Conn. 503, 507, 734 A.2d 551, 554 (1999). "When two statutes relate to the same subject matter every effort should be made to find a reasonable field for the operation of both statutes ... [and] where there is a reasonable field of operation for each statute which does not impinge on the domain of the other, it is the court’s duty to give them concurrent effect." (Internal quotation marks omitted.) Gallant v. Cavallaro, 50 Conn. App. 132, 135, 717 A.2d 283 (1998), cert. denied, 247 Conn. 936 (1998), cert. denied, 120 S.Ct. 500.

Connecticut General Statutes § 19a-498 broadly authorizes investigators to conduct investigations of health care institutional records. Connecticut General Statutes § 31-128f generally prohibits the release of personnel records, including those of health care institution employees, without consent, although no consent is required when the information is requested as part of a government audit3 (§ 31-128f(2)) or to comply with federal, state or local laws or regulations (§ 31-128f(5)). If Connecticut General Statutes § 19a-498 is read to authorize access to such records without consent, the two provisions can be read together harmoniously. If, however, the Department’s investigation of an institution, including a review of personnel records, were construed not to fall within either of the exceptions in Connecticut General Statutes § 31-128f, then the Department’s ability to access the records it deems necessary for its investigation would be thwarted.

Finally, it is axiomatic that "[t]he state may ‘regulate the relative rights and duties of all within its jurisdiction so as to guard the public morals, the public safety, and the public health, as well as to promote ... the common good.’" State v. Vachon, 140 Conn. 478, 481, 101 A.2d 509, 512, quoting House v. Mayes, 219 U.S. 270, 282, 31 S.Ct. 234, 55 L.Ed. 213. Statutes directed at preserving and protecting the public health are to be construed liberally to effectuate their purpose. State v. Vachon, 140 Conn. 478, 482, 101 A.2d 509 (1953). Requiring Department investigators to obtain an administrative summons4 when they are in the middle of an inspection would frustrate the efficient administration of vital functions of the Department, aimed at protecting the health and well-being of possibly the most vulnerable members of the public, i.e. those residing in, or served by, health care institutions.

On the basis of this analysis, the Department’s construction of the statutes it is charged with enforcing is reasonable. Griffin Hospital v. Commission on Hospitals and Health Care, 200 Conn. 489, 496 (1986).

  1. Institutional Employee Personnel Records Obtained By The Department May Under Certain Circumstances Be Released Pursuant To A Freedom Of InformationRequest

The second issue raised in your request for formal advice is whether personnel records obtained by the Department in the course of an investigation are subject to release under the Freedom of Information Act (FOIA). The answer to this question must be determined on a case by case basis.

Conn. Gen. Stat. § 19a-499(b) states that:

Notwithstanding the provisions of subsection (a) of this section, all records obtained by the commissioner in connection with any such investigation shall not be subject to the provisions of section 1-210 for a period of six months from the date of the petition or other event initiating such investigation, or until such time as the investigation is terminated pursuant to a withdrawal or other informal disposition or until a hearing is convened pursuant to chapter 54, whichever is earlier. A complaint, as defined in subdivision (6) of section 19a-13, shall be subject to the provisions of section 1-210 from the time that it is served or mailed to the respondent. Records which are otherwise public records shall not be deemed confidential merely because they have been obtained in connection with an investigation under this chapter.

The personnel records do not, therefore, have to be released in response to a request under the FOIA for six months after they are obtained5 by the Department unless the investigation is concluded or a hearing is commenced.

Under the Freedom of Information Act, "all records maintained or kept on file by any public agency ... shall be public records...." Connecticut General Statutes § 1-210(a). Pursuant to Connecticut General Statutes § 1-210(b)(2), disclosure is not required of personnel or medical files if such disclosure would constitute an invasion of personal privacy. "‘The general rule under the Freedom of Information Act is disclosure with the exceptions to this rule being narrowly construed. The burden of establishing the applicability of an exemption clearly rests upon the party claiming the exemption.’" (citations omitted) Perkins v. Freedom of Information Commission, 228 Conn. 158, 167, 635 A.2d 783 (1993). When the claim for exemption involves § 1-210(b)(2) (formerly § 1-19(b)(2)), "‘the plaintiffs must meet a twofold burden of proof.... First, they must establish that the files in question are within the categories of files protected by the exemption, that is, personnel, medical or ‘similar’ files. Second, they must show that disclosure of the records ‘would constitute an invasion of personal privacy.’" (citations omitted). Perkins, 228 Conn. 158 at 168.

The court in Perkins held that the invasion of personal privacy exception of § 1-210(b)(2) only precludes disclosure when the request does not pertain to legitimate matters of public concern and is highly offensive to a reasonable person. Id. at 175. This standard has been construed to mean that as long as the information in the personnel record is of legitimate public concern, the information is obtainable. Department of Children and Families v. FOIC, 48 Conn. App. 467, 472, 710 A.2d 1378 (Conn. App. 1998) cert. denied, 245 Conn. 911 (1998). This case involved the issue of whether the disclosure of the names of Department of Children and Families Employees previously disciplined for failure to protect a child was a matter of public concern. Once this first prong of the analysis has been satisfied, even if the material contained in the records is highly offensive to a reasonable person, disclosure is required. Department of Children and Families v. FOIC, 48 Conn. App. at 472.

The FOIA covers all records "maintained or kept on file by any public agency", therefore, the Perkins standard is applicable to all personnel records in the Department's files. As the Perkins case involved a public employee's records, rather than the private employees involved in most institutional employment, a reviewing court may apply the Perkins standard differently to private personnel records that have been obtained by the Department during an investigation. Perkins stated that a public employee is "a servant of and accountable to the public" and enjoys a diminished expectation of privacy compared to a private employee. Id. at 177. The Freedom of Information Commission has found that "private employees, who are neither paid with governmental funds nor perform governmental functions, have a reasonable expectation of privacy ...." in records ordinarily contained in an employee's personnel file. In the Matter of a Complaint by Andrea B. Buermeyer against State of Connecticut Department of Labor, Docket #FIC 92-132, ¶ 32; see also, In the Matter of a Complaint by Richard H. Kosinski against Office of the Attorney General, Docket #FIC 90-506, ¶15 (applicant providing exceedingly personal documents to a scholarship committee had a reasonable expectation that the documents would be protected). A court may well find that what is a matter of concern to the public varies according to the public/private status of the employee.

The determination that the records contain information that is of legitimate public concern would need to be made on a case by case, document by document basis.

The Department should also be aware that the FOIA requires notice to an employee and the employee's collective bargaining representative, if any, by an agency when it receives a request for the personnel or medical or other similar files of one of its employees and the agency believes release of the file would constitute an invasion of personal privacy. Conn. Gen. Stat. § 1-214(b). The employee is given a short period of time to object to the disclosure, prior to release. Conn. Gen. Stat. § 1-214(c) Although the records at issue in this case are not records of a Departmental employee, we think, in light of the greater protection afforded private employee personnel records by the FOIC and the courts, the Department should give notice to an institutional employee whose personnel records are contained in an investigation file when a Freedom of Information request is received.

CONCLUSION

It is reasonable to construe the authority given to the Department in Connecticut General Statutes § 19a-498 to conduct such examination of an institution’s records as the Department deems necessary when inspecting and investigating an institution as falling within the exception in Connecticut General Statute § 31-128(f)(5) that employee consent is not required when release of an employee’s personnel records is made to comply with state and federal law. An employee’s personnel records obtained by the Department would only be released pursuant to an FOIA request if the information therein was of legitimate public concern, a determination that must be made on a case by case basis.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Marianne I. Horn
Assistant Attorney General

RB/MIH/mu


1Federal law also requires providers to allow examination by the Health Care Financing Agency (HCFA) (or on behalf of HCFA) of the facility’s "fiscal or other records ....as necessary for verification of information furnished as a basis for payment under Medicare." 42 C.F.R. § 489.53.

2For example, Regs. of Conn. State Agencies § 19-13-D4b(t) states that the failure of a hospice to allow the Department to review and copy all records on demand, “including personnel and payroll records” will result in the “denial of, revocation of, or a determination not to renew the license”; see also, Regs. of Conn. State Agencies § 19-13-D105(f)(3) requiring an assisted living services agency to ensure that the personnel records of all persons "utilized via contract with another assisted living agency, a home health care agency, homemaker-home health aide agency or nursing pool, are available to the department upon its request"; and Regs. of Conn. State Agencies § 19a-115-5 requiring departmental access on demand to records, including personnel reports at Medical Test Units. Several other regulations require facilities to maintain detailed individual personnel records. See e.g. Regs. of Conn. State Agencies §19a-495-571(f)(2) (recovery care center); § 19-13-D105(f)(2) (assisted living services agency). These regulations also imply that the Department must be able to access these records to determine compliance with the regulations' requirements that such records are being maintained.

3Pursuant to 42 C.F.R. § 488.11, the Department has an agreement with HCFA to conduct complaint investigations for the federal government and to carry out validation surveys of facilities accredited by the Joint Commission on Hospitals and Health Care (JCAHO).

HCFA is authorized to terminate an agreement with any provider if:

It refuses to permit examination of its fiscal or other records by, or on behalf of HCFA, as necessary for verification of information furnished as a basis for payment under Medicare. 42 C.F.R. § 488.53(a)(2).

4It is not clear what the legislature meant by an "administrative summons." This phrase does not appear anywhere else in the Connecticut General Statutes or anywhere in the Regulations of Connecticut State Agencies. A summons is defined in Black’s Law Dictionary 748 (5th Ed. 1979) as:

Instrument used to commence a civil action or proceeding and is a means of acquiring jurisdiction over a party.

The term "process" is now commonly understood to refer to a summons. Id. at p. 630. Administrative process is defined as:

In general, the procedure used before administrative agencies; in particular, the means of summoning witnesses before such agencies, e.g. subpoena.

Id. at p. 23.

It may be reasonable, therefore, to construe "administrative summons" as equivalent to an administrative subpoena. There is, however, no requirement for the Commissioner to issue a subpoena to obtain records during an investigation or inquiry on the premises. Conn. Gen. Stat. § 19a-498(b).

5Only records "obtained" by the Department are subject to the FOIA. The Department should, therefore, copy only those personnel records it deems essential to its investigation.


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