DIRECTOR, STATE OF CONNECTICUT UNIVERSITY OF CONNECTICUT HEALTH CENTER, OFFICE OF HEALTH AFFAIRS POLICY PLANNING v. FREEDOM OF INFORMATION COMMISSION, SC 18286

Judicial District of New Britain

 Freedom of Information Act; Whether Records Pertaining to the Evaluation of a Physician's Performance Are Confidential under General Statutes § 19a-17b (d); Whether Court Considered the Public Interest in the Disclosure of Records; Whether Records Obtained From National Practitioner Data Bank Exempt From Disclosure.  Louis Russo requested that the John Dempsey Hospital of the University of Connecticut Health Center release all information regarding the suspension of Jacob Zamstein, M.D.  Zamstein objected to the request, and the plaintiff declined to disclose the information.  Russo then filed a complaint with the Freedom of Information Commission (FOIC), indicating that he had a malpractice suit against Zamstein and that it was critical for him to obtain the records.  The FOIC ordered that the records be released.  In so ruling, it rejected the plaintiff's argument that the records were exempt from disclosure under General Statutes § 19a-17b, which, in relevant part, states that the "proceedings of a medical review committee conducting a peer review shall not be subject to discovery or introduction into evidence in any civil action for or against a health care provider arising out of matters which are subject to evaluation and review by such committee."  The FOIC found that § 19a-17b does not provide for an exemption from the mandatory disclosure requirements of the Freedom of Information Act because it applies only to "civil actions," not FOIC proceedings.  It also rejected the plaintiff's claim that the documents pertained to information from the National Practitioner Data Bank (data bank) and were exempt from disclosure pursuant to § 60-13 (a) of title 45 of the Code of Federal Regulations.  This section provides that "persons and entities which receive information from the Data Bank . . . must use it solely with respect to the purpose for which it was provided.  Nothing in this paragraph shall prevent the disclosure of information by a party which is authorized under applicable State law to make such disclosure."  The FOIC stated that § 60-13 (a) unambiguously provides for state law to authorize a party, such as the plaintiff, to disclose information reported to the data bank.  On appeal, the trial court reversed the FOIC's ruling.  Noting that Russo was not seeking the release of general public information but rather peer review materials relating to Zamstein's performance as a physician, it found that the requested documents were privileged under our case law.  It also concluded that the documents were protected by the peer review privilege of § 19a-17b because there was no meaningful distinction between the FOIC hearing and an action in court and that the FOIC's narrow definition of "civil action" thwarted the purpose of the peer review statutory scheme.  In addition, it concluded that the public interest in withholding the documents clearly outweighed the public interest in disclosure.  With regard to the data bank information, it determined that that information had been provided to the hospital solely for peer review proceedings.  Since Russo had not been a part of those proceedings, the court ruled that, under the Code of Federal Regulations, its disclosure to him would be a "use" of the information by the hospital that was not for "the purpose for which it was provided."  Finally, it determined that the FOIC's decision failed to acknowledge § 60-11 (a) (5) of title 45 of the Federal Code of Regulations, which specifies who may request information from the data bank, and determined that there was no evidence that Russo could have obtained the information.  In this appeal, the Supreme Court will review the trial court's rulings.