CONNECTICUT DEPARTMENT OF PUBLIC HEALTH v. FREEDOM OF INFORMATION COMMISSION et al., SC 19046

Judicial District of New Britain

 Freedom of Information; Whether FOIA Requires Disclosure of National Practitioner Data Bank and Healthcare Integrity and Protection Data Bank Records.  The Greenwich Time (Time) requested documents from the plaintiff concerning an investigation of a physician.  The plaintiff refused to disclose records from the National Practitioner Data Bank (NPDB) and the Healthcare Integrity and Protection Data Bank (HIPDB).  The NPDB is a federal database of information concerning misconduct of health care professionals; the HIPDB is a database of adverse actions taken against health care practitioners, providers and suppliers.  The Time appealed to the defendant commission, which found that, while the NPDB records were not exempt from disclosure under the Freedom of Information Act, the HIPDB records were.  In reaching its decision, the defendant noted that the federal regulation governing information from the NPDB, 45 C.F.R. § 60.15 (a), does not mandate that records received from the NPDB be confidential but does mandate that records provided to the NPDB be confidential.  It then found that the NPDB records at issue were records received from the NPDB.  With regard to the HIPDB records, the defendant observed that federal regulation 45 C.F.R. § 61.14 (a) provides that persons receiving information from the HIPDB are to use that information solely with respect to the purpose for which it was provided.  It then found that the HIPDB records were received from the HIPDB by the plaintiff for investigatory purposes and that their use was limited to that purpose.  The plaintiff and the Time appealed to the trial court, which affirmed the defendant’s rulings and dismissed the appeals.  It found that the NPDB records were deemed subject to disclosure in Director of Health Affairs Policy Planning v. Freedom of Information Commission, 293 Conn. 164 (2009).  It also determined that 45 C.F.R. § 61.14 (a) clearly excludes private parties from access to HIPDB records.  The plaintiff and the Time have both appealed from the trial court’s judgment.  In its appeal, the plaintiff argues that the NPDB records are exempt from disclosure under federal law.  It seeks to have the Supreme Court reverse its ruling in Director of Health Affairs in light of (1) the recent holding in Commissioner of Correction v. Freedom of Information, 307 Conn. 53 (2012), and (2) the United States Department of Health and Human Services’ interpretation of its own regulation, which it claims was not before the court when Director of Health Affairs was decided.  The Time argues that the HIPDB records are disclosable and that because the HIPDB federal regulation at issue is materially identical to the NPDB regulation, it should be construed in a manner consistent with the NPDB regulation.