******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************
FREEDOM OF INFORMATION OFFICER,

DEPARTMENT OF MENTAL HEALTH

AND ADDICTION SERVICES,

ET AL. v. FREEDOM

OF INFORMATION

COMMISSION

ET AL.

(SC 19371)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.

Argued January 14—officially released September 22, 2015
Valicia Dee Harmon, commission counsel, with

whom, on the brief, was Colleen M. Murphy, executive

director and general counsel, for the appellant-appellee

(named defendant).

Jacqueline Hoell, assistant attorney general, with

whom were Henry A. Salton, assistant attorney general,

and, on the brief, George Jepsen, attorney general, for

the appellees-appellants (plaintiffs).
Opinion

EVELEIGH, J. The present case arises from the ruling

of the named defendant, the Freedom of Information

Commission (commission), that the defendant Ron

Robillard was entitled to the disclosure of documents

in the possession of the plaintiffs, the Department of

Mental Health and Addiction Services (department) and

its Freedom of Information Officer (information officer), under the Freedom of Information Act (act), General Statutes § 1-200 et seq. The commission appeals

from the judgment of the trial court, claiming, inter alia,

that the plaintiffs lacked standing to appeal to the trial

court from the commission’s decision. The plaintiffs

cross appealed from the judgment of the trial court,

claiming, inter alia, that the trial court improperly

rejected the plaintiffs’ claim that the documents were

medical records related to the diagnosis and treatment

of a patient and were, thus, psychiatric records exempt

from disclosure pursuant to General Statutes § 52-146e.

We conclude that the plaintiffs had standing to appeal

the decision of the commission, and further agree with

the plaintiffs that the documents at issue are exempt

from disclosure under § 52-146e. Accordingly, we

reverse the judgment of the trial court and remand

the case to that court with direction to sustain the

plaintiffs’ appeal.

The following facts and procedural history are relevant to the present appeal. The plaintiffs received a

request under the act from Robillard for any records

concerning a person named Amy Archer Gilligan for

the period of time from 1924 through 1962. Gilligan was

a patient at a facility now known as Connecticut Valley

Hospital (hospital) following her conviction for second

degree murder for the arsenic poisoning of a resident

of her nursing home. Gilligan’s life is widely considered

to be the basis for the play and movie entitled ‘‘Arsenic

and Old Lace.’’ The plaintiffs provided Robillard with

copies of those records pertaining to Gilligan that it

deemed were disclosable under the act. Robillard was

notified by the plaintiffs that other records, deemed

exempt from disclosure under the act, were withheld.

Robillard then filed a complaint with the commission

alleging that the plaintiffs violated the act by failing to

provide these records concerning the confinement of

Gilligan. After a full hearing and an in camera inspection

of the records before a hearing officer of the commission, the commission adopted the proposed findings

and decision of the hearing officer. In its memorandum

of decision, the hearing commission found that some

of the records submitted for in camera review were

exempt from disclosure as psychiatric records under

§ 52-146e. The commission found that two documents

submitted for in camera inspection were exempt from

disclosure under General Statutes § 1-210 (b) (10) as

‘‘communications privileged by the attorney-client rela-
tionship . . . .’’ The commission found that the rest of

the records submitted for in camera review did not

qualify as psychiatric records or attorney client communications, but were ‘‘on their face medical records

. . . .’’ The commission found that the medical records

were not exempt from disclosure under the federal

Health Insurance Portability and Accountability Act

(HIPAA), 42 U.S.C. § 1320d et seq. The commission

further found that the medical records were not exempt

from disclosure under the act because Gilligan is

deceased and, therefore, there can be no invasion of

privacy under § 1-210 (b) (2).

The plaintiffs then filed an administrative appeal pursuant to General Statutes § 4-183 of the Uniform Administrative Procedure Act (UAPA). On appeal to the trial

court, the plaintiffs made the following claims: ‘‘(1)

The [commission] erroneously applied Connecticut’s

psychiatric-patient privilege by allowing disclosure of

certain of the documents requested by Robillard, (2)

the [commission] erroneously applied the § 1-210 (b)

(2) exemption from disclosure under the [act], and (3)

the [commission] erroneously interpreted the department’s claimed exemption under HIPAA.’’ The trial

court found that the commission properly applied § 52-

146e, with the exception of two documents that the

court ordered partially redacted as to diagnosis. The

trial court further found that the commission properly

applied § 1-210 (b) (2), but found that the plaintiffs had

met their burden under § 1-210 (b) (2) as to the physical

and dental examination records contained in the documents, finding that they were not a legitimate matter

of public concern and would be highly offensive if disclosed. Accordingly, the trial court sustained the plaintiffs’ appeal as to those physical and dental examination

records. The commission appealed and the plaintiffs

cross appealed from that judgment to the Appellate

Court, and we transferred those appeals to this court

pursuant to General Statutes § 51-199 (c) and Practice

Book § 65-2.

On appeal to this court, the commission claims that

the plaintiffs lacked standing to appeal to the trial court

from the commission’s decision that Gilligan’s medical

records were not exempt from disclosure. In the cross

appeal, the plaintiffs claim that the trial court improperly concluded that all of the records at issue were not

exempt from disclosure under § 52-146e.1 We conclude

that the plaintiffs had standing to appeal to the trial

court from the commission’s decision and that the trial

court improperly concluded that all of the records at

issue were not exempt from disclosure under § 52-146e.

I

The commission asserts that the plaintiffs lacked

standing to appeal to the trial court from the commission’s decision that Gilligan’s medical records were not

exempt from disclosure.2 Specifically, the commission
asserts that the plaintiffs are not aggrieved because

their personal privacy interest was not affected by its

decision. Further, the commission claims that the plaintiffs lack standing because they cannot assert the privacy interests of their deceased client. In response, the

plaintiffs assert that they had standing to appeal from

the commission’s decision that Gilligan’s medical

records were not exempt from disclosure under § 1-

210 (b) (2) because they were aggrieved by the decision

of the commission. We agree with the plaintiffs.

‘‘As a preliminary matter, we address the appropriate

standard of review. If a party is found to lack

[aggrievement], the court is without subject matter

jurisdiction to determine the cause. . . . A determination regarding a trial court’s subject matter jurisdiction

is a question of law. When . . . the trial court draws

conclusions of law, our review is plenary and we must

decide whether its conclusions are legally and logically

correct and find support in the facts that appear in the

record. . . .

‘‘Subject matterjurisdiction [implicates]the authority

of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it

is without jurisdiction . . . . The objection of want of

jurisdiction may be made at any time . . . [a]nd the

court or tribunal may act on its own motion, and should

do so when the lack of jurisdiction is called to its attention. . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised

at any stage in the proceedings.’’ (Internal quotation

marks omitted.) Fort Trumbull Conservancy, LLC v.

New London, 282 Conn. 791, 802, 925 A.2d 292 (2007).

‘‘Only parties aggrieved by the decision of the [commission] have standing to take appeals to the Superior

Court. General Statutes § 1-21i (d). Standing is not a

technical rule intended to keep aggrieved parties out

of court; nor is it a test of substantive rights. Rather it

is a practical concept designed to ensure that courts

and parties are not vexed by suits brought to vindicate

nonjusticiable interests and that judicial decisions

which may affect the rights of others are forged in

hot controversy, with each view fairly and vigorously

represented. . . . These two objectives are ordinarily

held to have been met when a complainant makes a

colorable claim of [a] direct injury he has suffered or

is likely to suffer, in an individual or representative

capacity. Such a personal stake in the outcome of the

controversy . . . provides the requisite assurance of

concrete adverseness and diligent advocacy.

‘‘As long as there is some direct injury for which the

plaintiff seeks redress, the injury that is alleged need

not be great . . . [and] need not be primarily economic. . . .
‘‘In appeals pursuant to § 1-21i(d), we have translated

these general principles into a twofold test for

aggrievement that requires a showing of: (1) a specific

personal and legal interest in the subject matter of the

[commission] decision; and (2) a special and injurious

effect on this specific interest.’’(Citations omitted; footnote omitted; internal quotation marks omitted.) Board

of Pardons v. Freedom of Information Commission,

210 Conn. 646, 648–49, 556 A.2d 1020 (1989).

Although the commission does not expressly address

why the plaintiffs are not aggrieved, it seems to assert

that because they are merely the holder of the public

records at issue here, they are not affected by any disclosure and are not the appropriate parties to provide

evidence as to why disclosure would constitute an invasion of privacy. In response, the plaintiffs assert that

they are aggrieved by the commission’s decision

because they have a legally protected interest that has

been, and will in the future be, adversely affected by

the commission’s decision. Specifically, the plaintiffs

assert that the department is statutorily charged with

providing comprehensive, client based services in the

areas of mental health and substance abuse treatment

to people in the state, including many people who have

been found not guilty of crimes but are in need of

psychiatric care and others who may be characterized

as notorious. The plaintiffs further assert that the

department’s interest in providing such care is

adversely affected by the commission’s determination

that medical records of patients in their facilities can

be subject to disclosure under the act because it might

adversely affect patients’ willingness to provide information regarding their medical history and status if

such information is subject to disclosure.

In support of their position, the plaintiffs rely on

Board of Pardons v. Freedom of Information Commission, supra, 210 Conn. 646. In Board of Pardons, the

commission had issued a decision finding that theBoard

of Pardons (board) had improperly gone into executive

session to discuss records of prisoners. The board

appealed the decision to the trial court and then to the

Appellate Court. The Appellate Court concluded that

the board did not have standing to appeal from the

decision of the commission because it was not

aggrieved. See id., 648. This courtreversed the judgment

of the Appellate Court, concluding that ‘‘the board has

a legitimate institutional interest in the integrity of its

decision-making process. The board has advanced a

colorable claim of injury to its own deliberative functions that transcends the interests of individual prisoners in the disclosure of their records. In deciding

whether to grant a pardon or to commute a prison

sentence, the board depends not simply on objective

[fact-finding], but also on purely subjective evaluations

and on predictions of future behavior . . . . In order
to carry out this sensitive mission, the board claims

that it needs the opportunity for confidential dialogue

about every aspect of a prisoner’s record. The board

alleges that, as a practical matter, there is a great deal

of overlap between the discussion of the records of

individual prisoners, which the [commission] has

ordered to be held in public, and the discussion of third

party information, which even the [commission] has

permitted to be conducted in executive session. The

bifurcated procedure that the [commission] order mandates therefore gave rise to a colorable claim of injury

to a central aspect of the board’s functions.’’ (Citation

omitted; internal quotation marks omitted.) Id., 650–51.

This court further concluded that the commission’s

decision ‘‘would undoubtedly have . . . a chilling

effect on the [board] the next time it contemplated . . .

an executive session in order to decide whether to

grant a petition for a pardon.’’(Internal quotation marks

omitted.) Id., 651. Similarly, we conclude that the plaintiffs have made a colorable claim that the commission’s

decision in the present case would have a chilling effect

on its statutorily mandated role of providing mental

health and addiction services to patients in the state

of Connecticut.

In Board of Pardons, this court also relied on the

fact that the potential for criminal liability or civil incarceration was sufficient to confer standing. ‘‘Because

the [act] makes noncompliance with [a commission]

order a class B misdemeanor; General Statutes § 1-21k

(b); the individual members of the board have a ‘specific

and personal’ interest in the validity of such an order.

In the future, board members face the risk of injury, in

the form of criminal prosecution and sanctions, if they

fail to comply with the present [commission] order.

Such a risk of prosecution establishes the requisite ‘specific and personal interest’ of the members of the board

and of the board itself as their representative.’’ (Footnote omitted.) Board of Pardons v. Freedom of Information Commission, supra, 210 Conn. 650.3

In the

present case, based on the commission’s ruling, employees of the department may face criminal liability or

civil incarceration in the future if they do not disclose

records. Such potential is sufficient to present a colorable claim of direct injury.

Moreover, the plaintiffs are subject to General Statutes § 52-146j,4 which provides a cause of action for

improper disclosure of psychiatric records. The potential for a civil action and penalties for improper disclosure of such actions is further evidence that the

plaintiffs have a colorable claim of direct injury related

to the commission’s decision.5

Accordingly, we conclude that the plaintiffs had

standing to appeal from the decision of the commission.

II
In their cross appeal, the plaintiffs assert that the

trial court improperly affirmed the decision of the commission finding that some of the records at issue were

not exempt from disclosure under § 52-146e.6 Specifically, the plaintiffs assert that the commission and the

trial court improperly divided the records at issue

between documents that were related to psychiatric

care and those that were medical records. The plaintiffs

assert that such a division was improper because all of

the documents at issue were created during care for a

patient at an inpatient mental health facility, and that

medical diagnosis and treatment are part of psychiatric

treatment and diagnosis at an inpatient mental health

facility. In response, the commission asserts that the

commission and the trial court properly determined

that the medical and dental records are not exempt

from disclosure under § 52-146e because they are not

privileged communications and records as defined by

General Statutes § 52-146d (2).7 We agree with the plaintiffs and, accordingly, reverse the judgment of the trial

court to the extent that it determined that the medical

records were not exempt from disclosure under § 52-

146e.

‘‘This court reviews the trial court’s judgment pursuant to the . . . UAPA . . . . Under the UAPA, it is

[not] the function . . . of this court to retry the case or

to substitute its judgment for that of the administrative

agency. . . . Even for conclusions of law, [t]he court’s

ultimate duty is only to decide whether, in light of the

evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse if its discretion. . . . [Thus]

[c]onclusions of law reached by the administrative

agency must stand if the court determines that they

resulted from a correct application of the law to the

facts found and could reasonably and logically follow

from such facts. . . . [Similarly], this court affords deference to the construction of a statute applied by the

administrative agency empowered by law to carry out

the statute’s purposes. . . . Cases that present pure

questions of law, however, invoke a broader standard

of review than is . . . involved in deciding whether, in

light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.

. . . Furthermore, when a state agency’s determination

of a question of law has not previously been subject to

judicial scrutiny . . . the agency is not entitled to special deference. . . . We have determined, therefore,

that the traditional deference accorded to an agency’s

interpretation of a statutory term is unwarranted when

the construction of a statute . . . has not previously

been subjected to judicial scrutiny [or to] . . . a governmental agency’s time-tested interpretation . . . .’’

(Citation omitted; internal quotation marks omitted.)

Chairperson, Connecticut Medical Examining Board

v. Freedom of Information Commission, 310 Conn.

276, 281–82, 77 A.3d 121 (2013). Even if time-tested, we
will defer to an agency’s interpretation of a statute only

if it is ‘‘reasonable’’; that reasonableness is determined

by ‘‘[application of] our established rules of statutory

construction.’’ (Internal quotation marks omitted.)

Dept. of Public Safety v. State Board of Labor Relations,

296 Conn. 594, 599, 996 A.2d 729 (2010).

‘‘When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent

of the legislature. . . . In seeking to determine that

meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship

to other statutes. If, after examining such text and considering such relationship, the meaning of such text is

plain and unambiguous and does not yield absurd or

unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test

to determine ambiguity is whether the statute, when

read in context, is susceptible to more than one reasonable interpretation. . . . When a statute is not plain and

unambiguous, we also look for interpretive guidance 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 . . . .’’ (Internal quotation marks omitted.) Chairperson, Connecticut Medical Examining

Board v. Freedom of Information Commission, supra,

310 Conn. 283. The issue of statutory interpretation

presented in this case is a question of law subject to

plenary review. See id., 282–83.

We begin with the text of the statute. Section 52-

146e (a) provides as follows: ‘‘All communications and

records as defined in section 52-146d shall be confidential and shall be subject to the provisions of sections

52-146d to 52-146j, inclusive. Except as provided in sections 52-146f to 52-146i, inclusive, no person may disclose or transmit any communications and records or

the substance or any part or any resume thereof which

identify a patient to any person, corporation or governmental agency without the consent of the patient or his

authorized representative.’’ The plain language of § 52-

146e exempts all such ‘‘communications and records’’

from disclosure.

Therefore, we must consider whether medical and

dental records are ‘‘communications and records’’ for

the purposes of § 52-146e. Section 52-146d (2) defines

‘‘ ‘[c]ommunications and records’ ’’ as ‘‘all oral and written communications and records thereof relating to

diagnosis or treatment of a patient’s mental condition

between the patient and a psychiatrist, or between a

member of the patient’s family and a psychiatrist, or

between any of such persons and a person participating

under the supervision of a psychiatrist in the accomplishment of the objectives of diagnosis and treatment,

wherever made, including communications and records
which occur in or are prepared at a mental health facility . . . .’’

In the present case, the crux of the disagreement

between the commission and the plaintiffs is whether

medical and dental records contained within Gilligan’s

file are exempt from disclosure under § 52-146e. The

commission asserts, and the trial court agreed, that

these documents were not exempt from disclosure

because they were not ‘‘oral and written communications and records thereof relating to diagnosis or treatment of a patient’s mental condition between the patient

and a psychiatrist, or between a member of the patient’s

family and a psychiatrist . . . .’’ General Statutes § 52-

146d (2). We agree that the medical and dental records

are not communications directly between Gilligan and

a psychiatrist or between a member of Gilligan’s family

and a psychiatrist.

Nevertheless, the definition of ‘‘ ‘[c]ommunications

and records’ ’’ in § 52-146d (2) does not stop there. Section 52-146d (2) further defines ‘‘ ‘[c]ommunications

and records’ ’’ to include ‘‘all oral and written communications and records thereof relating to diagnosis or

treatment of a patient’s mental condition . . . between

any of such persons and a person participating under

the supervision of a psychiatrist in the accomplishment

of the objectives of diagnosis and treatment, wherever

made, including communications and records which

occur in or are prepared at a mental health facility

. . . .’’

In interpreting this statute, we do not write on a clean

slate. ‘‘As we have previously observed, [t]he people of

this state enjoy a broad privilege in the confidentiality

of their psychiatric communications and records . . .

and the principal purpose of that privilege is to give

the patient an incentive to make full disclosure to a

physician in order to obtain effective treatment free

from the embarrassment and invasion of privacy which

could result from a doctor’s testimony. . . . Accordingly, the exceptions to the general rule of nondisclosure of communications between psychiatrist and

patient were drafted narrowly to ensure that the confidentiality of such communications would be protected

unless important countervailing considerations

required their disclosure. . . .

‘‘Although we are cognizant that [c]ommunications

that bear no relationship to the purpose for which the

privilege was enacted do not obtain shelter under the

statute and are admissible subject to the normal rules

of evidence . . . we are equally convinced that the protection of communications that identify a patient are

central to the purpose of the statute. The language of

the statute supports this conclusion. Section 52-146e

(a) specifically prohibits the disclosure or transmission

of any communications or records that would identify

a patient . . . . Section 52-146d provides that the
phrase identify a patient refer[s] to communications

and records which contain (A) names or other descriptive data from which a person acquainted with the

patient might reasonably recognize the patient as the

person referred to, or (B) codes or numbers which are

in general use outside ofthe mental health facility which

prepared the communications and records . . . . Further, the fact that an explicit exception contained in

subdivision (3) of [General Statutes] § 52-146f permits

the disclosure of a patient’s name, address and . . .

[t]hat the person was in fact a patient for purposes of

collection disputes between the hospital and the

patient, lends weight to our conclusion that the general

rule against disclosure applies with equal force to identity as to otherinformation.’’(Citations omitted; internal

quotation marks omitted.) Falco v. Institute of Living,

254 Conn. 321, 328–29, 757 A.2d 571 (2000).

In State v. Jenkins, 73 Conn. App. 150, 162, 807 A.2d

485 (2002), rev’d in part on other grounds, 271 Conn.

165, 856A.2d 383 (2004), the AppellateCourt considered

whether a nursing assessment is a mental health record

as defined in § 52-146d. The Appellate Court recognized

that ‘‘[t]he purpose of the privilege is ‘to protect a therapeutic relationship. The statute provides a privilege for

confidential communications so that a patient may

safely disclose to his therapist personal information

that is necessary for effective treatment or diagnosis.’

Bieluch v. Bieluch, 190 Conn. 813, 819, 462 A.2d 1060

(1983) . . . .’’ (Citation omitted.) State v. Jenkins,

supra, 162.

The Appellate Court concluded that the nursing

assessment is a mental health record as defined in § 52-

146d, relying on the document itself that indicated that

the defendant authorized diagnosis and treatment of a

mental condition and testimony from the director of

the facility that the nursing assessment was conducted

under the supervision of a psychiatrist, and that all

the information, even the biographical data, is used to

‘‘gather information about mental health issues . . . .’’

(Internal quotation marks omitted.) Id.

Similar to the evidence in Jenkins, at the hearing

before the commission, Thomas Pisano, a psychiatrist,

testified that the medical and dental records at issue

were created at the hospital during Gilligan’s inpatient

treatment. Pisano furthertestified that the records were

created under the direction of a psychiatrist. Pisano

also testified that the superintendent of the facility at

the time Gilligan was a patient was a psychiatrist. The

foregoing examination of the plain language of §§ 52-

146d and 52-146e and prior interpretations support the

conclusion that the medical and dental records of Gilligan are exempt from disclosure under § 52-146e.8

The plaintiffs assert that related statutory provisions

also support the conclusion that Gilligan’s medical and

dental records are exempt from disclosure under § 52-
146e. Specifically, the plaintiffs assert that General Statutes § 17a-5459

supports its position. Section 17a-545

requires inpatient mental health facilities to conduct a

physical examination of every patient and to make those

reports part of the patient’s clinical record. We agree

with the plaintiffs that the legislature’s decision to

require physical examinations of all patients at inpatient

mental health facilities supports our conclusion that

such physical examinations and the resulting medical

record are part of the patient’s mental health record and

not subject to disclosure. Furthermore, the legislature’s

decision to require physical examinations of patients

at inpatient mental health facilities also indicates that

the legislature understood that mental health conditions

are often related to physical disorders and that the

proper treatment of mental health involves the treatment of physical issues, as well.

Our construction of §§ 52-146d and 52-146e is also

consistent with the broad language of the psychiatristpatient privilege. As ‘‘[t]his court previously has

explained . . . § 52-146e spreads a veil of secrecy over

communications and records relating to the diagnosis

or treatment of a patient’s mental condition. With certain exceptions not pertinent to the present discussion,

the statute provides that no person may disclose or

transmit any communications and records . . . to any

person, corporation or governmental agency without

the consent of the patient or his authorized representative. [General Statutes § 52-146e (a)]. The broad sweep

of the statute covers not only disclosure to a defendant

or his counsel, but also disclosure to a court even forthe

limited purpose of an in camera examination.’’ (Internal

quotation marks omitted.) State v. Kemah, 289 Conn.

411, 424, 957 A.2d 852 (2008). Accordingly, our understanding of the broad veil of secrecy created by the

psychiatrist-patient privilege also supports our conclusion that medical and dental records that are created

by an inpatient mental health facility during the treatment of a patient are exempt from disclosure under

§ 52-146e.

On the basis of the relevant statutory language,

related statutory provisions and prior interpretations

of the act, we conclude that the trial court improperly

affirmed the commission’s determination that Gilligan’s

medical and dental records were not exempt from disclosure under § 52-146e.

The judgment is reversed and the case is remanded

to the trial court with direction to sustain the plaintiffs’ appeal.

In this opinion ROGERS, C. J., and ZARELLA,

ESPINOSA and ROBINSON, Js., concurred.

1

In its appeal, the commission also asserts that the trial court improperly:

(1) substituted its own judgment for that of the commission when it determined that disclosure of the records related to Gilligan’s physical and dental

examinations would constitute an invasion of privacy under § 1-210 (b) (2);

(2) found that records related to Gilligan’s physical and dental examinations
were exempt from disclosure under § 1-210 (b) (2) when Gilligan was an

infamous arsenic murderess; (3) found that under § 1-210 (b) (2) disclosure

of the records related to Gilligan’s physical and dental examinations would

be highly offensive to a reasonable person when Gilligan has been deceased

since 1962 and is not survived by any relative; (4) found that records related

to Gilligan’s physical and dental examinations were exempt from disclosure

under § 1-210 (b) (2) when Gilligan’s privacy rights terminated upon her

death; (5) found that records related to Gilligan’s physical and dental examinations were exempt from disclosure under § 1-210 (b) (2) as protecting

the privacy rights of Gilligan’s living relatives when Connecticut has yet to

recognize survivor privacy right and, alternatively, even if such rights were

recognized, they would not be applicable here because there is no evidence

that Gilligan is survived by a relative and the records at issue do not involve

gruesome images of her death. The plaintiffs also assert in their cross appeal

that the trial court improperly concluded that some of Gilligan’s medical

records were not exempt from disclosure under § 1-210 (b) (2). Because

we conclude that all of Gilligan’s medicalrecords are exempt from disclosure

under § 52-146e, we need not reach these other claims.

2

It is not entirely clear from the commission’s brief whether it challenges

the plaintiffs’ standing to appeal under both §§ 1-210 (b) (2) and 52-146e.

To the extent that the commission challenges the plaintiffs’ standing under

both statutes and because standing is a jurisdictional question, we address

the commission’s claim as a threshold issue. The concurring and dissenting

opinion asserts that ‘‘I do not understand why the majority has analyzed

the department’s standing in its opinion. . . . Nevertheless, I agree with

the majority’s conclusion that the department has standing to raise this

exemption.’’ See footnote 2 of the concurring and dissenting opinion. The

concurring and dissenting opinion further asserts that ‘‘the commission

concedes that the department has standing to raise’’ the psychiatric records

privilege. Id. We disagree. From our review of the parties’ briefs, we do not

conclude that the commission concedes that the department has standing

in this appeal. Accordingly, out of an abundance of caution, we address the

standing issue.

3

In the present case, it is unclear whether the commission asserts that

the information officer of the department also lacks standing to appeal from

the decision of the commission. As the individual tasked with making sure

that the department complies with the act, the information officer faces risk

of prosecution forfailure to follow an order of the commission. Therefore, to

the extent that the commission asserts that the information officer does

not have standing to appeal from its decision, we conclude that ‘‘[s]uch a

risk of prosecution establishes the requisite specific and personal interest

. . . .’’ (Internal quotation marks omitted.) Board of Pardons v. Freedom

of Information Commission, supra, 210 Conn. 650.

4 General Statutes § 52-146j provides: ‘‘(a) Any person aggrieved by a

violation of sections 52-146d to 52-146j, inclusive, may petition the superior

court for the judicial district in which he resides, or, in the case of a

nonresident of the state, the superior court for the judicial district of Hartford, for appropriate relief, including temporary and permanent injunctions,

and the petition shall be privileged with respect to assignment for trial.

‘‘(b) Any person aggrieved by a violation of sections 52-146d to 52-146j,

inclusive, may prove a cause of action for civil damages.’’

5

In support of its claim, the commission cites to Chairman, Board of

Education v. Freedom of Information Commission, 60 Conn. App. 584,

760 A.2d 354 (2000) (disclosure of employee’s personnel or medical files),

Superintendent of Police v. Freedom ofInformationCommission, 222Conn.

621, 629–30, 609 A.2d 998 (1992) (disclosure of pistol permits), and West

Hartford v. Freedom of Information Commission, 218 Conn. 256, 264–65,

588 A.2d 1368 (1991) (disclosure of addresses of retired employees). We

find these cases to be inapposite to the present case.

6 General Statutes § 52-146e provides: ‘‘(a) All communications and

records as defined in section 52-146d shall be confidential and shall be

subject to the provisions of sections 52-146d to 52-146j, inclusive. Except

as provided in sections 52-146f to 52-146i, inclusive, no person may disclose

or transmit any communications and records or the substance or any part

or any resume thereof which identify a patient to any person, corporation

or governmental agency without the consent of the patient or his authorized representative.

‘‘(b) Any consent given to waive the confidentiality shall specify to what

person or agency the information is to be disclosed and to what use it will

be put. Each patient shall be informed that his refusal to grant consent will

not jeopardize his right to obtain present or future treatment except where

disclosure of the communications and records is necessary forthe treatment.
‘‘(c) The patient or his authorized representative may withdraw any consent given under the provisions of this section at any time in a writing

addressed to the person or office in which the original consent was filed.

Withdrawal of consent shall not affect communications or records disclosed

prior to notice of the withdrawal.’’

7 General Statutes § 52-146d provides in relevant part: ‘‘(2) ‘Communications and records’ means all oral and written communications and records

thereof relating to diagnosis or treatment of a patient’s mental condition

between the patient and a psychiatrist, or between a member of the patient’s

family and a psychiatrist, or between any of such persons and a person

participating under the supervision of a psychiatrist in the accomplishment

of the objectives of diagnosis and treatment, wherever made, including

communications and records which occur in or are prepared at a mental

health facility . . . .’’

8 The interpretation of §§ 52-146d and 52-146e proffered in the concurring

and dissenting opinion is contrary to this court’s well established interpretation of this statute. The interpretation unnecessarily restricts the protections

afforded to psychiatric records of individuals who seek mental health treatment in this state in favor of ‘‘this state’s abiding commitment to ‘the open

conduct of government and free public access to government records.’

Wilson v. Freedom of Information Commission, 181 Conn. 324, 328, 435

A.2d 353 (1980) . . . .’’ (Citations omitted.) The concurring and dissenting

opinion fails to acknowledge, however, that its very strict interpretation of

§§ 52-146d and 52-146e, which is completely unsupported by any case law,

serves to threaten the ‘‘broad privilege in the confidentiality of their psychiatric communications and records’’ that the citizens of this state have long

enjoyed in all circumstances, not just those involving requests under the

act. (Internal quotation marks omitted.) Falco v. Institute of Living, supra,

254 Conn. 328. Indeed, the interpretation posed in the concurring and dissenting opinion in the present case would serve to discourage individuals

from seeking mental health treatment for fear that information contained

in records prepared by mental health and other medical providers would

notremain confidential, but could be disclosed without the patient’s consent.

We refuse to interpret the psychiatrist-patient privilege in such a manner

so as to thwart mental health treatment in this state at a time when society

is seeing the ever increasing need for individuals to seek out and receive

mental health treatment.

This court has repeatedly recognized that ‘‘[t]he privilege covers not only

communications between the patient and psychiatrist, but also all communications relating to the patient’s mental condition between the patient’s family

and the psychiatrist and his staff and employees, as well as records and

communications prepared at mental health facilities.’’ (Internal quotation

marks omitted.) State v. Kelly, 208 Conn. 365, 379, 545 A.2d 1048 (1988).

‘‘Our statutory scheme prohibits the disclosure of any covered records or

communications without the written consent of the patient or his authorized

representative.’’ State v. Jenkins, 271 Conn. 165, 180–81, 856 A.2d 383 (2004).

Contrary to this well established interpretation, and without any citation

to authority, the concurring and dissenting opinion would have us remand

the case for further findings as to whether the medical and dental records

were prepared as part of Gilligan’s mental health treatment. A remand in

this matter is unnecessary. The plaintiffs have already presented testimony

that the records at issue are ‘‘the psychiatric and medical records of [the

hospital] of . . . Gilligan.’’ The plaintiffs’ witness further testified that the

records were created under the direction of a psychiatrist, were prepared

at the hospital and that the hospital was considered a mental health facility

for the treatment and diagnosis of mental illness at the time the communications occurred. Furthermore, as the concurring and dissenting opinion

acknowledges, ‘‘[i]fthe documents themselves demonstrate thatthe privilege

applies, a proponent can meet this burden simply by offering the documents

for in camera inspection by the commission’s hearing officer . . . .’’ Not

only is such a task nearly impossible for records that were created at a

mental health facility approximately fifty to ninety years ago, but such

distinctions are inconsistent with the purpose of §§ 52-146d and 52-146e

and our interpretation of those statutes. See, e.g., State v. Jenkins, supra,

271 Conn. 176 (nursing assessment prepared at mental health facility where

patient was being treated covered under § 52-146d). Moreover, the approach

adopted in the concurring and dissenting opinion is inconsistent with other

courts that have addressed this issue. See, e.g., Ex parte Western Mental

Health Center, 884 So. 2d 835, 840 (Ala. 2003) (‘‘[i]t is not disputed that

. . . medical records, created during the psychiatrist-patient relationship,

are included in the confidentialrelationship and are also privileged’’ [internal

quotation marks omitted]). Indeed, ‘‘[r]ecognizing the rule that hospital and

medical records are generally within the physician-patient privilege, [courts

in many jurisdictions have] allowed hospitals to assert the privilege on

behalf of their patients.’’ Annot., 10 A.L.R.4th 552, § 4 (1981). In the present

case, the plaintiffs have satisfied their burden, through testimony and by

virtue of the records themselves, that the documents fall within the protections of §§ 52-146d and 52-146e.

The disclosure at issue is not covered by any of the exceptions in § 52-

146f. ‘‘It is just as clear that no exception is available beyond those contained

in § 52-146f. . . . With respect to § 52-146e, we have noted that the legislature has narrowly drafted the exceptions to the general rule against disclosure after carefully balancing the important countervailing considerations.’’

(Citation omitted.) Falco v. Institute of Living, supra, 254 Conn. 330.

Moreover, the concurring and dissenting opinion completely ignores the
fact that many of the records that it finds to be subject to disclosure identify

the patient and include the patient’s diagnosis. As stated previously in this

opinion, in discussing the disclosure of identifying information contained

within records of a mental health facility, this court has reasoned as follows:

‘‘Although we are cognizant that [c]ommunications that bear no relationship

to the purpose for which the privilege was enacted do not obtain shelter

under the statute and are admissible subject to the normal rules of evidence

. . . we are equally convinced that the protection of communications that

identify a patient are central to the purpose of the statute. The language of

the statute supports this conclusion. Section 52-146e (a) specifically prohibits the disclosure or transmission of any communications or records that

would identify a patient . . . . Section 52-146d provides that the phrase

identify a patient refer[s] to communications and records which contain

(A) names or other descriptive data from which a person acquainted with

the patient might reasonably recognize the patient as the person referred

to, or (B) codes or numbers which are in general use outside of the mental

health facility which prepared the communications and records . . . . Further, the fact that an explicit exception contained in subdivision (3) of § 52-

146f permits the disclosure of a patient’s name, address and . . . [t]hat the

person was in fact a patient for purposes of collection disputes between

the hospital and the patient, lends weight to our conclusion that the general

rule against disclosure applies with equal force to identity as to other information.’’ (Internal quotation marks omitted.) Id., 328–29.

‘‘We also disagree . . . that identifying information is of lesser importance within the statutory scheme than other communications and records.

The confidentiality of a patient’s identity is as essential to the statutory

purpose of preserving the therapeutic relationship as the confidentiality of

any otherinformation in a patient’s communications and records. The statute

recognizes the unfortunate reality that a stigma may attach to one who

seeks psychiatric care, and that revealing a patient’s identity may subject

him or her to embarrassment, harassment or discrimination.’’ Id., 329.

We are bound to apply this court’s interpretation of §§ 52-146d and 52-

146e in Falco v. Institute of Living, supra, 254 Conn. 329, which prohibits

the disclosure of any documents from which a patient can be identified.

None of the parties have asked us to overrule or modify our decision in

that case. Furthermore, in the fifteen years since Falco, the legislature

has not acted to amend §§ 52-146d and 52-146e in response to this court’s

interpretation. ‘‘Although we are aware that legislative inaction is not necessarily legislative affirmation . . . we also presume that the legislature is

aware of [this court’s] interpretation of a statute, and that its subsequent

nonaction may be understood as a validation of that interpretation.’’(Internal

quotation marks omitted.) Caciopoli v. Lebowitz, 309 Conn. 62, 78, 68 A.3d

1150 (2013). By choosing not to legislatively overrule Falco, the legislature

has acquiesced to this court’s interpretation of §§ 52-146d and 52-146e.

Indeed, one of the indicators of legislative acquiescence to ourinterpretation

of a statute is the passage of ‘‘an appropriate interval [of time] to permit

legislative reconsideration . . . without corrective legislative action

. . . .’’ Hummel v. Marten Transport, Ltd., 282 Conn. 477, 494–95, 923 A.2d

657 (2007).

The concurring and dissenting opinion relies on State v. Montgomery,

254 Conn. 694, 759 A.2d 995 (2000). In Montgomery, Elaine Janas, a mental

health assistant at Cedarcrest Hospital, testified at a criminal trial regarding

a telephone conversation she overheard between the defendant and a third

party unconnected to the facility, while the defendant was a patient at the

mental health facility in which she worked. Id., 722–23. The defendant

appealed claiming that ‘‘because Janas was assigned by a psychiatrist to

observe him and to record his behavior, anything that the defendant said

within her earshot necessarily related to his diagnosis and treatment.’’ Id.,

723. This court rejected the defendant’s claim and concluded that the trial

court properly allowed Janas to testify ‘‘in the presence of the jury regarding

the defendant’s statement.’’ Id. This court reasoned as follows: ‘‘As the trial

court concluded, the communication at issue was not between the defendant

and a psychiatrist or Janas, but, rather, between the defendant and an

unknown third party located outside of the hospital. Moreover, the defendant’s instruction to that third party not to ‘forget [he] was with [the third

party] last night’ bore no relation to the defendant’s diagnosis or treatment.

The mere fact that Janas was assigned to observe the defendant for his own

protection does not transform the defendant’s statement into a protected

communication under the psychiatrist-patient privilege. A contrary determination would extend that privilege well beyond the plain statutory language

that defines it. Accordingly, we reject the defendant’s claim that the trial

court improperly permitted the state to elicit Janas’ testimony regarding the

defendant’s statement.’’ Id., 725.

A review of the opinion and the briefs in Montgomery demonstrates that

the defendant never claimed that Janas’ testimony violated §§ 52-146d and

52-146e because it revealed the defendant’s identity as an individual who

received treatment at the mental health facility. Indeed, although Montgomery was decided approximately two months after Falco, the court did not

address Falco in Montgomery. The absence of such a reference indicates

that this court did not consider Montgomery to raise an issue regarding

disclosure of identifying information. We conclude that Montgomery is inapposite to the present case because it involved a communication by the

patient to a third party, which is not an issue in the present case.

Moreover, the concurring and dissenting opinion misstates the factual

and procedural background of Montgomery. Specifically, the concurring

and dissenting opinion explains as follows: ‘‘[Janas] was permitted to testify

about patient conversations that she overheard even though her testimony

identified the defendant as a psychiatric inpatient. . . . [Janas] was allowed
to testify before the court, initially outside the presence of the jury, that

the defendant was treated at the psychiatric hospital where she worked;

that a psychiatrist had instructed her to monitor the defendant on a ‘ ‘‘oneto-one’ ’’ basis and take notes of his activities every fifteen minutes; and

that such protocol was typical for suicidal patients. . . . The trial court

allowed her testimony and she repeated much of this same information

to the jury.’’ (Citations omitted; emphasis added.) This is inaccurate. In

Montgomery, this court explained as follows: ‘‘The defendant filed a motion

in limine to preclude [Janas’] testimony . . . . The trial court conducted

a hearing on the defendant’s motion outside the presence of the jury. At

the hearing, Janas testified that, pursuant to a psychiatrist’s instructions,

she was assigned to monitor the defendant on a ‘one-to-one’ basis on . . .

the day after the homicide. Pursuant to those instructions, Janas was to

remain within ‘arm’s length’ of the defendant at all times and to take notes

regarding the defendant’s activities every fifteen minutes. Janas further

testified that ‘one-to-one’ supervision is ordered for a patient’s protection,

usually when that patient is suicidal.’’ (Emphasis added.) State v. Montgomery, surpa, 254 Conn. 722–23. In contrast, when describing Janas’ trial testimony, this court only stated: ‘‘Janas . . . testified in the presence of the jury

regarding the defendant’s statement.’’ (Emphasis added.) Id., 723. Therefore,

unlike the representation in the concurring and dissenting opinion, nothing

in this court’s opinion in Montgomery explains to what extent, if any, Janas’

testimony revealed the identity of the defendant in that case as a psychiatric

inpatient. Accordingly, we are not persuaded that Montgomery is relevant

to our analysis in the present case.

The concurring and dissenting opinion asserts that certain administrative

documents should not be exempt from disclosure. We disagree. There are

approximately fourletters from the superintendent of the facility to Gilligan’s

daughter, which contain identifying information and responses to questions

about hertreatment. There is one letterfrom the superintendent to Metropolitan Life Insurance that details Gilligan’s diagnosis, psychiatric treatment

and mental state. We conclude that these correspondence are covered under

§§ 52-146d and 52-146e because they contain identifying information and

information related to Gilligan’s diagnosis. See Falco v. Institute of Living,

supra, 254 Conn. 322–23 (concluding that facility was not required to release

‘‘name, last known address and social security number’’ of former patient).

The concurring and dissenting opinion asserts that the fact that Gilligan’s

commitment to the hospital is a matter of public record and that the department has already released numerous records indicating her commitment to

the hospital are reason to disclose additional documents that identify her.

We disagree. The issue before us is only whether these particular documents

should be disclosed. We have not been asked to indicate whether the department’s prior disclosures were proper and those disclosures are not, therefore, part of the present appeal. Consequently, we do not address those

prior disclosures. We also conclude that interpreting the psychiatrist-patient

privilege in light of what the public may or may not know about the person

or his or her medical history is a dangerous proposition not authorized by

statute. As this court stated in Falco, ‘‘it is contrary to the language of the

statute and the intent of the legislature for courts to make discretionary

case-by-case determinations of when the privilege may be overridden.’’ Id.,

331. This is precisely what the concurring and dissenting opinion is suggesting we should do in the present case. Thus, while the concurring and

dissenting opinion may choose to criticize our approach as ‘‘heavy-handed’’

and ‘‘yield[ing] the detritus of a needless collision between two competing

statutory mandates,’’ which is ‘‘at odds with § 52-146e’’ and an ‘‘overbroad

interpretation of the privilege,’’ we are merely applying our established

case law.

The concurring and dissenting opinion further asserts that Pisano testified

that ‘‘certain documents were not psychiatric records, including the correspondence with Gilligan’s daughter.’’ (Emphasis omitted.) We disagree with

this representation of the testimony. Pisano cataloged the documents in the

file, but never offered an opinion as to whether all of the documents were

or were not psychiatric records. The testimony was as follows:

‘‘[Assistant Attorney General]: . . . [W]hen you reviewed the records, did

you find any records that were not specifically psychiatric in nature?

‘‘[Pisano]: Well, as stated, there was the newspaper clippings. There was

the correspondence between the warden at the Connecticut State Prison

in Wethersfield and the superintendent at [the hospital]. There was—

* * *

‘‘The Hearing Officer: The . . . original question was, as I heard it, were

there records that were not psychiatric records?

* * *

‘‘[Pisano]: Okay. And there was . . . the correspondence by the state’s

attorney. There was the news clippings, the Metropolitan Life Insurance.

There was correspondence between the superintendent and . . . the

patient’s daughter.’’

We disagree with the concurring and dissenting opinion’s assertion that

the plaintiffs’ witness testified that the correspondence between the superintendent and the patient’s daughter was not a psychiatric record. Even if the

witness had offered his opinion as to whether they were psychiatric records,

a determination of whether the records at issue fall within the protection

of §§ 52-146d and 52-146e is a legal determination, not a factual one. Moreover, the plaintiffs disclosed many of the documents listed by the witness,

including many communications from Metropolitan Life Insurance to the

hospital, the correspondence from the state’s attorney, the correspondence

between the warden and the superintendent, and the newspaper clippings.

9 General Statutes § 17a-545 provides: ‘‘Every patient hospitalized under

any of sections 17a-540 to 17a-550, inclusive, shallreceive a physical examina-
tion within five days of his hospitalization, and at least once each year

thereafter. Every patient shall be examined by a psychiatrist within fortyeight hours of his hospitalization, and at least once each six months thereafter.Reports of all physical and psychiatric examinations shall be completed

and signed by the examining physicians and made a part of the patient’s

permanent clinical record.’’