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Supreme Court: Whiting police reports can’t be kept secret

Whiting Forensic Division in Middletown on Tuesday, Oct. 13, 2020. The hospital provides treatment and evaluation services for patients with mental health conditions who are involved in the criminal justice system or are not ready to be safely treated in less restrictive settings.
Yehyun Kim
CT Mirror
Whiting Forensic Division in Middletown on Tuesday, Oct. 13, 2020. The hospital provides treatment and evaluation services for patients with mental health conditions who are involved in the criminal justice system or are not ready to be safely treated in less restrictive settings.

A state Supreme Court ruling ordering the release of internal police reports related to a death inside the Whiting Forensics Hospital in 2016 is being hailed by freedom of information advocates as an important decision to limit the state’s use of patient confidentiality laws to keep records secret.

The court ruled that the state Department of Mental Health and Addiction Services must release the reports regarding the choking death of a man at Whiting, the state’s mental hospital for the criminally insane, partially overturning a lower court ruling. The court ruled that any medical or personal information about the dead man or other patients who witnessed the incident could be redacted from the report.

The original request for the documents was filed by Hartford Courant reporter Josh Kovner in 2017. The request was denied — DMHAS claimed that the police reports were protected under HIPAA, the Health Insurance Portability and Accountability Act, because they contained medical information about the man who died and because they were confidential psychiatric records.

The FOI Commission initially ruled that, since the DMHAS has its own police department, the officers’ reports should be treated like any other police department’s and be released in their entirety with no redactions.

The state appealed that ruling to Superior Court, where a judge concluded that the police report fell within the definition of ‘‘communications and records’’ because the report was prepared at a mental health facility and related to the treatment of a patient’s mental health condition.

Both sides appealed that ruling to the state’s highest court, with the state asking the court to decide if the records were exempt from disclosure under FOIA, either because of psychiatrist-patient privilege or by HIPAA. It ruled they are not exempt.

“The decision ensures that an untimely death which occurs when a patient is under the custody, control or care of a public institution will be investigated thoroughly and that the cause will not be shielded from public view,” FOI Executive Director Colleen Murphy said. “The Supreme Court is saying that the FOI Act is an exception to HIPAA, and that is a good consequence for us going forward.”

“The state always tries to refuse records requests using the blanket excuse that they are medical records, which just isn’t the case, because many times they are records of an investigation that are important for the public to see how the state polices itself,” said Mitch Pearlman, the former executive director of the Freedom of Information Commission (Pearlman is also a member of the CT Mirror’s board of directors).

Pearlman said this ruling should stop state agencies from claiming patient confidentiality and “pushing the ball down the court” so that it takes six years, as with this case, to get a ruling.

The death occurred on Dec. 2, 2016 inside Whiting Forensic, the state’s maximum security unit on the grounds of Connecticut Valley Hospital in Middletown. At that time, The Courant, citing sources close to the dead man’s family, identified him as 24-year-old Andrew Vermiglio.

At that time, a spokeswoman for DMHAS said only that the patient died “due to a medical event” and that patient privacy laws prevented the agency from commenting further.

The Supreme Court ruled that not every communication or report can be considered a psychiatric record or a medical record. The 30-page ruling referred to the patient only as “P.”

The court “clarified that not every communication involving or concerning a psychiatric patient necessarily relates to the diagnosis or treatment of that patient’s mental health condition and rejected the notion that its case law stood for the broad proposition that the psychiatrist-patient privilege prohibits the disclosure of all communications and records that are made or prepared at a mental health facility and that identify a patient, regardless of the identities of the individuals between whom the communication is made.”

“In the present case, the police report, which was prepared after P stopped receiving treatment at Whiting, was not a part of P’s clinical file, and, in view of the nature and timing of the postmortem investigation conducted by the DMHAS police officers, it was clear that the officers who prepared the report were not participating in the accomplishment of the objectives of diagnosis and treatment when they prepared the report but, instead, were performing the traditional law enforcement function of investigating an untimely death.”

The ruling will now require state agencies to be more selective when trying to invoke HIPAA or patient confidentiality when denying an FOI request, according to Mike Savino, the president of the Connecticut Council of Freedom of Information.

“This is an important victory for FOI advocates because now anytime they don’t want you to see an investigation or a report, they can’t just claim patient confidentiality,” Savino said. “It has to be narrowly considered and not a broad policy to deny records requests.”

Launched in 2010, The Connecticut Mirror specializes in in-depth news and reporting on public policy, government and politics. CT Mirror is nonprofit, non-partisan, and digital only.