New Connecticut law restricts access to privileged records

You-Jin Han | Freedom of Information | Feature | October 3, 2011

An amendment to Connecticut open record laws now allows state agencies to refuse to release records which are covered by a legal confidentiality privilege, regardless of whether such a privilege existed when the materials were created. For example, agencies may refuse to release records containing communications which are protected from disclosure by the doctor-patient or therapist-patient privileges.

Previously, Exemption 10 to the Connecticut open records law allowed agencies to withhold, among other things, records which are covered by only one privilege: the one between attorneys and their clients. The amendment expands this language to include records which fall under other privileges, such as those existing between doctor-patient and therapist-patient. However, the amendment also exempts records covered by “any other privilege established by the common law or the general statutes,” and even those “made prior to the establishment of the applicable privilege.”

“It’s an avalanche on historical study,” said Matthew Warshauer, Professor of History at Central Connecticut State University and co-chair of the Connecticut Civil War Commemoration Commission.“Every historian will not gain access to certain information because of that amendment because it’s so broadly worded. It will hit every social historian, religious historian, legal historian, medical historian.”

Tom Hennick, Public Information Officer for Connecticut’s Freedom of Information Commission, explained that the amendment was “snuck in” during the final 48 hours of the legislative session, an act which he said “leaves a bad taste in your mouth legislatively.” He said the amendment “creates an incredible retroactivity,” as a record which would now be covered by a legal privilege could be withheld even if the record pre-dated the existence of the privilege.

One person whose job is already being affected by the amendment, Connecticut State Librarian Kendall Wiggin, said a problem with the language of the amendment is that its scope is unclear. “At the moment we’re going to basically shut off access to quite a few categories of records,” he said, as it is “not clear as to how the law will really affect them until we get a better clarification.”

James Siemianowski, Public Information Officer for Connecticut’s Department of Mental Health and Addiction Services, said the amendment gives patients seeking treatment in public hospitals the same level of confidentiality as those who go to private hospitals. The Department unsuccessfully pursued a similar amendment earlier this year after the state’s Freedom of Information Commission ordered it to release records documenting Civil War soldiers’ post-traumatic stress disorder to Warshauer in 2010. However, he said the language in the enacted law is “broader than what [the Department] originally had proposed.”

Hennick said the important thing to remember now is that this law is one of Connecticut’s permissive exemptions; that is, if an agency believes the public’s best interest would best be served by the release of documents that fall into the exemption, then the agency can choose to release them.