Jeanne Milstein

Child Advocate

18-20 Trinity Street

Hartford, CT

Dear Ms. Milstein:

This letter responds to your request for a formal opinion as to whether the Office of the Child Advocate (OCA) is authorized, under Conn. Gen. Stat. § 46a-13m, to obtain records in the possession of the Department of Mental Health and Addiction Services (DMHAS) that you state are necessary to carry out your statutory responsibilities.  For the reasons that follow, we conclude that your office is authorized to obtain these records from DMHAS under the express and clear terms of Conn. Gen. Stat. § 46a-13m.

By way of background, you state that your office is conducting a program evaluation and management audit of the State’s provision of mental health services to children.  In addition, the OCA is evaluating the process by which children with significant mental health needs transition from DCF to DMHAS. On April 28, 2007, a youth, who had recently transitioned from DCF to DMHAS, was murdered in Hartford allegedly by five individuals who had also been in DCF’s custody and received DCF services. Four of the five individuals allegedly involved in the murder transitioned directly from DCF to DMHAS.  The remaining individual was in DCF care until the age of 17 and was later admitted to a DMHAS facility after a short break in time. All six of these individuals are between the ages of 18-21.

By letter dated May 2, 2007, the OCA requested that DMHAS provide it with all records in DMHAS’s possession concerning the murdered youth and the five youths allegedly involved in the murder. On June 11, 2007, DMHAS turned over to OCA copies of records regarding four of the individuals.  DMHAS determined that records of these four individuals could be turned over to OCA because they either had an open DCF file or had transitioned from DCF to DMHAS pursuant to a Memorandum of Agreement (MOA) between the two agencies, the purpose of which is to coordinate services “for clients who are within the care of DCF (committed or voluntary) and who are eligible for services through DMHAS.”¹  With respect to the remaining two individuals, DMHAS has sought guidance from this office as to whether the OCA has authority to obtain these records, since the individuals whose records are requested are over the age of 18 years, and therefore not “children,” and have no ongoing connection to DCF.  We conclude that the OCA does have authority to obtain these records under the circumstances presented, and that DMHAS is required to turn them over to the OCA.

Review of the question presented requires examination of Section 45a-13m’s language, history and context.  When “’[c]onstruing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature....  In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... 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....  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....’”  Clark v. Commissioner, 281 Conn. 380, 389 (2007) (Internal quotation marks and footnote omitted) quoting Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398, 405 (2006).

Conn. Gen. Stat. § 46a-13m(a) is clear on its face and expressly grants the OCA broad and unfettered access to records of other state agencies to carry out its duties,² and provides:

Notwithstanding any provision of the general statutes concerning the confidentiality of records and information, the Child Advocate shall have access to, including the right to inspect and copy, any records necessary to carry out the responsibilities of the Child Advocate as provided in subsection (a) of section 46a-13l. . . .

(Emphasis added.)

Section 46a-13m(a), by its express terms, grants the OCA access to “any records necessary to carry out” the Office’s responsibilities.  This Section does not limit the OCA’s access to records of individuals under a certain age nor does it require that the individual have an ongoing connection to DCF.  On the contrary, the language of § 46a-13m is intentionally broad, allowing the OCA to obtain records from any state agency “notwithstanding” confidentiality provisions contained in other statutes.

The legislative history of § 46a-13m supports this broad interpretation.  The Office of the Child Advocate was created in 1995 to oversee the provision of services to children and to advocate on their behalf.  In 1997, the OCA’s authorizing statute, and § 46a-13m in particular, was amended by 1997 Conn. Pub. Acts. No. 97-319.  The legislative proceedings surrounding the 1997 amendment to § 46a-13m make clear that the amendment was intended to broaden the OCA’s access to records to include all records of all state agencies, including DMHAS.  In particular, in 1995, when the OCA was first created, Section 45a-13m(a) provided:

The child advocate shall have access to the following information:

(1)  The name of a child in protective services, treatment or other programs under the jurisdiction of a department addressing child welfare or juvenile justice, and such child’s location if in custody;

(2)   All written reports of child abuse and neglect;

(3)  All current records required to be maintained under the provisions of sections 7-48, 7-50, 7-51, 10-209, 17a-28, 17b-90, 17b-225, 19a-25, 19a-499, 46b-11 and subsection (e) of section 46b-56 of the general statutes; and

(4) All records of state agencies, schools, police, health and medical providers, and the courts as may be necessary to carry out the responsibilities of the child advocate.

1995 Conn. Pub. Acts No. 95-242, Sec 8.  Because this language specifically identified certain records, such as those specified in subsection (3), confusion arose as to whether the Child Advocate had access to other unspecified records.

In explaining the need to amend section 46a-13m to its present form, former Child Advocate Kristine Ragaglia explained the problems the OCA had in obtaining records from state agencies and specifically mentioned DMHAS:

The Child Advocate’s access to information appears to be extremely broad in the Act.  The problem is that Section 8 contains specific and general access provisions, and Section 9(2) contains another access provision.  As the Child Advocate has embarked on gathering information to review the recent child deaths in Connecticut and reviewing certain complaints the Child Advocate has met some opposition.  The provisions as they currently stand have created in the minds of the holders of certain records an ambiguity as to their meaning, resulting in refusal to immediately produce some of the documents.

For example, concerns have been raised as to whether probate court records and psychiatric records maintained by DMHAS are accessible because those records keeping/confidentiality statutes are not listed in Section 8(a)(3) . . .   

Joint Standing Committee, Judiciary, p.869, February 24, 1997 (testimony of Kristine D. Ragaglia).

            In response, the Legislature amended § 46a-13m to delete the language in subsections (a)(1)-(4) quoted above and replaced it with the broad language currently set forth in § 46a-13m(a).  Although the amendment was not discussed on the Senate or House floor, the analysis of the amendment by the Office of Legislative Research (OLR) stated that it was intended to expand the Child Advocate’s access to information.  Specifically, OLR stated that “[t]he bill extends the advocate’s access to records, and the authority to inspect, copy and subpoena them, to any records she needs to carry out her duties, regardless of their confidentiality under any other law.”  OLR Amended Bill Analysis, p.152 (1997)(emphasis added).

Thus, it is clear from the plain language of § 46a-13m and its legislative history that the Legislature intended to grant the OCA broad and unfettered access to records of state agencies, including DMHAS, that it needs to carry out its duties, with no limitation on the age of the individual whose records are sought and regardless of whether there is a continuing DCF connection.  

The only limitation in § 46a-13m is that the records be “necessary to carry out the responsibilities of the Child Advocate as provided in subsection (a) of § 46a-13l.”  Conn. Gen. Stat. § 46a-13l sets forth the OCA’s numerous statutory duties and responsibilities and directs the OCA to, among other things:  (1) “Evaluate the delivery of services to children by state agencies and those entities that provide services to children through funds provided by the state” (§ 46a-13l(1)); and (2) “Recommend changes in state policies concerning children including changes in the system of providing juvenile justice, child care, foster care and treatment.” (§ 46a-13l(6)).  In addition, the Child Advocate serves on the Child Fatality Review Panel, which is charged with reviewing the circumstances of child deaths “due to unexpected or unexplained causes to facilitate development of prevention strategies to address identified trends and patterns of risk and to improve coordination of services for children and families in this state.”  Conn. Gen. Stat. § 46a-13l(c).

You indicate that the DMHAS records are necessary both to your investigation into the death of one of the individuals and to your ongoing evaluation of mental health services to children.  In particular, you state that the records are necessary to your “ongoing evaluation of systemic issues related to transition of care for children ‘aging out’ of DCF and requiring services from DMHAS.... To effectively evaluate the provision of services and the transition process, and to make recommendations for improvement, it is necessary to understand not only the process but the outcomes of that process.”

We agree that your conclusion that the DMHAS records you requested are “necessary to carry out” your statutory responsibilities is reasonable in the context of your present investigation into the death of a youth who had recently transitioned from DCF to DMHAS, as well as your evaluation of the success of services DCF provided to these individuals. It is reasonable and rational for you to conclude, under the circumstances presented here, that in order to determine the success of programs for children and youth who “age out” of the state system, you need to review records of other state agencies, like DHMAS, which provide subsequent services to those same individuals, particularly where those subsequent services are provided so close in time and while the individuals are still considered young adults.³ To find otherwise would conflict with the plain meaning and intent of §§ 46a-13m and 46a-13l to provide the OCA broad access to records and information maintained by state agencies in connection with its duties and responsibilities to evaluate the services provided to children with state funds. 

We therefore conclude that pursuant to Conn. Gen. Stat. § 46a-13m, DMHAS must turn over the records of the two remaining youths to your office.

I trust this letter responds to your concerns.

Very truly yours,

                                                              RICHARD BLUMENTHAL

ATTORNEY GENERAL