An Historic Battle For Soldier’s Records

By Thomas B. Scheffey

“You still haven’t changed my mind, but I appreciate your persistence.”

That’s how Sen. Michael McLachlan, R-Danbury, ended this year’s testimony from Prof. Matthew Warshauer, at the March 13 hearing on a bill to allow access to ancient state hospital records for historians and the public.

Six years ago, the Freedom of Information Commission ruled that Warshauer and his history students at Central Connecticut State University could have access to Civil War veterans’ records at Connecticut Valley Hospital (CVH), in their research on post-traumatic stress disorder.  A few months later, state lawmakers revoked that permission with new legislation.

In recent years, CVH officials have gone to extraordinary lengths to prevent access to those records, including an unexpected 2011 “midnight amendment” bill that purportedly extends a common-law doctor-patient privilege retroactively, back through time.

This year’s bill before Government Administration and Elections committee, HB 7188, limited public access to files that are more than 75 years old – the same standard recommended by the National Archive, and incorporated in the highly-protective Health Insurance Portability and Accountability Act of 1996 (HIPAA).

Warshauer asked McLachlan why he was unpersuaded, and the senator said he’d answer “offline.”  After canceling a scheduled meeting with Warshauer and representatives of the Connecticut Council on Freedom of Information, McLachlan hasn’t rescheduled.  His Senate press representative said McLachlan has had several deaths in his family in recent weeks.

Warshauer’s written and oral testimony attempted to address all the previous objections to making the historical records available.  The thrust of the objections from lawmakers on GAE appeared to focus on the stigmatization and embarrassment that descendants of these soldiers might feel.  Sen. Gayle Slossberg, D-Milford, at a 2011 GAE hearing, commented to FOI lawyer Kathleen Ross, that “if you asked the average person on the street [if] this was your grandparent [in] a state institution,” shouldn’t a medical privilege apply?   Ross replied that the records at issue pre-dated any statutory privacy privilege, and said no common law privilege was in effect, either.

In his GAE testimony this year, Warshauer emphasized that this is not about one’s grandfather:  “Please understand that this would allow access to your great, great, great grandfather’s records.”

In an interview, Warshauer said it was frustrating, as an academic and historian, to have lawmakers appear so unaffected by logic and reasoned argument.

“As a professor, as a historian, felt that if somehow you present facts and guide them down the correct path, not just the one I want, but the one from the preponderance of the evidence makes the most sense.

“I went in after reading through all of the opposition testimony of the last couple of years. And I went in a few weeks ago and specifically addressed what the opposition testimony was saying, and I think very effectively countered it, and explained why it wasn’t correct.”

McLachlan did respond to a request for an interview for this article.  He said he did not see why a patient in a state hospital would have fewer privacy rights than one in a private mental health institution, such as Silver Hill hospital in New Canaan.  Today, health records can be destroyed in just seven years, McLachlan said, “which is what should have happened to these” Civil War era records.

One provision of the proposed library records bill, which was never voted out of committee, was to allow the State Archivist to determine whether institutional records were of historic value, and save them from automatic destruction.

McLachlan said that, in his view, the issue boiled down to upholding a promise of confidentiality between a doctor and a patient, even in the grave,  “And I’m not changing my mind..”

Another historian, Eric T. Dean Jr., has had considerable success researching Civil War records of PTSD victims.  In a 10-year investigation of Indiana state mental health records and federal war pension files, Dean found 291 cases of Indiana Civil War veterans living in the Indiana Hospital for the Insane.  His book, “Shook Over Hell,” breaks new ground in understanding Viet Nam and Civil War PTSD victims.

“The gold mine for Civil War research,” said Dean, “is pension records. When it really got going in the 1880’s and 1890’s, real money was at stake,” said Dean, who currently practices law in New Haven.

“A lot of people wanted retroactive benefits.  If they applied for a Civil War pension, the government stood to pay a couple of thousand dollars,” said Dean.  “In present day terms, this was a fortune, and the government would just research the hell out of it. They had all kinds of staff who would go out and get affidavits from people.  They had medical boards that brought people in.”

The pension application records are “big fat things in old envelopes in the National Archives, and if you can zero in on people who applied for pensions,” the amount of relevant historical detail is “unbelievable,” said Dean.

The CVH officials offered Warshauer records with names redacted, a pre-condition that both Dean and Warshauer said would simply make it impossible to cross-reference other historical sources.

Both historians said their main obstacle was official protectiveness based on the idea that mental health problems are hereditary, intractable and deeply shameful.  That’s a very outdated view, said Dean: “Who would look at mental illness now, like this is some horrible, hereditary mental condition; that you have to lock people up and hide them from the public.

“Most people today would look at mental illness as the result of environmental problems, mainly.  And particularly in the military, it’s looked at as situational.  Of all the people who came back from Afghanistan and Iraq (with PTSD)  I’d defy you to find any article in a newspaper or magazine that suggests these people had a hereditary problem.”

Indeed, CVH has a tradition of annually calling out the real names of long-dead residents buried in numbered graves there, in an effort to de-anonymize and de-stigmatize mental health.  Ironically, its efforts to hide the remaining evidence of Civil War patients appear to be a step in the opposite direction.

Warshauer said he’s planning to continue his legislative fight to open these records, and sees veterans’ groups as likely allies.

“Because literally, every single veteran with whom I’ve spoken, every one of them has huge interest in PTSD, and any research that can be done to understand it better.  And they look at the idea of withholding information that’s over 150 years old as ‘are you out of your mind?’  It just makes absolutely no sense.”

Warshauer says he is definitely not giving up. “We’re going to get organized early.  You can let them know – we’re coming.”