Opinion
DBDCV186028651S
05-16-2019
Alexander P. Monclure v. Anne E. Crane
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Krumeich, Edward T., J.
MEMORANDUM OF DECISION
Krumeich, J.
Plaintiff Alexander P. Monclure has moved for permission to redact certain allegations in the filed second amended complaint and to seal his unredacted complaint in this action that alleges he was defamed and the victim of tortious conduct by defendant Anne E. Crane. Plaintiff seeks to keep confidential certain accusations allegedly made against him by defendant relating to plaintiff’s character and conduct. Defendant has stated she does not object to the request. For the reasons stated below, the motion is denied.
Practice Book § 11-20A provides, in pertinent part:
"(a) Except as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public. (b) Except as provided in this section and except as otherwise provided by law, including Section 13-5, the judicial authority shall not order that any files, affidavits, documents, or other materials on file with the court or filed in connection with a court proceeding be sealed or their disclosure limited. (c) Upon written motion of any party, or upon its own motion, the judicial authority may order that files, affidavits, documents, or other materials on file or lodged with the court or in connection with a court proceeding be sealed or their disclosure limited only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public’s interest in viewing such materials. The judicial authority shall first consider reasonable alternatives to any such order and any such order shall be no broader than necessary to protect such overriding interest. An agreement of the parties to seal or limit the disclosure of documents on file with the court or filed in connection with a court proceeding shall not constitute a sufficient basis for the issuance of such an order."
In Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 34-35 (2009), the Supreme Court traced the history of the open courts policy at common law and observed: "This tradition of open trials made its way to colonial America and evolved into a presumption of public access to court proceedings and records that remains a fundamental part of our judicial system today ... The rationale underlying the presumption is straightforward: Public monitoring of the judicial process through open court proceedings and records enhances confidence in the judicial system by ensuring that justice is administered equitably and in accordance with established procedures ... ‘[T]he bright light cast upon the judicial process by public observation diminishes the possibilities for injustice, incompetence, perjury and fraud. Furthermore, the very openness of the process should provide the public with a more complete understanding of the judicial system and a better perception of its fairness.’ " (Citations omitted.)
Under our law a complaint filed with the clerk is a "judicial document" to which the open-courts policy applies: "[t]he vindication of this interest supports public access, not only to the proceedings themselves, but to any materials upon which a court may rely in reaching a decision. Accordingly, we hold that judicial documents are those filed with a court upon which the court reasonably could rely in the performance of its adjudicatory function, including discovery related motions and their associated exhibits." Rosado, 292 Conn. at 47-48. "While in the court’s possession, judicial documents remain part of the court’s records and are subject to the presumption of public access pursuant to Practice Book § 11-20A(a)." Id. at 54.
The presumption is not irrebutable and may be overcome "if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public’s interest in viewing such materials." P.B. § 11-20A(c). In Doe v. Rackliffe, 173 Conn.App. 389, 397 (2017), a decision concerning a party’s application to proceed anonymously, the Appellate Court discussed the showing needed to overcome the presumption in favor of disclosure: " ‘The question the court first must address when considering such an application is whether, given the presumption of openness in all judicial proceedings, the [party] has a substantial privacy right which outweighs the customary ... presumption of openness in judicial proceedings ... Furthermore, not all substantial privacy interests are sufficient to outweigh the public’s interest in open judicial proceedings. The ultimate test for permitting a [party] to proceed anonymously is whether the [party] has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings ... A [party’s] desire to avoid economic and social harm as well as embarrassment and humiliation in his professional and social community is normally insufficient to permit him to appear without disclosing his identity ... The most compelling situations [for granting a motion to proceed anonymously] involve matters which are highly sensitive, such as social stigmatization, real danger of physical harm, or where the injury litigated against would occur as a result of the disclosure of the [party’s] identity ... There must be a strong social interest in concealing the identity of the [party].’ ... ‘Because [l]awsuits are public events ... [a] plaintiff should be permitted to proceed anonymously only in those exceptional cases involving matters of a highly sensitive and personal nature ...’ " 397-98 (citations omitted).
In Doe v. Rackliffe, 173 Conn.App. at 399-401, the Appellate Court held that conclusory statements in affidavits as to the harm that plaintiffs, who alleged they were victims of sexual assault as minors and thus "may have strong privacy interests in having the allegations and surrounding circumstances concealed from public scrutiny," were insufficient to permit the trial court to "determine the existence of a substantial privacy interest that outweighs the public interest in open judicial proceedings and ... articulate any factual findings that would support such a conclusion" as required under P.B. § 11-20A. (Citations omitted.) Here, plaintiff has not submitted an affidavit articulating the specific harm anticipated from disclosure but instead has asked the Court to make such determination based solely on the nature of the redacted allegations.
In Greenan v. Greenan, 150 Conn.App. 289, 294-95 (2014), the Appellate Court upheld the refusal to seal a memorandum of decision in a family case: " ‘[t]he presumption of openness of court proceedings ... is a fundamental principle of our judicial system ... This policy of openness is not to be abridged lightly. In fact, the legislature has provided for very few instances in which it has determined that, as a matter of course, certain privacy concerns outweigh the public’s interest in open judicial proceedings.’ ... The legislature, however, statutorily permits closed hearings and sealing of records in ‘family relations matters’ where ‘the welfare of any children involved or the nature of the case so requires ...’ General Statutes § 46b-11.4.
The plaintiff argues that the ‘children’s interest in avoiding stigmatization and permanent psychological harm from the highly charged information revealed in the [memorandum of decision] overrides any public interest.’ He argues that the personal family details included in the memorandum of decision require that it be sealed.
’[The public] policy of openness is not to be abridged lightly.’ ... ‘[e]xcept as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public’). We have carefully reviewed the materials in question and decline to hold that the court abused its discretion in implicitly finding that the privacy interests in the case did not outweigh the presumption of openness and, thus, the court did not improperly deny the motion to seal."
Here, the Court has compared the redacted complaint with the unredacted complaint filed conditionally under seal and cannot conclude that the allegations sought to be sealed concern a privacy interest sufficient "to override the public’s interest in viewing such materials" as required by Practice Book § 11-20A(c). The allegations related to defendant’s statements about plaintiff’s family and ex-wife do not raise overriding privacy concerns. Moreover, given their relevance it is inevitable that there will be additional filings and proceedings concerning the allegations.
Plaintiff relies on Judge Pittman’s decision in Calderone v. Fitzgerald, 2007 WL 2039120 *2 (Conn.Super. 2007) (Pittman, J.), in which she granted a motion to permit defendants, who moved for summary judgment in an invasion of privacy case against police officials, to lodge a redacted internal disciplinary report in which the names of non-parties, the woman with whom plaintiff was having an affair and her husband, a fellow police officer, were redacted. Judge Pittman concluded the non-parties’ names were irrelevant and remarked: "[m]oreover, unlike in a defamation case, the truth or falsity of the published material has not been placed in issue. If that were so, or it becomes so, then the identities of those involved may take on a more relevant aspect." Here, plaintiff alleges he was defamed by false assertions made by defendant concerning his relationship with his family and ex-wife. These allegations are highly relevant.
Plaintiff also seeks to redact a word he claimed was uttered by defendant that accused him of criminal conduct. While it is understandable that plaintiff would find the label offensive that is hardly sufficient to overcome the open courts presumption. See Mercer v. Blanchette, 133 Conn.App. 84, 94-95 (2012) ("a [party’s] desire to avoid economic and social harm as well as embarrassment and humiliation in his professional and social community is normally insufficient"). If allegation of criminal conduct were the test for sealing under § 11-20A, all libel per se cases alleging criminal conduct would be subject to be filed under seal. See generally Miles v. Perry, 11 Conn.App. 584, 602 (1987) ("[l]ibel or slander is also actionable per se if it charges a crime involving moral turpitude or to which an infamous penalty is attached").