Opinion
No. CR-02-564924
December 3, 2004
MEMORANDUM OF DECISION ON PETITIONS FOR DISCLOSURE OF ERASED CRIMINAL RECORDS
These petitions arise out of a dismissed criminal action prosecuted by the Office of the Chief State's Attorneys Medicaid Fraud Control Unit against Dr. Richard Weber. On December 22, 2003, the state's attorney entered a nolle prosequi on a charge of Larceny in the First Degree pursuant to General Statutes § 53a-122(a)(4), and the court, on the defendant's motion, dismissed the criminal action pursuant to General Statutes § 54-56b.
On August 30, 2003, the first petitioner, the State of Connecticut, pursuant to General Statutes § 54-142a(f), requested that the court enter an order authorizing disclosure of the defendant's erased police and court records and any records of any state's attorney in the criminal case. The reason for the state's request is that the defendant filed a claim dated April 29, 2004 in the Office of the State Claims Commissioner against the state alleging, inter alia, false arrest and malicious prosecution. The state, by and through the office of the attorney general, represented that the requested records were needed to defend the state against the civil claim. On October 8, the court ordered the records sought by the state preserved from destruction and ordered them disclosed to the assistant attorney general or his duly authorized representative. The former criminal defendant, Weber, is deemed, by filing his claim with the Claims Commission, to have waived, to a limited extent, the nondisclosure provision of § 54-142a(f) as well as the provision of § 54-142(e) that would otherwise permit him to have his arrest records destroyed. The fundamental purpose of the statute is served by permitting limited disclosure of the records to counsel for the state in order for the state to take reasonable steps to defend itself against Weber's threatened action while sealing and segregating the records to prevent disclosure to anyone else. State v. Anonymous, 237 Conn. 501, 517, 680 A.2d 956 (1996).
". . . for purposes of § 54-142a, `[e]rasure alone does not mean the physical destruction of the documents.'" Doe v. Manson, 183 Conn. 183, 185, 438 A.2d 859 (1981), cited in Ruggerio v. Fuessenich, 237 Conn. 339, 348, 676 A.2d 1367 (1996). Weber has not sought physical destruction of the records and it is unlikely that he will make such a request during the pendency of any of civil action.
Prior to the state's request for disclosure of the erased records, the Office of the Chief State's Attorney had not responded to Weber's own request that "the complete original file of any state's attorney and Inspector involved in the investigation and prosecution" of Weber be delivered to his counsel. Weber had sent this request to Deputy Chief State's Attorney Paul E. Murray in correspondence dated July 2, 2004 and August 16, 2004. On October 13, 2004, Weber therefore petitioned this court for disclosure of all erased records in the possession of the Office of the Chief State's Attorney to his duly authorized attorney for inspection and copying. The state, represented by the Office of the Attorney General, objects to Weber's petition, claiming that full disclosure of all the records in the possession of the Office of the Chief State's Attorney violates the attorney work-product privilege and invades the privacy of an assistant state's attorneys personnel records. The state also claims that some documents do not pertain to the charge.
Weber claims that the language of General Statutes § 54-142a(e), which specifically states that "any law enforcement agency having information contained in such erased records shall not disclose to anyone, except the subject of the record, upon submission . . . of satisfactory proof of the subject's identity . . ." guarantees the subject of the erased criminal record, the former criminal defendant, full and unfettered access to the files in the possession of the Office of the Chief State's Attorney. (Emphasis added.)
To facilitate a decision on Weber's petition, this court ordered the state to make all records available for inspection and copying to Weber except such records it claims were privileged or otherwise nondisclosable. The court further ordered the state to file with this court, under seal, for an in camera inspection, the items it claims were nondisclosable as well as to submit a privilege log identifying each item and the specific reasons for its claimed non-disclosability. The state complied with these orders on October 22, 2004.
The state suggests that the court leave the discovery of these erased criminal documents to the decision of the Claims Commissioner, who may, pursuant to General Statutes § 4-151(b) and (c) issue discovery orders. Needless to say, this is a tempting proposal; however, § 54-142a(f) only permits a court to order disclosure. Nothing the court decides here, however, precludes or limits the Commissioner from determining which, if any of these materials, it will consider in those proceedings.
The erasure statute permits disclosure of erased criminal records, including records in the possession of any state's attorney, to the defendant regarding information pertaining to any charge erased. However, courts have held that the statute, § 54-142a, (subsections (a) and (e)), does not authorize disclosure of privileged material or material otherwise non-disclosable. See Martin v. Grievance Committee, 2002 WL 1609748 (Conn.Super. 2002), (records not pertaining to charge and personnel records held not disclosable); Chasen v. Blue Cross, 1993 WL 540196 (Conn.Super. 1993) (state's attorney work product held not disclosable). In State v. West, 192 Conn. 488, 494, 472 A.2d 775, (1984), which involved a motion for suppression of an identification made from a photograph of the defendant obtained from a previously dismissed criminal action, our Supreme Court cautioned that in interpreting § 54-142a, the subject erasure statute, courts must be cognizant of other law and construe both so as to "leave room for the meaningful operation of the other."
In West, the court held that identification data regulated by General Statutes § 29-15 are not among records whose disclosure is governed by 54-142a. Thus, the police may retain and utilize such items after a dismissal. The court rationalized that an identification photograph pertains to the subject individual's identity and not to any specific criminal charge. "In our construction of the erasure statute, we must consider the requirement of any other statute that regulates the disposition of data acquired by the police in the ordinary course of a criminal proceeding." Id., 493.
Accordingly, a court may consider privacy considerations and other statutory or common-law privileges in refusing to allow disclosure of erased records, even to the subject of the records. The West decision also suggests a definition of the phrase "pertaining to such charge," contained in subsection (a) of the erasure statute, by noting that a photograph does not disclose when or where a person was arrested, the nature of or circumstances surrounding the crime charged, or the names of witnesses from whom further information may be obtained.
The State has declined to produce 33 documents asserting that none of the withheld documents pertain to the charge as described in Conn. Gen. Stat. § 54-142a(a). The State further claims that all the withheld documents are also protected under the attorney work product doctrine; and that several are protected as personnel records, the disclosure of which would constitute an invasion of privacy under the Freedom of Information Act. Following an in camera inspection of the documents, the court orders as follows:
The State shall produce for Weber Privilege Log Items 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 22, 23, 25, 26, 28, 30, 31, and 32.
The State shall not be required to produce Privilege Log Items 9, 16, 17, 18, 19, 20, 21, 24, 27, 29, and 33.
DISCUSSION I. Records Not Pertaining to the Charge
The State claims that none of the 33 documents submitted under seal "pertain to the charge," as required by General Statutes § 54-142a(a), rendering them not discoverable. Despite the State's claims, upon review, I find that all of the records except Privilege Log Items 20, 21 and 33, do pertain to the dismissed charge against Weber. As noted above, anything that discloses when or where a person was arrested, the nature of or circumstances surrounding the crime charged or the names of witnesses from whom further information may be obtained pertains to the charge. The State relies on Martin v. Grievance Committee for G.A. 13 14, 2002 WL 1609748 (Conn.Super. 2002), but that case is distinguishable, as it involved a grievance hearing where a document in a personnel investigation of a former prosecutor who had been arrested for criminal conduct, which the court specifically held did not pertain to the charge, was sought. Even so, the item sought was, in fact, ordered disclosed as a matter of public concern despite privacy considerations expressed by the former prosecutor, the subject of the record.
II. Work Product Doctrine
The State further claims that all 33 documents are absolutely protected under the attorney work product doctrine.
"Work product doctrine protects an attorneys "interviews, statements, memoranda, correspondence briefs, mental impressions, personal beliefs and countless other tangible and intangible [items]." Hickman v. Taylor, 329 U.S. 495, 511, 91 L.Ed. 451, 67 S.Ct. 385 (1947).
The work product protection is not absolute. Exceptions to this doctrine have been recognized in Connecticut and other jurisdictions. Documents designated as work product, even the strategies, theories and mental impressions of an attorney, may be discovered where the requested materials are essential to a party's claim and cannot be otherwise obtained. Cloutier v. Liberty Mutual Insurance Co., 21 Conn. L. Rptr. No. 14, 472, 473, affirmed, 60 Conn.App. 904, 759 A.2d 1056, cert. denied, 255 Conn. 919, 763 A.2d 1043 (1998); Robarge v. Patriot General Insurance Company, 42 Conn.Sup. 164, 608 A.2d 722, 6 Conn. L. Rptr. 186 (1992); Bourget v. Government Employees Insurance Company, 48 F.R.D. 29 (D.Conn. 1969). In Cloutier, the plaintiff needed certain documents to prove his chief allegation, that the defendant insurer had acted in bad faith in failing to pay a settlement to the insured. The court ordered those materials produced, using a fact specific balancing test that weighs the benefit gained by disclosure in the interest of justice with injury that would be caused to the attorney-client relationship. The trial court held that "any generalized, nonspecific and nonpredictive injury which the defendant claims will befall its relationship with [its attorney] is substantially outweighed by this plaintiff's need to examine these documents to enable her to develop factually the core of her case." Id. In a similar bad faith case, the Arizona Supreme Court held that even work product may be produced, if substantial need exists and the documents are otherwise unavailable. ". . . [B]ad-faith actions against an insurer, like actions by client against attorney, patient against doctor, can only be proved by showing exactly how the company processed the claim, how thoroughly it was considered, and why the company took the action it did." Brown v. Superior Court In and For Maricopa County, 670 P.2d 725, 734 (Ariz. 1983). The consideration of the advice of counsel is central to the issue of whether the action taken was made in good or bad faith. Fidelity Casualty Insurance Company of New York v. Taylor, 525 So.2d 908, 909 (Fla.App. 3 Dist. 1987).
The State relies on Chasen v. Blue Cross, 1993 WL 540196 (Conn.Super. 1993) to support its assertion of work product privilege, but that case is inapposite. In Chasen, the plaintiff, who was arrested and charged with larceny in the first degree upon a complaint of Blue Cross and Blue Shield of Connecticut, had his charges nolled by the State and dismissed by the court. In his suit against Blue Cross and Blue Shield for false arrest and abuse of process, Chasen subpoenaed an assistant state's attorney and sought "any and all material in your file relative to the criminal case." Unlike this case, however, Chasen was not suing the State, a factor highlighted by the court: "It should be noted that the State of Connecticut is not a party to this action." Id.
This court is persuaded by Cloutier and related authority. In the case before the Commission on Claims, Weber's claim of false arrest and malicious prosecution against the State of Connecticut specifically references alleged misconduct on the part of the prosecution, namely, that the subsequent "arrest and prosecution of the claimant were without legal justification or merit and in violation of Claimant's state and federal rights . . ." To prove these allegations, he requires materials that pertain to the thought processes of the state's attorneys handling this matter. Civil rights actions against governmental officials for false arrest and malicious prosecution generally fail on the basis of qualified immunity unless, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue. Crone v. Connelly, 74 Conn.App. 788, 798, 813 A.2d 1084, aff'd 267 Conn. 581, 840 A.2d 552 (2004). Liability, therefore, is, in part, a question of reasonableness under the circumstances. The portions of the state's attorneys file which explain how the prosecutor processed and considered the merits of the criminal charge are certainly relevant. In an action such as Weber contemplates, the need for the information in the file is substantial. In order to prove the alleged wrongdoing by state officials, including illegal search and seizure, illegal arrest and malicious prosecution, Weber needs these materials and information and is unable to obtain their equivalent by any other means.
Unlike cases involving private clients, here, there is little likelihood of prejudice or injury to the attorney-client relationship, as a state's attorney doesn't actually have such a relationship. Connecticut courts have long recognized the special role played by the state's attorney. "He is not only an officer of the Court, like every other attorney, but is also a high public officer, representing the people of the State, who seeks impartial justice for the guilty as much as for the innocent." State of Connecticut v. Darcus Henry, 72 Conn.App. 640, 673, 805 A.2d 823 (2002); State v. Alexander, 254 Conn. 290, 302, 755 A.2d 868 (2000).
The state does not raise the issue of attorney-client privilege.
Wigmore, in support of this description of the prosecutorial role, notes that a communication from a complainant to a prosecutor, seeking redress, is not protected by the attorney-client privilege. 8 Wigmore, Evidence, § 2375, (McNaughton rev. 1961). "The prosecutor's official responsibility disables him from giving advice as a retained, partisan attorney once a complaint is filed." Id., § 2316. See also State v. Harris, 147 Conn. 589, 597, 164 A.2d 399 (1960) (communication by non-informing defendant to state's attorney prior to arrest deemed not privileged). The court fails to see how public disclosure of the process that may have gone into an exercise of prosecutorial discretion in a terminated prosecution is a particularly harmful consequence, especially when the one person disclosure would be most harmful to, Weber, is seeking the publication.
Although the following items are attorney work product, the court finds they fall under the Cloutier exception, and thus must be produced: Privilege Log Items 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 17, 22, 23, 25, 28, 30, 31, and 32. The necessity for disclosure to Weber in the interest of justice outweigh the necessity for preserving the confidentiality of the information contained in these materials.
The following documents do not have to be produced, as they are protected under the attorney work product doctrine and the Cloutier exception does not apply: Privilege Log Items 16, 17, 18, 19, 20, 21, 22, 24, 26, 27, 29 and 33.
III. Personnel Records/Invasion of Privacy
The State claims that Privilege Log Items 1, 2, 3, 4, 7, 8, 11, 14, and 15 are protected under the "personnel files" exception of the Freedom of Information Act ("FOIA"), General Statutes § 1-210:
(a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly . . . or copy such records . . . or receive a copy of such records in accordance with the provisions of § 1-212.
(b) Nothing in the Freedom of Information Act shall be construed to require disclosure of . . . (2) Personnel or medical files and similar files the disclosure of which would constitute an invasion of privacy . . .
While FOIA does not define "personnel file," "[A] `personnel' file has as one of its principal purposes the furnishing of information for making personnel decisions regarding the individual involved . . . If a document or file contains material, therefore, that under ordinary circumstances would be pertinent to traditional personnel decisions, it is `similar' to a personnel file. Thus, a file containing information that would, under ordinary circumstances, be used in deciding whether an individual should, for example, be promoted, demoted, given a raise, transferred, reassigned, dismissed or subject to other such traditional personnel actions, should be considered `similar' to a personnel file for the purposes of [1-210(b)]." Connecticut Alcohol Drug Abuse Commission v. Freedom of Information Commission, 233 Conn. 28, 41, 657 A.2d 630 (1995).
§ 1-210(b)'s "invasion of privacy" clause has been interpreted in keeping with its common-law tort meaning under § 652D of the Restatement (Second) of Torts: "public disclosure of any matter that `(a) would be highly offensive to a reasonable person, and (b) is not a legitimate concern to the public." Perkins v. Freedom of Information Commission, 228 Conn. 158, 172, 635 A.2d 158 (1993). It does not authorize a blanket protection of all contents of a public employee's personnel files from public disclosure.
A review of the items the state claims are personnel records contain nothing that clearly refers to subject matter pertinent to traditional personnel decisions. None of the items are actually drawn from personnel files. Rather, they contain requests from superiors to an assistant state's attorney that he explain certain decisions he made in handling of the criminal case against Weber. They clearly pertain to the charge and were not prepared solely to address a personnel issue, but were part of the office's internal discussions as to the handling of the criminal file. They don't even purport to threaten disciplinary action, as was the case with the item sought to be disclosed in Martin v. Grievance Committee for G.A. 13 14, supra. In that case, the court concluded the item sought to be disclosed was a personnel document. However, the court ordered the item disclosed anyway, ruling that it was not an invasion of privacy to release a document about an attorneys misconduct to the grievance committee. Conversations memorialized in Privilege Log Items 2 and 11, where defense counsel was present, occurred with respect to a conflict that arose just prior to the dismissal of this case between an assistant state's attorney and his superiors. It would not be highly offensive to a reasonable person to disclose these matters to Weber, whose counsel, in fact, already knows of the existence of some disagreement among members of the office of the Chief State's Attorney with respect to the handling of his case. I also find that the disclosure of documents pertaining to these internal discussions may be of legitimate concern to the public. This court therefore finds that Privilege Log Items 1, 2, 3, 4, 7, 8, 11, 14, and 15 are not protected as belonging to a personnel or similar file.
The state is ordered to make the Privilege Log Items ordered disclosed available to Weber's counsel for inspection and copying, or provide copies to him, on or before December 22, 2004.
KELLER, J.