In Re F.E.F.

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                           Nos. 89-228 & 89-296


In Re F.E.F., Juvenile                       Supreme Court

                                             On Appeal from
     and                                     District Court of Vermont,
                                             Unit No. 1, Bennington Circuit

State of Vermont                             November Term, 1989

     v.

Edwin G. Cameron


Robert Grussing III, J. (89-228)
Theodore S. Mandeville, Jr., J. (89-296)


Jeffrey L. Amestoy, Attorney General, Montpelier, and Alexandra N. Thayer,
  Assistant Attorney General, Waterbury, for plaintiff-appellant Department
  of Social and Rehabilitation Services

William Wright, Bennington County State's Attorney, Bennington, for
  plaintiff-appellant State

Witten, Saltonstall & Woolmington, Bennington, for defendant-appellee F.E.F.

William M. McCarty and Bruce Hesselbach of McCarty Law Offices, Brattleboro,
  for defendant-appellee Cameron


PRESENT:  Allen, C.J., Peck, Gibson and Dooley, JJ., and Springer, D.J.
          (Ret.), Specially Assigned


     DOOLEY, J.   This is a consolidated appeal from district court orders
in a criminal case and an unrelated juvenile delinquency case.  Both orders
require the Vermont Department of Social and Rehabilitation Services (SRS)
to disclose records relating to child abuse investigations conducted in
connection with the cases.  In both cases, SRS has appealed the disclosure
order.  In the juvenile delinquency proceeding, SRS's failure to disclose
the records led to dismissal of the case, and the State has appealed the
dismissal through the state's attorney.  We affirm the disclosure order in
both cases, but reverse the dismissal of the juvenile proceedings.
     In State v. Cameron, defendant is charged with sexual assault on a
minor, his daughter, in violation of 13 V.S.A. { 3252(a)(3).  The probable
cause affidavit of a Bennington police officer indicates that defendant's
wife and daughter originally made the complaint to an SRS worker who called
the police officer.  The alleged victim's statement was taken at the SRS
office.  The State disclosed the SRS worker as a trial witness, but did not
turn over any of her records in discovery.  Defendant sought her records
from the state's attorney and eventually filed a motion for disclosure of
all SRS records concerning the alleged sexual abuse.
     Defendant made a number of claims in support of his asserted need for
the records.  He noted that the officer's statement indicated that he had
interviewed the victim jointly with the SRS worker.  He also stated that in
cases of alleged child abuse by a parent, the protocol in effect in southern
Vermont required an interview with the other parent, here the mother, and
that he needed to see that interview because the mother had requested
charges be dropped, apparently in return for a divorce property settlement.
Defendant also claimed that the protocol required a medical examination of
the alleged victim, but the State, in response to discovery requests, stated
without explanation that no medical examination had been conducted.
Finally, defendant alleged that there were inconsistencies in the victim's
statements that were made available to him and that there was at least one
more interview done by an SRS worker that was not made available to him.
     Based on defendant's motion and a hearing, the court required SRS to
turn over the records to the court pursuant to V.R.Cr.P. 16(2)(f) so that
the court could make an in camera inspection.  SRS was given permission to
appeal this order pursuant to V.R.A.P. 5.1 but was not granted a stay.  The
records were turned over to the court, and many were disclosed to defendant
pending this appeal.
     The history of the juvenile delinquency proceeding is similar.
Defendant is charged with a sexual assault on a nine-year-old boy in
violation of 13 V.S.A. { 3252(a)(3).  A state police officer's affidavit
accompanying the petition indicates that a joint interview of the alleged
victim was conducted with an SRS worker who acted as the "lead interviewer."
At a preliminary hearing in March 1989, the court ordered the State to
provide discovery of all "Rule 16 matters including SRS investigative files
. . . as to this matter."  When the deputy state's attorney attempted to
obtain the records from SRS, the department refused to provide them and
communicated that refusal to the court along with an affidavit of the
district director explaining its file-access policy and its relationship to
the state's attorney's office.  This led to a motion to compel and the
issuance by defendant's counsel of a subpoena duces tecum to require the
district director to bring the records to a hearing.  At the hearing, the
SRS director indicated that he had provided the state's attorney's office
with two anatomically-correct drawings on which the alleged victim, during
his interview with the officer and the SRS worker, marked the area where he
had been sexually abused.
     Following the hearing, the court reiterated its decision that the SRS
file was discoverable under V.R.Cr.P. 16, but ordered that it be turned over
to the court for an in camera inspection.  SRS then filed a notice of
appeal, and defendant responded with a motion to strike the notice because
the discovery order was not a final judgment.  The court struck the notice
of appeal on April 25, 1989.  When the State failed to comply with the dis-
covery order on April 27th, the date of the merits hearing, the court
dismissed the case concluding that the State had "flagrantly" violated the
court's order to produce the SRS file.  Both SRS and the State appealed from
this order.
     There are two main issues on the merits of these consolidated appeals:
(1) whether the SRS files are discoverable under the applicable provisions
of the Vermont Rules of Criminal Procedure; (FN1) and (2) whether all or part of
the SRS files are discoverable as a matter of due process of law under the
standards announced in Pennsylvania v. Ritchie, 480 U.S. 39 (1987).  If we
find the files discoverable under either theory, we must consider in the
juvenile delinquency case whether dismissal was the proper sanction.
                                    I.
     Before we address the merits issues, however, we must consider
appellees' position that the SRS appeals are not properly before us.  In
F.E.F., both SRS and the state's attorney appealed from the dismissal order.
The State's appeal from the final judgment properly brought the case before
us.  See 4 V.S.A. { 2(a) (Supreme Court has jurisdiction over appeals from
district court); 13 V.S.A. { 7403(b) (in felony criminal cases, State can
appeal from dismissal of indictment or information).  For this reason, we
need not address whether the SRS appeal is proper.
     In Cameron, the only appeal before us is one taken by SRS as a
collateral order appeal.  See V.R.A.P. 5.1.  The collateral order doctrine
creates a limited, discretionary exception to the normal final judgment
rule.  It "offers appellate review in the small number of extraordinary
cases where the normal appellate route will almost surely work injustice,
irrespective of this Court's final decision."  In re Maple Tree Place
Associates, 151 Vt. 331, 333, 560 A.2d 382, 383 (1989).  The order to be
appealed must "'conclusively determine the disputed question, resolve an
important issue completely separate from the merits of the action, and be
effectively unreviewable on appeal from a final judgment.'"  State v.
Lafayette, 148 Vt. 288, 291, 532 A.2d 560, 561 (1987) (quoting Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).
     We have been very reluctant to allow interlocutory review of discovery
orders, because such review would result in piecemeal appellate review
rarely justified by judicial economy.  See Ley v. Dall, 150 Vt. 383, 384-85,
553 A.2d 562, 563 (1988).  We are also reluctant to find appellate juris-
diction at the request of a nonparty.  We recognize that our reluctance
must give way in an appropriate case in response to a claim of privilege.
However, we must insist in such cases that the trial court has made a
conclusive determination of the privilege issue.
     In this case, there was no conclusive determination.  The State
complied with the discovery order without resistance. (FN2) We agree with the
seventh circuit court of appeals that "a party's sincerity [is tested by]
having to risk a [sanction] as a condition to appeal."  Ryan v.
Commissioner of Internal Revenue, 517 F.2d 13, 20 (7th Cir. 1975).  In the
comparable situation where a nonparty seeks a collateral order appeal of
the court's refusal to quash a subpoena against it, the federal courts have
insisted that the matter ripen into a contempt proceeding so that there is
nothing left for court action but the execution, and the nonparty has
formally been brought into the proceeding.  See, e.g., In re Grand Jury
Subpoena for New York State Income Tax Records, 607 F.2d 566, 569 (2d Cir.
1979).  Here, as the proceedings in F.E.F. show, both SRS and the State
could have gone further to bring the dispute to a head.  Their failure to do
so defeats collateral order jurisdiction.
     Although we do not believe that Cameron is a proper case for collateral
order jurisdiction, we do have some discretion to provide review.  The situ-
ation here is comparable to that in State v. Saari, 152 Vt. 510, 513, 568 A.2d 344, 347 (1989), where we found no jurisdiction for a State appeal of
an allegedly unlawful sentence but indicated review was available by
extraordinary relief.  Although the State failed to bring a proper extra-
ordinary relief petition, we considered the case anyway, using V.R.A.P. 2 to
suspend the requirements of V.R.A.P. 21, the extraordinary relief rule,
"because of the importance of the issue and because no further facts are
necessary in order to consider the merits."  Id. at 514-15, 568 A.2d  at 347.
Similarly, in this case, SRS's mode of review, if any, lies in extraordinary
relief.  See Ley v. Dall, 150 Vt. at 386, 553 A.2d  at 564.  Since the iden-
tical issue is already before us in F.E.F. and no further factual
development is necessary, we exercise our discretion under V.R.A.P. 2 to
consider the SRS appeal in Cameron.
                                    II.
     In addressing the first merits issue, we start by emphasizing the
narrowness of the discovery orders and requests in these cases.  Neither of
the orders requires disclosure of any material to appellees. (FN3) Instead, both
require production of the records for in camera inspection by the district
court.  See V.R.Cr.P. 16.2(f).  Thus, SRS may still argue that "specified
disclosures be denied, restricted, or deferred," pursuant to Rule 16.2(d),
as a result of the in camera review.
     In Cameron, the request was for SRS records and reports "concerning the
alleged sexual abuse" of the victim.  In F.E.F., the order was to produce
SRS investigation files "as to this matter."  Thus, we are dealing with
documents that clearly come within the scope of discovery as defined in
V.R.Cr.P. 16(a)(2)(C),(D) & (G).  In fact, it does not appear that the State
has argued that the requested documents are outside the normal scope of
discovery for a criminal or juvenile delinquency case.  Instead, the State
has made two claims to resist discovery: (1) the documents are not possessed
or controlled by the prosecutor so they cannot be provided in discovery;
and (2) the documents are privileged.
     The question of whether there is a sufficient nexus to the prosecutor
for these materials is governed by V.R.Cr.P. 16(c).  That subdivision
states:
           The prosecuting attorney's obligations under sub-
         divisions (a) and (b) of this rule extend to material
         and information in the possession, custody, or control
         of members of his staff and any others who have parti-
         cipated in the investigation or evaluation of the case
         and who either regularly report, or with reference to
         the particular case have reported, to his office.

The parties agree that the SRS files are not in the "possession, custody or
control" of the staff of the state's attorney.  The trial court in each case
decided, however, that the files were in the possession of persons who have
participated in the investigation of the case and "who regularly report
. . . to his office."  There is little dispute that the first prong of this
test is met.  In both cases, the initial interviews of the alleged victim
were conducted by SRS workers along with the police.  This is normal because
the primary responsibility for investigating reported cases of child abuse
or neglect in this state rests with the Commissioner of SRS.  See 33 V.S.A.
{ 4915.
     The applicability of subdivision (c) thus turns on the applicability of
the reporting prong.  The Reporter's Notes and drafting source shed some
light on the meaning of this prong.  The notes state that the rule covers
material "possessed or controlled by others, such as police officers,
involved in the investigation of the case under the prosecution's
direction."  Reporter's Notes to V.R.Cr.P. 16(c).  They amplify that the
rule excludes "employees or officers of other governmental agencies who may
be involved with the matter in question but have no working connection with
the prosecution."  Id.  The language of the subdivision was taken from the
American Bar Association Standards for Criminal Justice.  See ABA Standards
for Criminal Justice, Standard 11-2.1(d) (2d ed. 1978); see also Unif. R.
Crim. P. 421(a), 10 U.L.A. 114-15 (1974).  The commentary to the ABA
standard indicates that the purpose is to charge the prosecutor with
responsibility for "information known to people within the prosecutor's
scope of authority while discharging the prosecutor from responsibility for
. . . information known to government employees 'who have no connection
with the prosecution and, for practical purposes, may be regarded as third
parties.'"  Id., commentary to Standard 11-2.1(d) (quoting ABA Discovery
and Procedure Before Trial 78 (1970)).
     It is clear from the context that the word "report" means to provide
certain information.  See O'Neill v. State, 675 P.2d 1288, 1292 (Alaska App.
1984) (Singleton, J., concurring) (decided under Alaska Rule of Criminal
Procedure 16(b)(4), which contains language virtually identical to V.R.Cr.P.
16(c)).  The question then is whether SRS regularly reports particular
information to the state's attorney.  To answer this question, we must look
at the role and responsibility of SRS in child abuse cases.  As indicated
above, SRS is the primary investigative agency when child abuse is
reported.  Even the police must report suspected child abuse and neglect to
SRS.  See 33 V.S.A. { 4913(a).
     The nature of SRS action in confirmed cases of child abuse and neglect
varies.  In any case, it must assist the child and the child's family.  33
V.S.A. { 4915(c).  Some cases go further to legal action.  Many result in
CHINS proceedings in juvenile court.  These are filed by the state's
attorney on request of SRS, certain other designated agencies, or persons
who show that SRS failed to refer the matter after a specific period of
time.  See 33 V.S.A. { 5517(a).  Where SRS refers a case to the state's
attorney for the filing of a CHINS petition, SRS must deliver to the state's
attorney a report containing a record of the facts and circumstances of the
case.  See 33 V.S.A. { 5517(c).
     Others cases lead to criminal prosecutions.  Although the statutes
have no specific provision on referral of cases to the state's attorney for
criminal prosecution, the Commissioner may provide the contents of the SRS
investigation file to the state's attorney, but may not provide it to
another law enforcement agency.  See 33 V.S.A. { 4916(d).  This latter
provision is an indication that the legislature intended SRS to be the
primary reporting agency to the state's attorney in a case of child abuse
cases.
     The working relationship between SRS and the state's attorney is such
that the test of the second prong of Rule 16(c) is met.  Even putting aside
cases that are referred for criminal or juvenile delinquency prosecution,
the relationship in CHINS cases requires regular reporting.  In such cases,
SRS provides the necessary information to bring the CHINS case and works
under the direction of the state's attorney, who must present the case to
the juvenile court.  The records in these cases show, however, that this
reporting also occurs in criminal and juvenile delinquency cases.  In
Cameron, the SRS worker is listed as a prosecution witness.  In F.E.F., the
SRS worker prepared an important exhibit during the interview of the alleged
victim and provided it to the prosecutor.  SRS workers are not third
parties, unconnected to the presentation of these cases.
     We recognize that there are considerations, as SRS argues, that cut
against a disclosure obligation.  The clearest indications of regular
reporting are in noncriminal proceedings.  Further, a disclosure obligation
arising from SRS's investigatory responsibility may undercut its family
assistance responsibility.  While SRS workers may act under the direction of
the prosecutor, they are not controlled by the prosecutor in the same way
an employee would be controlled, and thus could refuse to provide the
information to the prosecutor.  We can only say that none of these circum-
stances avoid the application of the rule as drafted.  The same control
situation exists for the police, who are clearly covered by Rule 16(c).  The
rule contemplates that the areas of reporting and of information gathering
may not be the same.  See Ballentine v. State, 707 P.2d 922, 929 n.4 (Alaska
App. 1985) (Alaska rule extends to information obtained in crime stopper's
program run by the police).  SRS's additional social service obligation does
not change its role as the primary investigative agency for child abuse.
See Craig v. State, 544 A.2d 784, 789 (Md. Ct. Spec. App. 1988) (records of
sexual assault center subject to disclosure under identically worded
Maryland criminal rule because of special investigative role in child abuse
cases), rev'd on other grounds, 560 A.2d 1120 (1989).
     The second ground raised to resist disclosure is that SRS files are
covered by a statutory evidentiary privilege.  SRS cites two statutes as
providing a privilege to cover the information at issue here. (FN4) The first is
the agency's general confidentiality provision prohibiting disclosure of
"information pertaining to . . . recipients of assistance or benefits"
except for "purposes directly connected with the administration of the
department or when required by law."  33 V.S.A. { 111(a) (made applicable to
SRS by 33 V.S.A. { 306(a)).  The second is the statute specifically
applicable to child abuse and neglect investigations.  See 33 V.S.A. {
4916(d).  The statute provides:

            Written records maintained in the registry [of child
          abuse and neglect investigations] shall only be
          disclosed to the commissioner or person designated by
          the commissioner to receive such records, persons
          assigned by the commissioner to investigate reports, the
          person reported on, or a state's attorney.  In no event
          shall records be made available for employment purposes,
          for credit purposes, or to a law enforcement agency
          other than the state's attorney.  Any person who
          violates this subsection shall be fined not more than
          $500.00.

 Subsection (e) of the latter statute requires verbal notice of a substan-
 tiated report of child abuse and neglect to the child's parent or guardian
 and allows for provision of the written record to the parent or guardian, or
 in certain cases, to the child's attorney. See 33 V.S.A. { 4916(e)(1),(2).(FN5)
      For purposes of analysis, we will accept two propositions urged by SRS.
 The first is that in the absence of a constitutional obligation to disclose,
 privileged communications and information may not be discovered under Rule
 16.  Although the rule does not state this proposition directly, we agree
 that it is the logical interpretation of the rule.  See State v. Roy, 151
 Vt. 17, 32, 557 A.2d 884, 893 (1989); State v. Percy, 149 Vt. 623, 632, 548 A.2d 408, 413 (1988).  The second is that the information sought in these
 cases is covered by the confidentiality statute for information in the
 registry of records of child abuse and neglect proceedings.  Indeed, if the
 information is not covered by the statute, the case for nondisclosure is
 weaker.
      Both of the statutes relied upon by SRS make information confidential.
 This does not mean, however, that they establish evidentiary privileges.
 See 23 C. Wright & K. Graham, Federal Practice and Procedure { 5437, at 892-
 93 (1980).  Where we have recognized statutes as creating evidentiary
 privileges, the intent of the legislature to do so was far more clearly
 expressed.  In Camp v. Howe, 132 Vt. 429, 432, 321 A.2d 71, 72-73 (1974) and
 Wheeler V. Central Vermont Medical Center, Inc., ___ Vt. ___, ___, 582 A.2d 165, 168 (1990), the statutes in question specifically stated that the
 information involved could not be admitted in evidence in a court
 proceeding.  In State v. Roy, 151 Vt. at 32, 557 A.2d  at 893, the statute at
 issue, 20 V.S.A. { 1923(a), did not expressly provide that it prevented the
 introduction of the information made confidential into evidence in a court
 proceeding.  However, the disclosure exceptions were very narrow and clearly
 did not apply in the circumstances for which access was sought.  We
 concluded that because it was clear "that the intent of the statute is that
 the records not be subject to disclosure except for the statutory
 purposes," a form of evidentiary privilege was created.  State v. Roy, 151
 Vt. at 32, 557 A.2d  at 893.
      Because evidentiary privileges directly undercut the truth-seeking
 function of court proceedings, we will not construe a confidentiality
 statute as creating an evidentiary privilege unless the intent to do so is
 clear.  See C. Wright & K. Graham, supra { 5347, at 893.  We cannot find the
 requisite intent with respect to either of the statutes cited by SRS.  The
 general confidentiality statute gives way when disclosure is provided by
 law, which covers mandated disclosure for use in a court proceeding.  The
 confidentiality statute for the investigation of child abuse and neglect is
 riddled with exceptions and gives the Commissioner broad discretion to allow
 disclosure.  Moreover, the statute allows for the information to reach the
 prosecutor for law enforcement use.  It is likely that the legislature
 intended that the information in the registry would be used where
 appropriate in criminal and CHINS proceedings.  We do not think an
 evidentiary privilege was intended.
      Because the material in issue in both cases is discoverable from the
 prosecution and is not protected by an evidentiary privilege, the orders to
 turn over the material for in camera inspection were proper.  We do not have
 to reach appellees' additional claim that disclosure is required as a matter
 of due process of law.  We do have to consider the sanction question in
 F.E.F.
                           III.
      Rule 16.2(g) provides broad authority for the imposition of sanctions
 for failure to comply with a discovery rule or order.  Under this sanction
 authority, "the court may order such party to permit the discovery of
 material and information not previously disclosed, grant a continuance, or
 enter such other order as it deems just under the circumstances."
 V.R.Cr.P. 16.2(g)(1).  The court may impose sanctions on counsel for a
 willful violation of a discovery rule or order.  V.R.Cr.P. 16.2(g)(2).
      We agree that dismissal of the proceeding may be a necessary sanction
 in some cases.  However, the sanction should not be harsher than necessary
 to accomplish the goals of the discovery rules.  See United States v. Gee,
 695 F.2d 1165, 1169 (9th Cir. 1983).  The use of a dismissal sanction is
 proper only if the court finds that the defendant would be prejudiced by
 anything less than dismissal.  See State v. Sird, 148 Vt. 35, 39, 528 A.2d 1114, 1116 (1987) (reversal of conviction proper remedy for discovery
 violation only if prejudice is shown); cf. John v. Medical Center Hospital
 of Vt., Inc., 136 Vt. 517, 519, 394 A.2d 1134, 1135 (1970) (in civil case,
 dismissal sanction should be used only where there has been "bad faith or
 deliberate and willful disregard for the court's orders").
      Although the discovery violation in this case was flagrant in the sense
 that SRS intentionally refused to comply with the order, its action appears
 to have been motivated by a desire to test the validity of the order.  Even
 if SRS continues to resist compliance on remand, it does not follow that the
 proper sanction is dismissal.  It may be that through other discovery the
 parties can determine the contents of the relevant SRS files and their
 significance to the defense, and fashion a remedy thereafter.
 Alternatively, since appellee issued a subpoena to SRS, enforcement of the
 subpoena may bring relief.  It is entirely appropriate to make the State
 bear the cost of any additional discovery.  Of course, if the court
 determines after further exploration that only dismissal will eliminate the
 prejudice to the defendant, it may order dismissal at that time.
      The order in State v. Cameron, No. 89-296, is affirmed.  The dismissal
 order in In re F.E.F., No. 89-228, is reversed and remanded for proceedings
 not inconsistent with this opinion.

                                                  FOR THE COURT:




                                                  Associate Justice



FN1.    The Vermont Rules of Criminal Procedure apply in juvenile delin-
quency proceedings.  See In re J.R., 147 Vt. 7, 10, 508 A.2d 719, 721
(1986).

FN2.    Appellee Edwin Cameron argues that, because the State complied, this
appeal is moot.  We note, however, that a claim of privilege is not defeated
when disclosure is compelled erroneously.  See V.R.E. 511.  Since disclosure
was made in response to a court order, we do not believe that the privilege
claim has been waived.
       We must also emphasize, however, that the consequences of disclosure
supply the major reason for interlocutory review.  The fact that disclosure
has already occurred greatly undercuts SRS's argument that a collateral
order appeal is appropriate.

FN3.    The order in Cameron to produce the documents for in camera
inspection was followed by an order requiring disclosure of some of the
contents of the SRS file to defendant.  Although this disclosure order was
covered by the notice of appeal, SRS has failed to provide it to us or make
any specific claims about the documents it was required to disclose.
Accordingly, we can review only the order to produce the documents for in
camera inspection.

FN4.    SRS also claims that disclosure of the information in these cases
will violate federal provisions requiring SRS to protect the confidentiality
of information concerning persons assisted with federal funds.  See 42
U.S.C. {{ 671(a)(8); 45 C.F.R. { 1340.14(i).  There is no indication that
these provisions require the state to establish evidentiary privileges.  In
any event, they do not directly create privileges in Vermont court
proceedings.  Cf. In re K.H., ___ Vt. ___, ___, 580 A.2d 48, 48-49 (1990)
(family reunification requirement of 42 U.S.C. { 671(a)(15) does not require
trial court, in ruling on petition for termination of parental rights, to
make a finding on State's alleged noncompliance with the federal statute).

FN5.    Subsection (c) of { 4916 requires the Commissioner of SRS to adopt
rules to permit use of the registry while preserving confidentiality of the
records.  The Commissioner has adopted regulations, but they provide no more
detail than is set forth in the statute.  See Vermont Dep't of Social and
Rehabilitation Services, Social Services Policy Manual { 2018, 3 Code of
Vermont Rules, Rule 13163002, at 22 (1982).