Douglas v. Windham Superior Court
Annotate this Case
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.
No. 89-484
James H. Douglas, Secretary of State Supreme Court
v. Original Jurisdiction
Windham Superior Court and
Barbara and Gerald Wilkinsen January Term, 1990
John H. Chase, Office of the Secretary of State, Montpelier, for petitioner
Thomas Hayes of Miller, Cleary & Faignant, Ltd. Rutland, for Denise Snyder
Otis & Brooks, P.C., Montpelier, for respondents Wilkinsens
PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
DOOLEY, J. The Vermont Secretary of State, as custodian of the
records of the Vermont State Board of Nursing, petitions this Court for
extraordinary relief from a trial court order directing him to produce
certain documents in response to a pretrial discovery request. We decline
to grant the relief requested and dismiss the petition.
Respondents here are the Windham Superior Court and the plaintiffs in a
personal injury action against a registered nurse licensed by the Board, the
hospital that employs her, and the hospital's administrator. The suit
alleges, inter alia, that defendant nurse injected herself with drugs that
should have been administered to plaintiff, Barbara Wilkinsen, and then
injected water in the tainted syringes into Barbara Wilkinsen to conceal the
diversion. The complaint also alleges that the hospital and its admin-
istrator hired the nurse without properly investigating her background and
physical condition and that they failed to supervise her properly or
monitor her physical condition during the term of her employment.
In the course of pretrial discovery, plaintiffs served requests to
produce on petitioner, who is the statutory custodian of the Board's
records, seeking the following:
1. Any and all complaints of professional misconduct
directed against [the nurse].
2. The complete contents of any and all files
maintained by or in the custody of any employee or agent
of the Secretary of State concerning any complaint of
professional misconduct against and/or any possible
discipline of [the nurse], including the complete
contents of any investigative file.
3. The complete minutes of any meeting of the Vermont
State Board of Nursing at which any complaint of
professional misconduct on the part of [the nurse] or
any disciplinary action or possible disciplinary action
against [the nurse] was discussed.
4. Any other records involving the licensure and/or
discipline of [the nurse] as a registered nurse.
(Emphasis added). Petitioner responded by supplying the nurse's application
for licensure, the stipulation of settlement of the complaints against her,
and the minutes of a Board meeting of June 12, 1989. He moved to quash the
balance of the request on grounds that the material requested was privileged
and not subject to discovery. The motion was accompanied by an affidavit of
petitioner who stated he had personally reviewed the file of the nurse. He
indicated that the file contained a report to the Board from one of his
investigators transmitting the oral complaint and his preliminary
investigation of it. He also indicated that the file contains a more
complete report from the investigator, notes made by the executive director
of the Board during the investigation, and notes of a meeting between the
investigators and the nurse. The file also contains a stipulation of
settlement between the nurse and the Board, a copy of which was provided to
respondent. The stipulation contains an admission by the nurse that she
diverted drugs for her personal use while employed by the hospital.
The affidavit of petitioner stated reasons why he refused to comply
with the request to produce. As to the two reports of the investigator, he
asserted that they name persons who provided information and that
investigatory procedure "calls for the investigation stage to be
confidential, and people providing information are routinely told that." He
asserted that complaints often come from nurses and they would be deterred
from complaining if they knew the information would be provided to private
persons for use in litigation against their employer. He also asserted
that the remaining complaints come from patients, who would also be deterred
from complaining if details of their medical treatment were to be revealed.
Overall, he believed that revealing investigative reports would "undercut
the effectiveness of nursing regulation by revealing investigative
techniques."
As to the notes of the Board's director, petitioner asserted that these
also include the names of persons who provided information and show
investigative techniques used. He also stated that these notes recorded
settlement negotiations with the nurse and that disclosure of such
negotiations would discourage settlements. He concluded that settlements
are particularly important in drug abuse cases because cooperation is needed
to allow for needed drug treatment.
The trial court considered the affidavit of petitioner, as well as the
fact (apparently admitted during the hearing in the trial court) that the
names of informants were disclosed to the nurse, and concluded that no
applicable privilege existed in Vermont. The court denied the motion to
quash. The present petition for extraordinary relief followed.
Petitioner asserts that three privileges (FN1) give him the right to resist
disclosure: (1) the investigatory files privilege; (2) the informant
privilege as set forth in V.R.E. 509; and (3) the restriction on the
admission of evidence of settlement negotiations as contained in V.R.E.
408. (FN2) We agree with the trial court that the latter two contentions can be
addressed quickly. Assuming that V.R.E. 509 applies outside the criminal
context, this privilege is waived if the identity of the informant is
disclosed by the holder, here the Board, to a person "who would have cause
to resent the communication" from the informant to the government agency.
We can think of no person who would greater resent the communication of the
nurse's wrongdoing than the nurse. This privilege, if it existed, was
waived.
The other asserted source of a privilege is actually a rule of
relevancy. See V.R.E. 408. It does not create a privilege. At best, the
rule creates an argument that the settlement negotiation information should
not be disclosed because it is not relevant and is not "reasonably calcu-
lated to lead to the discovery of admissible evidence." See V.R.C.P.
26(b)(1). Petitioner did not make that argument.
Petitioner's strongest argument is the investigatory files privilege.
The trial court concluded that no such privilege exists in Vermont.
Petitioner recognizes we have never announced such a privilege, either by
decision or in the Vermont Rules of Evidence, but urges that we follow the
lead of other states in developing such a privilege as part of the common
law. See Killington v. Lash, 153 Vt. 628, 635, 572 A.2d 1368, 1373 (1990)
(recognizing qualified executive privilege); V.R.E. 501 ("This rule shall
not be construed to prevent the development at common law of other
privileges."). He argues that if such a privilege is recognized, it must
necessarily cover the information plaintiffs seek.
Before we address this argument, we must stress that we are operating
under a very limited scope of review in evaluating this kind of
extraordinary relief petition. We held recently in Ley v. Dall, 150 Vt.
383, 386, 553 A.2d 562, 564 (1988), that the intervention of this Court to
prevent discovery in the trial court was warranted only on a showing of
usurpation of judicial power or clear abuse of discretion. In State v.
Forte, 154 Vt. 46, 48, 572 A.2d 941, 942 (1990), we stated that this
standard is met if petitioner shows an arbitrary abuse of power. Thus, in
this Court, petitioner must show more than that the trial court was wrong or
gave the wrong reason for its action. When we refer to abuse of discretion,
we are saying that the trial court decision must be wrong as a matter of
law. See id. We will not intervene if there is any ground for the trial
court action, even if it is not the ground used by the trial court. (FN3)
In applying this standard of review, it is also important to emphasize
what is in issue. Petitioner does not complain about an inability to
present his case to the trial court. All facts relevant to the questions
before the trial court were presented in petitioner's affidavit and
supporting material. No evidentiary hearing is needed here or in the trial
court. Petitioner's complaint is that the court failed to apply the facts
to the law and quash the subpoena. (FN4)
We also stress the care with which we must approach any request to
create a new privilege. The most important point of privilege doctrine was
set forth by Chief Justice Burger in United States v. Nixon, 418 U.S. 683,
710 (1974):
Whatever their origins, these exceptions to the demand
for every man's evidence are not lightly created nor
expansively construed, for they are in derogation of the
search for truth.
Because of their interference with truthseeking, privileges are strongly
disfavored. See, e.g., Cronin v. Strayer, 392 Mass. 525, 533, 467 N.E.2d 143, 148 (1984); Dixon v. Rutgers, 110 N.J. 432, 446, 541 A.2d 1046, 1053
(1988). Most courts have created a testimonial privilege only when the
conditions meet the four-part test for recognition set forth in Dean
Wigmore's treatise. See, e.g., American Civil Liberties Union v. Finch, 638 F.2d 1336, 1344 (5th Cir. 1981) (privilege for governmental records). The
four requirements are:
(1) The communications must originate in a confidence
that they will not be disclosed.
(2) This element of confidentiality must be essential to
the full and satisfactory maintenance of the relation
between the parties.
(3) The relation must be one which in the opinion of the
community ought to be sedulously fostered.
(4) The injury that would inure to the relation by
disclosure of the communications must be greater than
the benefit thereby gained for the correct disposal of
litigation.
VIII Wigmore on Evidence { 2285, at 527 (McNaughton ed. 1961) (emphasis
added). Only if all conditions are present should a privilege be
recognized. See id.
We agree with petitioner that information in official investigatory
files can meet the four requirements set forth by Wigmore to warrant an
evidentiary privilege in some circumstances. We will assume for purposes of
analysis that petitioner is the proper person to claim such a privilege (FN5)
and that the privilege can extend to licensing boards. (FN6) Neither of these
assumptions are free from doubt, and both warrant further analysis in the
appropriate case. We believe, however, that petitioner has failed to make a
sufficient showing to apply the privilege in this case.
Case law and statutes in other states and in the federal system have
defined a number of interrelated privileges covering governmental inform-
ation. Petitioner relies upon the "investigatory files privilege." The
privilege was defined, as part of an official information privilege, by
proposed Fed. R. Evid. 509(a)(2) as covering governmental information "the
disclosure of which is shown to be contrary to the public interest" if it
consists of "investigatory files compiled for law enforcement purposes and
not otherwise available." This statement is somewhat vague. The coverage
of the privilege comes down to a kind of judicial judgment call -- whether
the disclosure is contrary to the public interest.
The determination of the "public interest" has turned on a number of
judicially created factors. The leading case setting forth the relevant
factors is Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. 1973),
where Judge Becker put forth the following list in a civil rights action
based on police brutality:
In the context of discovery of police investigation
files in a civil rights case, however, at least the
following considerations should be examined: (1) the
extent to which disclosure will thwart governmental
processes by discouraging citizens from giving the
government information; (2) the impact upon persons who
have given information of having their identities dis-
closed; (3) the degree to which government self-
evaluation and consequent program improvement will be
chilled by disclosure; (4) whether the information
sought is factual data or evaluative summary; (5)
whether the party seeking the discovery is an actual or
potential defendant in any criminal proceeding either
pending or reasonably likely to follow from the incident
in question; (6) whether the police investigation has
been completed; (7) whether any . . . disciplinary
proceedings have arisen or may arise from the investi-
gation; (8) whether the plaintiff's suit is non-
frivolous and brought in good faith; (9) whether the
information sought is available through other discovery
or from other sources; and (10) the importance of the
information sought to the plaintiff's case.
While the precise description of the factors will vary depending on the
nature of the case involved, the Frankenhauser list represents the most
complete and widely accepted itemization of the relevant considerations.
Although petitioner has argued that the application of the factors
should have required the trial court to grant the motion to quash, he
recognizes that the court may be able to evaluate the competing consider-
ations only after an in camera inspection of the file. We recognize that
the showing that petitioner must make to get to an in camera inspection is
less than the showing he must make to prevail on his motion to quash. It is
important, however, to insist that petitioner meet a reasonable threshold
before the court must make the inspection.
The routine use of an in camera inspection is not a satisfactory
resolution of the balancing of interests the privilege requires. "There is
. . . reason to be concerned about the possible due process implications of
routine use of in camera proceedings." United States v. Zolin, 491 U.S. 554, 571 (1989) (attorney-client privilege). In camera proceedings are
extraordinary events in the constitutional framework because they deprive
the parties against whom they are directed of the basic requirement of due
process -- the opportunity to be heard. In re Taylor, 567 F.2d 1183, 1187-
88 (2d Cir. 1977). Thus, they must be justified and allowed by a compelling
state interest. Id. at 1188. Further, they place a special burden on the
trial court because they require the court to make important and sensitive
decisions "without open adversarial guidance by the parties." Zolin, 491 U.S. at 571. Indeed, the burden is often greater because the side holding
the documents gives knowledgeable, adversarial advice while the other side
cannot articulate an informed position.
It is important to recognize that the situation here is different from
that in the recent case of Killington v. Lash, where the Governor was
asserting an absolute privilege and the court conditioned recognition of the
privilege on inspection of the material in the face of a showing of private
need for the disclosure of the information. In Killington, the scales
started in favor of nondisclosure, and the individual seeking the infor-
mation had to demonstrate need to require the court to balance. 153 Vt. at
639, 572 A.2d at 1375. In this case, the scales must start on the side of
disclosure, and the government must make a showing to require the court to
balance. See Assured Investors Life Ins. Co. v. National Union Assoc., 362 So. 2d 228, 233 (Ala. 1978). This case and Killington should be the same,
however, in the sense that the party who has the initial burden cannot
require the court to make an in camera examination without meeting that
initial burden. Thus, an order for an in camera inspection was reversed in
Killington because of the failure of the petitioner to show need for the
information. Killington, 153 Vt. at 639, 572 A.2d at 1375. For the same
reason, no order of in camera inspection can be imposed here.
The case law on the investigatory files privilege is clear that a
minimum showing is required before the court must balance the interests, and
the precedents are relatively consistent on what must be in that showing.
See, e.g., Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336,
1342 (D.C. Cir. 1984). It is best described in the recent decision of Judge
Weinstein in King v. Conde, 121 F.R.D. 180, 189 (E.D.N.Y. 1988), as follows:
The party seeking to invoke the privilege bears the
burden of justifying its application. The government
must specify "which documents or class of documents are
privileged and for what reasons." This threshold
showing must explain the reasons for nondisclosure with
particularity, so that the court can make an intelligent
and informed choice as to each requested piece of
information. "Unless the government, through competent
declarations, shows the court what interests [of law
enforcement or privacy] would be harmed, how disclosure
under a protective order would cause the harm, and how
much harm there would be, the court cannot conduct a
meaningful balancing analysis." If the police make no
such showing, the court has "no choice but to order
disclosure."
The privilege will be deemed asserted when the
objecting party timely invokes the privilege as to each
discovery result thought to invade the privilege . . .
[and files] "a declaration or affidavit . . . from a
responsible official in the agency . . . ." This
statement must be based on personal review of the
documents by an official in the police agency (not the
defendant's attorney) and must explain (not merely
state conclusorily) how the materials at issue have
been generated or collected; how they have been kept
confidential; what specific interests (e.g., of the
police officers, of law enforcement, or of public
concern) would be injured by disclosure to plaintiff, to
plaintiff's attorney, and to the public; and the pro-
jected severity of each such injury. This procedure
should discourage applications for non-revelation in all
but deserving cases.
(citations omitted; emphasis in original). Petitioner's case for with-
holding the information is based on exactly the sort of conclusory claims
that Judge Weinstein and others have found inadequate. A comparison of the
claims made with the Frankenhauser factors discloses how inadequate the
showing was in this case.
Before looking at the Frankenhauser factors, however, we should
emphasize that it is entirely appropriate for this Court to do so in an
extraordinary relief proceeding. Petitioner submitted to the trial court
and to this Court all the information relevant to its claim of privilege,
and there are no facts in issue. As we emphasized earlier, petitioner is
not entitled to extraordinary relief if there is any ground for the trial
court action. Thus, we will deny relief if the trial court could have found
that petitioner failed to make a threshold showing in this case, even though
the trial court never evaluated petitioner's showing on the merits.
Petitioner relies primarily on the first two Frankenhauser factors:
the impact disclosure will have on the ability of the government to obtain
information and the impact on persons who have given information of having
their identities disclosed. He makes a number of assertions: (1) indivi-
duals interviewed are routinely told the investigation is confidential and
the reports in the file disclose the identities of individuals who spoke
with the investigators; (2) nurses and patients would be deterred from
complaining if they knew that the information might be used by private
litigants; and (3) investigative techniques will be disclosed, thereby
undercutting the effectiveness of nursing regulation.
All of the petitioner's claims are conclusory and may or may not apply
to this particular case. They do not meet petitioner's burden. The case
law shows a great reluctance for courts to act on these kinds of broad
generalizations that disclosure will impair administrative processes. The
court in Frankenhauser stressed that "rare instances of disclosure" due to
civil suits will not deter citizens from revealing information to law
enforcement officials. The court noted that "the average citizen is . . .
willing to cooperate with law enforcement officials." Frankenhauser, 59 F.R.D. at 344.
Particularly misdirected is the claim that nurses will not speak
candidly (FN7) if they know that disclosure to litigants is possible. We find
no specific support for the generalization that nurses, whose profession is
dedicated to patient care, will conceal or distort information to prevent
injured parties from seeking redress from their employers. See King v.
Conde, 121 F.R.D. at 193; see also In re Franklin Nat'l Bank Securities
Litigation, 478 F. Supp. 577, 586 (E.D.N.Y. 1979) (government's argument
that disclosure of confidential bank examination report will chill the
relationship between bank officials and examiners "exaggerates the
danger"). If we are to make a generalization, the more likely result of
disclosure is that candor will be increased, not chilled. See Mercy v.
County of Suffolk, 93 F.R.D. 520, 522 (E.D.N.Y. 1982). As the court
emphasized in Mercy, knowledge that others may view a witness's statement
"may serve to insure that these investigations are carried out in an even-
handed fashion, that the statements are carefully and accurately taken, and
that the true facts come to light, whether they reflect favorably or
unfavorably on the [defendants]." Id.
Nor does petitioner have any serious interest in protecting the name of
informants. The names of these persons have been disclosed to the nurse who
is the defendant in the underlying lawsuit; it is difficult to see how
additional disclosure to plaintiffs will have a further impact on their
interests. There is no allegation that any of these individuals were
promised anonymity -- the disclosure to the nurse demonstrates that such a
promise is not present or it has already been broken. We are not involved
with criminal prosecution of a serious crime where witnesses may have valid
fears for their personal security. If necessary, the court can impose a
"gag order" limiting public disclosure of the names of the informants by
plaintiffs or plaintiffs' counsel.
Nor do we find weighty the broad and general claim that investigatory
techniques may be disclosed. While the privilege has been held to be broad
enough to protect against the disclosure of "newly developed investigative
techniques," S. Stone & R. Liebman, Testimonial Privileges { 9.22, at 534
(1983), there is no specific claim here that disclosure of Board inves-
tigatory methods will be compromised so that nurses engaging in disciplinary
violations will use the information to prevent disclosure of their actions
or to prevent investigation. See id. (privilege limited to circumstances
where disclosure would compromise "the usefulness of the technique in future
investigations").
The third and seventh factors, the need for governmental self-
evaluation and the presence of intradepartmental disciplinary proceedings,
are apparently not relevant in this case. Nor can we evaluate the fourth
factor, as petitioner has failed to provide us with specific information
about the documents to determine the extent to which they contain
evaluations of the evidence gathered in the investigation.
The fifth and sixth factors deal with the interrelationship of the
litigation to the investigation and the current status of the
investigation. The extent to which the litigation can interfere with an
investigation is more limited in the context of a disciplinary proceeding
than in the context of a criminal investigation. There is no indication
that any of the parties in the underlying litigation are present or future
defendants in a criminal proceeding. We are not concerned either that
discovery in the civil litigation will provide a defendant with information
not otherwise obtainable under criminal discovery rules; or that discovery
in the civil proceeding will interfere with the rights of a defendant in a
criminal proceeding. Cf. State v. Begins, 147 Vt. 295, 298, 514 A.2d 719,
722 (1986) (State's opportunity to coerce self-incriminating testimony by
scheduling probation revocation hearing prior to criminal trial poses danger
of abuse to judicial decision-making process).
It is particularly significant that the Board's disciplinary proceeding
has concluded. The Vermont Board of Nursing accepted the stipulated settle-
ment in June of 1989, well before the disclosure order. A major, if not
dominant, purpose of the investigative files privilege is to prevent dis-
covery from interfering with an ongoing law enforcement investigation or
proceeding. Thus, a summary of the case law concluded: "When an investi-
gation has been completed, the consensus is that a litigant should be
allowed access to law enforcement files." Comment, Discovery of Government
Documents and the Official Information Privilege, 76 Colum. L. Rev. 142,
158-59 (1976). Including this factor in an extensive list of relevant
factors means that it is not alone determinative. It is, however, entitled
to very significant weight in the ultimate balancing process. See United
States v. Leggett & Platt, Inc., 542 F.2d 655, 659 (6th Cir. 1976) cert.
denied, 430 U.S. 945 (1977); Mehau v. Gannett Pacific Corp., 66 Haw. 133,
156, 658 P.2d 312, 327 (1983); Laws v. Thompson, 78 Md. App. 665, 691, 554 A.2d 1264, 1277 (1989) (investigative files privilege does not apply when
"specific investigation or governmental undertaking ends.").
The eighth, ninth and tenth factors deal with the nature of plaintiffs'
underlying case, the importance of the discovery sought to the case and the
availability of the information from other sources. Petitioner has provided
us very little information from which to evaluate these factors. The
underlying lawsuit is a very serious personal injury action involving
allegations of damage to a hospital patient from the misuse of drugs by a
nurse. The stipulation of settlement between the Nursing Board and the
nurse includes admissions by the nurse that she violated disciplinary rules
by being "habitually intemperate in the use of habit forming drugs" and by
"diverting drugs for her personal use while employed at . . . [defendant]
hospital." While the record does not disclose this specifically, there is
every reason to believe that the investigation covered the alleged incident
that gave rise to the underlying lawsuit.
The trial court concluded that "[b]oth the need for, and the relevancy
of the material sought has been amply demonstrated by the plaintiffs." It
also concluded that the material may not be readily available from other
sources. Petitioner has not questioned the trial court's conclusions or
plaintiffs' need for the material, asserting instead a blanket and absolute
right to withhold it.
The need for discovery materials of this kind, based in part on the
unavailability of alternatives, is particularly strong where plaintiffs
have sued an employer of the individual who committed the alleged tortious
acts. Plaintiffs will probably have to show that the employer was aware of
the nurse's misconduct, or can be charged with that knowledge, and failed to
take action. Thus, they must determine the extent of both the misconduct
and the knowledge of the misconduct, the type of information that is likely
to arise in the Board's investigation. See Crawford v. Dominic, 469 F. Supp. 260, 263 (E.D. Pa. 1979) (importance of the information to plaintiffs'
case is the weightiest factor); Martinelli v. District Court, 199 Colo.
163, 173, 612 P.2d 1083, 1090 (1980) (same).
Finally on this point, it is significant that petitioner has failed in
any way to accommodate the legitimate needs of the plaintiffs. See United
States v. O'Neill, 619 F.2d at 227 (indiscriminate claim of privilege can be
"sufficient reason to deny it"). For example, petitioner refuses to
release even the names of complainants and persons who gave information to
the Board, to enable plaintiffs to conduct their own investigation, even
though the names were provided to the nurse. With the lack of even minimal
cooperation from petitioner, the paths available to gather the necessary
information are simply too tortuous to be reasonable alternatives to the
disclosure of petitioner's records.
When we engage in balancing of the relevant factors in light of
petitioner's duty to support his privilege claim with detailed and not
conclusory reasons why disclosure is not in the public interest, related
specifically to the documents involved and the information contained
therein, there is virtually no basis for keeping the records from the
plaintiffs. Not only do most factors point toward disclosure, petitioner
has failed to make any showing why the factors that might support
confidentiality have any weight in this case.
Although the trial court was in error in concluding that no
investigatory files privilege exists in Vermont, it could have denied relief
on the ground that petitioner has failed to make a sufficient showing to
apply the privilege in this case. Since petitioner has failed to show that
there is no ground for the trial court's action, extraordinary relief is
inappropriate.
Petition for extraordinary relief dismissed.
FOR THE COURT:
Associate Justice
FN1. Petitioner has not claimed that the patient's privilege applies.
See V.R.E. 503.
FN2. Petitioner has noted that the Vermont Access to Public Records Act,
1 V.S.A. { 317(b)(5) has an exception from public disclosure for "dis-
ciplinary investigation" records of a "professional licensing agency."
This exception deals with disclosure to the public generally, not disclosure
in response to discovery in litigation. It does not create a privilege.
See Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1344
(D.C. Cir. 1984); Loran, Information Disclosure in Civil Actions: The
Freedom of Information Act and Federal Discovery Rules, 49 Geo. Wash. L.
Rev. 843, 849 (1981).
FN3. If there is a single difference between our view of this case and
that espoused by the dissent, it lies in the nature of our role in
extraordinary review. Under Ley v. Dall and State v. Forte, we are not
applying our normal abuse of discretion standard. Petitioner is not
entitled to relief simply by showing that the trial court failed to
recognize the privilege, and this is not an appeal of the trial court order.
Using the terminology of the dissent, there is here no "case" to remand; we
either grant extraordinary relief or deny it.
FN4. We must rely upon petitioner's complaint and accompanying material in
acting upon the complaint. If petitioner concludes, based on this opinion,
that a further showing would result in favorable action in the trial court
in whole or in part, he is free to renew his motion to quash. We are
confident that the trial court will act in accordance with this opinion.
FN5. The privilege sought by petitioner must be invoked by the head of
the agency that has control over the matter. See, e.g., United States v.
O'Neill, 619 F.2d 222, 226 (3d Cir. 1980) (relying on similar rule for
privilege for state and military secrets developed in United States v.
Reynolds, 345 U.S. 1, 7-8 (1953)); Association for Women in Science v.
Califano, 566 F.2d 339, 347-48 (D.C. Cir. 1977); AgriVest Partnership v.
Central Iowa Production Credit Ass'n, 373 N.W.2d 479, 486 (Iowa 1985). The
purpose of the requirement, in part, is to ensure that the agency head has
considered the documents involved and developed "'precise and certain
reasons for preserving' the confidentiality of the communications."
O'Neill, 619 F.2d at 226 (quoting Smith v. Federal Trade Comm'n, 403 F. Supp. 1000, 1016 (D. Del. 1975)). It is, of course, the privilege of the
agency if it chooses to invoke it.
The only interest of the Secretary of State in the records involved in
this case is that he is the custodian of the records of licensing boards as
an "administrative service" to these boards that includes "maintenance of
current files and furnishing secretarial service." 3 V.S.A. { 114(a). In
fact, the Vermont State Board of Nursing has a chairperson, 26 V.S.A. {
1574(1), and an executive officer. See 26 V.S.A. { 1575(a). The executive
officer has the power to compel the attendance of witnesses at Board hear-
ings by subpoena. See 26 V.S.A. { 1582(b)(4). We have no idea what the
views of the Board or its executive officer are with respect to the dis-
closure of the records in controversy. The Board may believe that all or
part of the records involved in this case are properly public or that
disclosure to an affected litigant is consistent with the purpose of the
Board to "safeguard the life and health of the people of this state." 26
V.S.A. { 1571. In fact, the affidavit of the Secretary of State in this
case indicates that the State Nursing Board proceeding was triggered by an
"oral complaint" to the Board. 26 V.S.A. { 1582(b)(8) makes a record of a
complaint "part of the permanent public record" of proceedings of the Board.
FN6. On this issue, petitioner relies primarily on McClain v. College
Hosp., 99 N.J. 346, 363, 492 A.2d 991, 1000 (1985), a licensing board case.
McClain is distinguishable because it is based on the applicability of
right-to-know or freedom-of-information laws, a rationale not applicable
here. See note 2, supra. It also involves interagency opinions or memo-
randa, a different privilege issue than that present here. Further, we note
that New Jersey has adopted an "official information" privilege as a rule of
evidence. See N.J.R.E. 32 (codified as 2A N.J.S.A. { 84A-27).
FN7. As noted earlier, the statements of the one nurse who has reason not
to be candid, the defendant in the underlying case, were protected from
disclosure by the trial court.
------------------------------------------------------------------------------
Concurring and Dissenting
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.
No. 89-484
Office of the Secretary of State Supreme Court
v. Original Jurisdiction
Windham Superior Court and
Barbara and Gerald Wilkinsen January Term, 1990
John H. Chase, Office of the Secretary of State, Montpelier, for petitioner
Thomas Hayes of Miller, Cleary & Faignant, Ltd. Rutland, for Denise Snyder
Otis & Brooks, P.C., Montpelier, for respondents Wilkinsen
PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
PECK, J., concurring and dissenting. The majority concedes that a
privilege for investigative files exists, at least theoretically, in
Vermont, and on that point I am in complete agreement. Presumably, that
privilege will be recognized hereafter on a case-by-case basis, with the
majority opinion providing the guiding standards under which trial courts
will weigh claims of the investigatory files privilege.
Since this matter is before us as a petition for extraordinary relief,
raising the central issue of the existence of the privilege, the limited
nature of our role would suggest that we provide the answer and then remand
the case for appropriate action by the trial court, based on the announce-
ment of our holding and the tests to be applied by the court in determining
the validity of this particular claim. But the majority, for reasons that
are not articulated, goes on to decide the merits of this petitioner's claim
to the privilege, on the basis of an essentially barren factual record,
without giving the parties an opportunity to make their threshold showings
and without allowing the trial court, on the basis of those showings, to
weigh the competing claims of privilege and disclosure and reach a decision
-- which is what trial courts are supposed to do.
The decision will cloud the roles of this Court and trial courts in
future cases in which this privilege is asserted, and will assuredly invite
other litigants to look to us to find facts and order dispositions in
future cases of all kinds that arrive here for legal guidance only. I
therefore dissent.
I.
Let me begin, as I think we must in all cases where a new privilege is
asserted, with a review of the specific subject matter before us.
Medical records, including those which derive from a governmental
investigatory source, are of a peculiarly sensitive nature to the extent
they may relate to doctors, nurses and other technicians on the one hand and
patient or former patients on the other, who have no relation whatever to
litigation in which one of the parties seeks disclosure. It is difficult to
imagine many more frightening situations in which the privacy interests of
the latter class may be subject to public exposure, without their knowledge
or any opportunity to be heard in protest should they wish to do so.
In State v. Kirchoff, ___ Vt. ___, 587 A.2d 988 (1991), this Court, as
it was constituted for purposes of hearing that case, extended the so-called
right to privacy to the most vicious of criminals, even where it was
necessary to expand the Vermont Constitution to do so, and in a manner not
recognized under the United States Constitution, or the constitutions of the
great majority of our sister states. Yet in this case, the same majority
shows not the slightest concern for the privacy of individuals who are
innocent of any possible culpability in the matter sub judice. The opinion
pays lip-service to this concern, but when it indulges in its own
factfindings, a function reserved exclusively to trial courts, postulates
hypothetical situations, and draws its own conclusions without the benefit
of facts from below or requiring a showing of need, the shallowness of the
concern is manifest.
II.
Turning to my specific grounds for dissent, the majority writes as if
the central issue in this case were the trial court's reluctance to conduct
an in camera inspection, when, in fact, the heart of the case centers on
whether there is a privilege for investigatory files, and whether
petitioner has met the standards for asserting that privilege.
But I will begin on the majority's terms, with the in camera
inspection. The trial court declined to conduct an in camera inspection
because it concluded, contrary to the unanimous views of this Court, that
there is no such thing as an investigatory files privilege. The court never
considered the Wigmore or Frankenhauser criteria because it never got to
them. If the trial court had recognized the existence of an investigatory
privilege, the court would have gone on to consider whether or not such a
showing had been made, using any appropriate fact-finding process, including
an in camera inspection, if necessary, to aid the court in weighing the
validity of the privilege claim in light of the dozen or more criteria set
forth in the majority opinion.
My main point is that trial courts are uniquely positioned to make
initial factual findings, and appellate courts are notoriously bad at doing
so. This case is a perfect illustration of the point. The majority does
not review a determination as to whether the investigatory privilege should
be applied, based on the merits of the parties' respective showings under
the applicable criteria (e.g., Frankenhauser), because there were no
showings. There was no factual record. Instead, this Court undertakes the
Frankenhauser analysis by itself, without the benefit of a trial record,
and, needless to say, without the benefit of its own in camera inspection.
The majority states:
We recognize that the showing that petitioner must make
to get to an in camera inspection is less than the
showing he must make to prevail on his motion to quash.
It is important, however, to insist that petitioner meet
a reasonable threshold before the court must make the
inspection.
No court need, or should, conduct an in camera inspection without a proper
showing, but the majority errs in concluding that the degree of showing is
always the same. The main point is that the trial court has never had a
chance to decide whether petitioner has met his threshold. The majority
treats the case as if there had been a full hearing below, with a full
evidentiary record. Lacking that record, the majority's own factfinding
smacks of the crystal ball.
Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336 (D.C.
Cir. 1984), cited by the majority, is an excellent short treatise on what a
party asserting the privilege must do to prevail. In that case a party in a
civil lawsuit arising out of dramatic fluctuations in the price of silver
subpoenaed investigatory records of the Commodities Future Trading
Commission (CFTC). The Court of Appeals confirmed the privilege claimed by
the CFTC. (FN1) But the court went on to conclude that "the existence of a
qualified law-enforcement investigatory files privilege as to all of the
subpoenaed documents had not been sufficiently established by CFTC so as to
support wholesale and final rejection of Friedman's motion to compel
compliance." Id. at 1341.
Allow me quote at length -- the court's words could well be mine in
this case, mutatis mutandis -- from what then followed in Friedman:
CFTC's attorney in the district court had suggested
disclosure would reveal law enforcement techniques and
sources: disclose strategy, procedures, and direction of
the investigation, forewarn suspects, deter witnesses
from providing candid testimony, invite others to seek
discovery. However, the files had not been examined for
this purpose by responsible members or officers of CFTC.
No specific documents or classes of documents had been
identified.
Until the claim of privilege has been presented to a
district court with appropriate deliberation and pre-
cision and the duty of the demanding party to show his
or her need for disclosure has thus been triggered, and
until that duty has then been discharge by the demanding
party, the district court is not equipped to engage in
the task of identifying and weighing the competing
interests. When, as here, the privilege claimed is
qualified, not absolute, the process of identification
and weighing cannot be avoided.
Id. at 1342 (emphasis supplied). The question always before the trial court
is whether the party asserting the privilege has provided "a deliberate and
reasonably specific delineation of the claim," id. at 1343, not whether the
party asserting the privilege has met the threshold burden of justifying an
in camera inspection. Such inspection is simply one of the factfinding
devices the court can undertake in pursuing the "task of identifying and
weighing the competing interests." Id. at 1342. (FN2)
The "proper showing" required before a court will order an in camera
inspection will depend on the circumstances of the case, particularly
whether the party asserting the privilege has made the initial demonstration
of specificity and inspection is "appropriate." Id. at 1344. The threshold
showing by the asserting party, not the in camera inspection itself, is the
issue, (FN3) The judgment call on inspection is initially the trial court's, as
is the initial judgment as to whether the claims of privilege outweigh the
need for the information, under the several-pronged test that the majority
and I agree should be applied. The process we set forth in Killington as to
the closely related executive privilege will, with appropriate modifi-
cations, serve to guide courts in weighing the claim of privilege against a
discovery demand by a litigant. A trial court should order in camera
inspection of the materials sought and should try to balance the interests
with an eye to the specific needs of the litigant and the interest in
confidentiality attendant to the particular board or body involved. The
Supreme Court of California noted some useful principles in Shepherd v.
Superior Court, 17 Cal. 2d 107, 126, 550 P.2d 161, 171-72, 130 Cal. Rptr. 257, 267-68 (1976):
Implicit in each assessment is a consideration of
consequences -- i.e., the consequences to the litigant
of nondisclosure, and the consequences to the public of
disclosure. The consideration of consequences to the
litigant will involve matters . . . including the
importance of the material sought to the fair presen-
tation of the litigant's case, the availability of the
material to the litigant by other means, and the effect-
iveness and relative difficulty of such other means.
The consideration of the consequences of disclosure to
the public will involve matters relative to the effect
of disclosure upon the integrity of public processes and
procedures.
To this list of principles we might add that the consequences to any
confidential informant and the potential effect on the future investigative
powers of the governmental agency may be an appropriate matter for consider-
ation by the court in balancing the competing interests.
Respondents argue finally that the trial court has already performed a
weighing analysis "based on the types of material the Secretary of State
represented were contained in the file and, in fact, ruled a portion of the
file to be privileged." The trial court record does not support this con-
tention. The court did not conduct an in camera inspection and in fact
specifically stated that "[t]he 'investigative files' privilege does not
exist in the State of Vermont," thereby rendering an inspection
unnecessary.
The majority, for reasons that are not apparent, does not choose to
remand this case for the proper application of the balancing of interests,
as was done in Friedman. I am unaware of any case where an appellate court,
upholding the existence of a particular privilege, and concluding that the
trial court either misunderstood or misapplied the privilege, goes on to
balance the interests of the parties before the trial court has had a
chance on remand to evaluate whether a threshold assertion of the privilege
has been made, and if so, whether, or to what extent, the claim is justi-
fied, given the other party's interests in disclosure.
The majority does all of that for itself, on the basis that the
secretary of state has not made any showing, when in fact the court below
preempted any showing by either side (with or without an in camera review)
by declaring that no investigative files privilege exists in Vermont. Some
of the majority's "findings" are clothed as broad, judicially noticeable
truths:
Particularly misdirected [is] the claim that nurses will
not speak candidly if they know that disclosure to liti-
gants is possible. There is no empirical evidence to
support this generalization that nurses, whose profes-
sion is dedicated to patient care, will conceal or
distort information to prevent injured parties from
seeking redress from their employers.
There was no evidence of anything below because there was a ruling that
there was no privilege to address. If petitioner had the opportunity to
make a showing, he might be able to address the privilege relevant to the
nurses concerned with the impact of this disclosure, rather than to
theoretical nurses in a hypothetical time and place.
The court continues with more appellate findings:
Nor do we find weighty the broad and general claim
that investigatory techniques may be disclosed. While
the privilege has been held to be broad enough to
protect against the disclosure of 'newly developed
investigative techniques,' [citation], there is no
specific claim here that disclosure of Board
investigatory methods will be compromised so that nurses
engaging in disciplinary violations will use the
information to prevent disclosure of their actions or to
prevent investigation.
I have no idea what petitioner would be able to demonstrate if asked to make
a detailed showing by the trial court, as is the universal custom in these
cases. The majority might be correct. Maybe not. The point is that the
trial court should make the determination, based upon that part of the
holding over which we have no differences -- the existence of the privilege
and the kinds of criteria that must be considered by the court in deciding
the matter.
I will not trace out all of the majority's findings under the rest of
the Frankenhauser criteria. But it is important to note that the majority
refers to petitioner's failure "to provide us specific information," as if
the trial court had recognized a privilege but failed to weigh competing
interests appropriately.
I should also add that the majority feels as free to find crucial facts
about the needs of respondents for discovery as it does to find facts about
petitioner's lack of a showing of support for the privilege:
The need for discovery materials of this kind, based
in part on the unavailability of alternatives, is
particularly strong where respondents have sued an
employer of the individual who committed the alleged
tortious acts.
The Court even concludes, before the fact, that:
[P]etitioner has failed in any way to accommodate the
legitimate needs of the respondents. . . . With the
lack of even minimal cooperation from petitioner, the
paths available to gather the necessary information are
simply too tortuous to be reasonable alternatives to the
disclosure of petitioner's records.
Id. At this stage of the proceeding, with a scant record below, I am
unwilling to pass judgment on what is feasible or necessary for respondents
or reasonable for petitioners. Even more importantly, the trial court can,
and in difficult or complex cases definitely should, frame detailed orders
that deal with the parties' impasse and reach a result that is as fair as
possible to both sides. As the court said in King v. Conde:
The parties and the court should consider carefully the
benefits and costs of a properly designed protective
order. "Routinely" issuing protective orders . . . will
not necessarily promote justice or the proper balance of
interests; in particular cases, the court may find them
an effective way to permit discovery without undermining
law enforcement.
121 F.R.D. at 190. Respondents may or may not be able to demonstrate that
the files in petitioner's control are the sole source of the names of
witnesses or of relevant evidence, in which case petitioner's prima facie
showing of the need for confidentiality might prevail. If petitioner's
concern is over opinions or conclusions within the file, it may be possible
to include only some parts of the file and even to redact documents in
question to eliminate materials that might encroach on a demonstrated need
for confidentiality. By acting as trial court here, the majority cuts off
an important trial court function and stanches the flexibility and
practicality that should accompany court orders resulting from claims of
privilege.
III.
I would remand this matter to the trial court for proper consideration
and disposition. The majority recognizes the privilege, but goes on to
decide the case here, leaving little practical guidance to judges
considering this privilege beyond stating the Frankenhauser standards. I
too am concerned about the possible misuse of this privilege, and though I
dissent from the majority's decision, I must go further than the majority
has done in stating the limited nature of this very narrow privilege.
First, the propensity to justify the unqualified closure of government
files by the style of the label on the front of the file is particularly
troublesome. Bristol-Myers v. F.T.C., 424 F.2d 935, 939 (D.C. Cir.), cert.
denied, 400 U.S. 824, (1970). A board or body may consider much of its
routine business to be "investigatory," and I would warn that we do not
intend that the files be considered automatically privileged by self-serving
labelling. But when "the inquiry departs from the routine and focuses with
special intensity upon a particular party, an investigation is under way."
Center for National Policy Review on Race & Urban Issues v. Weinberger, 502 F.2d 370, 373 (D.C. Cir. 1974).
I think we ought to make much clearer that we reject the rationale
adopted in some cases that the "invasion of the administrative process"
alone necessarily gives rise to the nondisclosure privilege. Farrell v.
Piedmont Aviation, Inc., 50 F.R.D. 385, 386 (W.D.N.C. 1969). The notion
that an agency may resist a claim to information, based solely on the fact
that its administrative process would be inconvenienced or simply because
some aspect of its functioning is exposed to public view, should have
vanished long ago.
Thus, I would add to our holding that the qualified privilege for
administrative investigatory files or reports prevails over a litigant's
discovery request only when a true need for the requested information has
not been demonstrated and the interest of the litigant is less than the
government interest in secrecy.
Respondents are correct that exceptions within the Vermont Access to
Public Records statute, 1 V.S.A. Ch. 5, subchapter 3, specifically the
exception in 1 V.S.A. { 317(b)(5) for "records . . . compiled in the course
of a criminal or disciplinary investigation by any police or professional
licensing agency," do not control the outcome of a discovery request under
V.R.C.P. 26. See Friedman, 738 F.2d at 1344; J. Loran, Information
Disclosure in Civil Actions: The Freedom of Information Act and Federal
Discovery Rules, 49 Geo. Wash. L. Rev. 843, 849 (1981). As the Friedman
Court stated:
In the discovery context, when qualified privilege is
properly raised, the litigant's need is a key factor.
Whether the information is disclosed depends on the
relative weight of the claimant's need and the
government's interest in confidentiality. It is unsound
to equate the FOIA [federal Freedom of Information Act]
exemptions and similar discovery privileges.
738 F.2d at 1344 (citations omitted). However, exceptions within the Access
to Public Records statute can guide the Court in appraising public policy
concerns and weighing those concerns together with the needs of litigants in
the discovery process, which concerns are no less a vital aspect of public
policy. Statutory exemptions may be based on "values entitled to weighty
consideration." Note, Discovery of Government Documents and the Official
Information Privilege, 76 Colum. L. Rev. 142, 153 (1976); see McClain v.
College Hospital, 99 N.J. 346, 357, 492 A.2d 991, 996 (1985); see also
Advisory Committee Notes, Rule 509, Proposed Federal Rules of Evidence,
Revised 1971 Draft, 56 F.R.D. 183, 253 (1972) ("[T]he exceptions [to the
Freedom of Information Act] are based on values obviously entitled to
weighty consideration in formulating rules of evidentiary privilege.").
As with any like privilege, the important determination is not that it
exists, but rather in the careful balancing of the interests of government
and those of the litigant seeking discovery. Like all privileges, this
privilege may sometimes result in the suppression of truth. Grodjesk v.
Faghani, 104 N.J. 89, 96, 514 A.2d 1328, 1331 (1986). Consequently, the
most careful balancing of competing interests is required on a case-by-case
basis.
The task of evaluation of the materials in the present case should not
be a complicated one. The fact that the investigation by the Board was not
criminal in nature may impact on the need of the petitioner not to reveal
its investigative methodology. Cf. Reinstein v. Police Commissioner of
Boston, 378 Mass. 281, 291, 391 N.E.2d 881, 887 (1979) ("Although '[t]here
is no clear distinction between investigative reports and material that,
despite occasionally alerting the administrator to violations of the law, is
acquired essentially as a matter of routine,' still the distinction is taken
lest the [investigative] exemption 'swallow[] up the Act.'") (citations
omitted).
In sum, I believe the majority is correct in acknowledging the
existence of a privilege for investigatory records, but this Court ought to
remand and allow the trial court to do its work.
I am authorized to say that Justice Gibson joins in this opinion,
except for part I.
__________________________________
Associate Justice
FN1. The court said on this point:
There surely is such a thing as a qualified
common-law privilege, within the meaning of Fed.
R. Civ. P. 26(b), for law-enforcement
investigatory files.
738 F.2d at 1341. Other federal and state courts have recognized a similar
qualified privilege for investigations conducted by boards and bodies, even
though possible criminal prosecution may not be the reason for the investi-
gation. See, e.g., Center for National Policy Review on Race & Urban Issues
v. Weinberger, 502 F.2d 370, 373 (D.C. Cir. 1974); Bristol-Myers Co. v.
F.T.C., 424 F.2d 935, 939 (D.C. Cir.), cert. denied, 400 U.S. 824 (1970);
Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 290, 391 N.E.2d 881, 886 (1979); McClain v. College Hospital, 99 N.J. 346, 357, 492 A.2d 991, 996 (1985); Beck v. Bluestein, 194 N.J. Super. 247, 257, 262-63, 476 A.2d 842, 849, 851 (1984).
FN2. One of my main concerns is that the majority establishes a separate
threshold showing required to justify conducting in camera inspections,
when, in fact, the showing should focus on the need for the privilege, with
the in camera inspection serving merely as a tool which the court may or may
not use.
The majority's citation of United States v. Zolin, 491 U.S. 554
(1989) to support the propostion that in camera inspections are "extra-
ordinary events" is misleading at best. The issue in that case was not
whether the court should cooperate with one asserting a privilege and
seeking in camera inspection to help persuade the court, but whether, on the
contrary, such review in certain cases would be detrimental to the rights of
a party asserting a privilege and opposing in camera review. Speaking of
the attorney-client privilege, the Court said:
A blanket rule allowing in camera review as a tool
for determining the applicability of the crime-
fraud exception, as [United States v. Reynolds,
345 U.S. 1 (1945)] suggests, would place the
policy of protecting open and legitimate
dislosure between attorneys and clients at undue
risk.
* * * *
There is no reason to permit opponents of the
privilege to engage in groundless fishing
expeditions, with the district courts as their
unwitting (and perhaps unwilling) agents.
491 U.S. at 571; see also Kerr v. United States District Court, 426 U.S. 394, 406 (1976) (stating that "in camera review is a highly appropriate and
useful means of dealing with claims of governmental privilege").
FN3. This point is well stated in King v. Conde, 121 F.R.D. 180, 189
(E.D.N.Y. 1988), which was cited by the majority. The editor's precis of
the case at the beginning of the report suggests that a "showing of need
must be made by police before placing burden of in camera inspection on
magistrate." Id. at 181. What the case actually holds is that accompanying
the assertion of a privilege must be "a declaration or affidavit, under
oath," stating "how the materials at issue have been generated or collected;
how they have been kept confidential; what specific interests (e.g., of the
police officers, of law enforcement, or of public concern) would be injured
by disclosure . . . and the projected severity of each such injury." Id. at
189. Without an initial showing, of course, the court would simply order
disclosure. But once the formal threshold is met -- if the assertion is not
frivolous -- the trial court's real work begins:
If the court finds that defendant has not satis-
fied its threshold burdens, direct disclosure is
in order. If the threshold burdens are met, the
court may then review the materials at issue in
camera and decide which, if any, to withhold from
disclosure.
Id. at 190. The court goes on to discuss the value of redaction by the
judge in balancing the interests of privilege and disclosure. Id.
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