Opinion
No. KNL CV 04 4000305
November 27, 2007
MEMORANDUM OF DECISION RE MOTIONS TO SEAL (#127 #127.50)
FACTS
On July 30, 2004, the plaintiff filed an appeal from the final decision rendered by the State of Connecticut Department of Children and Families upholding findings of physical abuse by the plaintiff against his step-daughter. Therein, the plaintiff alleges that the final decision of the Department of Children and Families was in violation of due process and/or violated his right of fundamental fairness in administrative proceedings, affected by error of law, was in excess of the statutory authority of the agency, made upon unlawful procedure, clearly erroneous in view of the substantial evidence on the record, arbitrary and capricious, characterized by abuse of discretion and/or clearly an unwarranted exercise of discretion.
On October 10, 2006, the parties filed a stipulation in which they agreed to settle the controversy in the appeal, subject to certain terms and conditions. The stipulation was subsequently accepted by the court. On July 6, 2007, the plaintiff filed unopposed motions to seal the file and the record.
DISCUSSION A. Effect of Agreement by the Parties to Request Sealing
It is important to note at the outset of this discussion that while the parties in this case have jointly agreed to request sealing of certain information, it does not extinguish the court's supervisory authority over documents in its custody and control. Practice Book § 11-20A(c) provides in relevant part: "An agreement of the parties to seal or limit the disclosure of documents on file with the court or filed in connection with a court proceeding shall not constitute a sufficient basis for the issuance of such an order." Furthermore, in CT Page 20336 Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 216 (2005), our Supreme Court stated: "[w]ith respect to a court's supervisory authority over documents in its custody and control, that power is not forfeited merely because the parties have agreed to a settlement and withdrawal of the case."
B. Presumption of Public Availability of Court Records
There is a presumption that all documents filed with the court be available to the public based on a strong common-law tradition and Judicial Branch policy favoring transparency in the legal process. Soroka v. Household Automotive Finance Corp., Superior Court, judicial district of New Haven, Docket No. CV 04 4000300 (April 30, 2007, Silbert, J.) ( 43 Conn. L. Rptr. 481). Just "[a]s with other branches of government, the bright line cast upon the judicial process by public observation diminishes the possibilities for injustice, incompetence, perjury, and fraud. Furthermore, the very openness of the process should provide the public with a more complete understanding of the judicial system and a better perception of its fairness." Littlejohn v. Bic Corp., 851 F.2d 673, 678 (3d Cir. 1988); see Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 276 Conn. 216. Accordingly, documents may only be placed under seal in limited circumstances. Keeping in mind the policy favoring public availability of court-filed documents, the court will analyze the present motions in accordance with the procedural rules of the Practice Book and the provisions of the General Statutes regarding confidentiality.
C. Practice Book § 11-20A: Sealing Files or Limiting Disclosure of Documents in Civil Cases
"Practice Book § 11-20A provides the procedure courts must follow when considering both motions to seal and motions to permit parties to proceed anonymously." Vargas v. Doe, 96 Conn.App. 399, 409, 900 A.2d 525 (2006). "A court may order certain filed material to be sealed or limited in disclosure only if it concludes that such an order is necessary to preserve an interest which overrides the public's interest in viewing such materials." O'Brien v. Stolt-Nielson Transp. Group, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. X08 CV02 0190051 (April 2, 2004, Adams, J.); see Practice Book § 11-20A(c). Practice Book § 11-20A indicates that courts are not to seal information simply because the parties involved wish to do so. The court need only seal that information which is likely to cause harm to any of the parties or those persons involved if left unsealed. There must be an overarching fear that the information being released will be misused and lead to harm, and this factor must outweigh the right of the public to have access to court records. Furthermore, if sealing is required, it should be accomplished on as narrow a basis as possible. See Soroka v. Household Automotive Finance Corp., supra, 43 Conn. L. Rptr. 481; Practice Book § 11-20A(f)(2).
D. Practice Book § 11-20A(h)(1): Pseudonyms
Practice Book § 11-20A(h)(1) provides in relevant part: "Pseudonyms may be used in place of the name of a party or parties . . . only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public's interest in knowing the name of the party or parties . . . [A]ny such order shall be no broader than necessary to protect such overriding interest."
"The most compelling situations [for granting a motion to use pseudonyms] involve matters which are highly sensitive, such as social stigmatization, real danger of physical harm, or where the injury litigated against would occur as a result of the disclosure of the [party's or person's] identity . . . There must be a strong social interest in concealing the identity of the [party or person]." (Internal quotation marks omitted.) Doe v. Diocese Corp., 43 Conn.Sup. 152, 159, 647 A.2d 1067, 1071 (1994) ( 11 Conn. L. Rptr. 519).
E. Identification of the Parents or Others, Through Whom the Identities of the Children May be Ascertained
In Edmund v. Department of Children and Families, Superior Court, judicial district of Tolland at Rockville, Docket No. T11-CP 06 012428 (May 29, 2007, Graziani, J.), the plaintiffs appealed the final decision of a hearing by DCF affirming the substantiation of the allegations that the plaintiffs physically neglected their minor child. Here, "[i]n accordance with the spirit and intent of General Statutes §§ 17a-28, 46b-142(b) and to protect the privacy rights of the child[ren] involved in this matter, the court decline[d] to identify the parents or others through whom the identity of the children might be ascertained." See Joyce v. Ragalia, Superior Court, judicial district of Waterbury, Docket No. CV 02 0174122 (April 15, 2005, Moraghan, J.) (in an appeal from a post-hearing decision by the DCF regarding substantiation of child abuse the court declined to identify the child or others, i.e., the child's mother, father, siblings, and school, through whom the child's identity may be ascertained to protect the child's privacy interests, citing General Statutes §§ 17a-28 and 46b-142).
F. Consideration of Certain Statutes in Conjunction with the Motions to Seal
In determining the sealing of documents in this case the court must consider certain statutes regarding the confidentiality of a minor's identity, the disclosure of records from the Department of Children and Families, and the disclosure of records from a licensed social worker, as well as the sensitivity issues surrounding allegations of physical abuse upon a child. See Doe v. Lasaga, Superior Court, judicial district of New Haven, Docket No. CV 99 0430858 (March 1, 2004, Arnold, J.) ( 36 Conn. L. Rptr. 751).
"General Statutes § 17a-101k(a) provides for the confidentiality of a registry of reports regarding incidents of child abuse. The disclosure of said reports are subject to statutes regarding their use. Access and use of this information shall conform to the requirements of federal law or regulations . . . General Statutes § 17a-28 also sets forth the requirement of confidentiality of records of the Department of Children and Families and the limits regarding access to such records. Except as authorized by these provisions, the records are not to be disclosed without the consent of the person or his legal guardian. The interest of the public in these reports do not outweigh the individual's right to privacy." Doe v. Lasaga, supra, 36 Conn. L. Rptr. 751. Under § 17a-28(a)(5), "records" are defined as "information created or obtained in connection with the department's child protection activities or activities related to a child while in the care or custody of the department, including information in the registry of reports to be maintained by the commissioner pursuant to section 17a-101k, provided records which are not created by the department are not subject to disclosure, except as provided pursuant to [other subsections]." Thus, in accordance with the spirit and intent of General Statutes § 17a-28 and to protect the privacy rights of the minors involved in these matters, the court may decide to seal certain documents filed with the court and submitted with the record.
Furthermore, a court may decide to seal certain documents filed with the court in order to protect confidential communications between a social worker and a client. "Disclosure of confidential communications between social worker and person consulting such social worker is prohibited subject to certain exceptions, as set forth in General Statutes § 52-146q." Doe v. Lasaga, supra, 36 Conn. L. Rptr. 751.
CONCLUSION
In the present case, the file includes certain documents containing statements of the alleged victim and a witness who were minors at the time of the alleged incident of physical abuse. Additionally, certain motions, pleadings, and supporting memoranda refer and/or substantially quote from these documents. The file also contains documents regarding confidential communications between a social worker and a client.
The court hereby determines that the interest of confidentiality regarding DCF and social worker records together with the potential psychological injury to the minors overrides the public interest in full access to this file. The court, however, does not agree that the file should be sealed in its entirety, as requested by the plaintiff's counsel and the assistant attorney general of the State of Connecticut. Rather, the sealing should be accomplished on as narrow a basis as possible. Accordingly, the court finds that the confidentiality rights of the minors, in conjunction with the public's interest in access to these materials, can be accommodated by sealing only those particular documents deemed confidential and by using pseudonyms for the minors and for the minors' mother and father/stepfather, rather than sealing the entire file. The use of pseudonyms for the parents is necessary since the identities of the minors are easily ascertained through the parents as the plaintiff has only one daughter with his wife, and his wife has only one daughter by a prior marriage. This determination has been made after careful consideration of the reasonable alternatives, and is specifically formulated to be no broader than necessary to protect the overriding interests of the minors.
Based on the aforementioned, the court hereby denies/grants the motions to seal the file and record, in part, as follows. The court denies the motion to seal the file in its entirety. The court grants the motion to seal certain documents (confidential DCF records, documents substantially quoting confidential DCF records, documents quoting confidential social worker communications) in the file, pursuant to the intent of General Statutes §§ 17a-28 and 52-146q. The court also finds that pseudonym-status shall be given to the minors and the parents of the minors, including the plaintiff. In regards to the motion to seal the DCF record, the court finds that the record was never formally submitted and/or entered into the record as an exhibit, therefore it shall be returned to the appropriate party, and the court need not rule on the motion to seal the DCF record.
The following documents are to be sealed:
Exhibit A, attached to the plaintiff's Appeal. Entitled: State of Connecticut, Department of Children and Families, Administrative Hearings Unit, Final Decision — Substantiation Hearing Decision date: June 15, 2004.
Memorandum in Support of Plaintiff's Appeal to the Superior Court, dated October 24, 2005 (#115).
Exhibit A, attached to the Memorandum in Support of Plaintiff's Appeal to the Superior Court, dated October 24, 2005 (#115). Entitled: Department of Children and Families, Notification of Investigation Results.
Exhibit C, attached to the Memorandum in Support of Plaintiff's Appeal to the Superior Court, dated October 24, 2005 (#115). Entitled: State of Connecticut, Department of Children and Families, Administrative Hearings Unit, Final Decision — Substantiation Hearing. Decision date: June 15, 2004.
Exhibit A, attached to the plaintiff's Exhibit F of the Memorandum in Support of Plaintiff's Appeal to the Superior Court, dated October 24, 2005 (#115). Entitled:
Department of Children and Families, Notification of Investigation Results.
Defendant's Memorandum of Law in Opposition to Plaintiff's Administrative Appeal, dated May 22, 2006 (#120).
Exhibit A, attached to the Defendant's Memorandum of Law in Opposition to Plaintiff's Administrative Appeal, dated May 22, 2006 (#120) (Groton Long Point Police Department Report).
Exhibit B, attached to the Defendant's Memorandum of Law in Opposition to Plaintiff's Administrative Appeal, dated May 22, 2006 (#120). Entitled: State of Connecticut, Department of Children and Families, Investigation Protocol, Data Collection/Reporting Form.
Exhibit C, attached to the Defendant's Memorandum of Law in Opposition to Plaintiff's Administrative Appeal, dated May 22, 2006 (#120). Entitled: Department of Children and Families, Notice of Substantiation Hearing.
Page 3 of the Plaintiff's Application for Leave to Remand (#124), and page 1 of the attached affidavit. (Confidential social worker communications.)
Exhibit A, attached to the Defendant's Memorandum of Law in Opposition to Plaintiff's Motions, dated September 25, 2006. Entitled: State of Connecticut, Department of Children and Families, Administrative Hearings Unit, Final Decision — Substantiation Hearing. Date of Decision: August 1, 2003.
ORDER
The court enters the following order, which shall remain in effect until further order of the court.
1. The case file shall be maintained using pseudonyms for the plaintiff-father/stepfather, mother, and the children/step-children.
2. All court filings shall use pseudonyms John Doe and Jane Doe to refer to the plaintiff-father/stepfather and mother, respectively, and Mary Doe for the plaintiff's child and Sue Doe for the plaintiff's step-child.
3. The clerk shall place the pleadings and all documents in the file which contain the names of the defendant-father/stepfather, mother, and children/stepchildren alleged to have been abused, and place them in a sealed envelope with a notation that it is to be opened only upon further order of the court. These pleadings and documents shall be replaced by the clerk with duplicates substituting the names of the aforementioned with the applicable pseudonyms. The clerk shall also change the name of the file to John Doe v. State of Connecticut, Department of Children and Families.
4. The clerk is further ordered to seal the DCF exhibits and memoranda set forth on pages 7-8 above and communications with the social worker set forth on page 8 above in order to protect confidentiality and non-disclosure requirements pursuant to statutory and common law.