Opinion
HHDCV156059776S
01-17-2018
Jeffrey LOVE et al. v. Neil MOYNIHAN, M.D. et al.
UNPUBLISHED OPINION
OPINION
CESAR A. NOBLE, J.
General Statutes § 17a-28, which establishes the confidentiality of records related to the child protection activities of the Department of Children and Families (DCF), represents " a broad legislative declaration of confidentiality." State v. Kulmac, 230 Conn. 43, 57, 644 A.2d 887, 895 (1994). The issue before the court is whether the statute permits the disclosure of the confidential records for purpose of civil discovery in this medical malpractice wrongful death suit against the defendants, Neil Moynihan, M.D, an emergency room physician who treated the decedent, and Northeast Emergency Medicine Specialists, LLC, alleged to be vicariously liable for Dr. Moynihan’s negligence. The court concludes that it does not.
Moynihan and Northeast Emergency Medicine Specialists, LLC, are collectively referred to herein as the defendants.
The defendants have issued a subpoena duces tecum to the keeper of records for DCF commanding the production of its entire file related to all investigative reports related to Teresa Love, the plaintiff’s decedent, and Jeffrey Love, the plaintiff, administrator of her estate. The defendants assert they are entitled to DCF records related to two DCF investigations into the alleged drug use of the plaintiff’s decedent, and the safety of her children. The Commissioner of the DCF, Joette Katz (commissioner), has filed a motion to quash the defendants’ subpoena duces tecum on the grounds that § 17a-28 prevents the disclosure of the records to the defendants. The plaintiff does not argue the records are not reasonably calculated to lead to the discovery of admissible evidence; see Practice Book § 13-2; rather, he objects on the grounds that because he has not, in either his representative or individual capacity, consented to the release of the records, § 17a-28 provides no other basis for the release of the records.
Section 17a-28 mandates that records maintained by DCF in connection with, inter alia, its child protection activities, be confidential and shall not be disclosed unless consent is obtained from an individual named in an investigative record or an enumerated exception is applicable. The legislature has made the policy decision that the " embarrassment, stigmatization and emotional harm that can result from the mere disclosure" of such activity warrants such a high degree of confidentiality that criminal sanctions are imposed for violations. Abreu v. Leone, 120 Conn.App. 390, 402, 992 A.2d 331 (2010). Exceptions to the confidentiality of the records are generally enumerated in sub-sections (g) and (h) of the statute. The defendants claim to entitlement of the records rests on the exception provided by § 17a-17(h)(16) which provides: " The department may, subject to subsections (b) and (c) of this section, disclose records without the consent of the person who is the subject of the record, to ... (16) A judge of a court of competent jurisdiction whenever an employee of the department is subpoenaed and ordered to testify about such records for purposes of in camera inspection to determine if such records may be disclosed pursuant to this section if (A) the court has ordered that such records be provided to the court; or (B) a party to the proceeding has issued a subpoena for such records." (Emphasis added.)
Section 17a-28 provides in relevant part that: " Notwithstanding the provisions of Section 1-210, 1-211 or 1-213, records maintained by the department shall be confidential and shall not be disclosed, unless the department receives written consent from the person or as provided in this Section." § 17a-28(b).
Sub-section (g) of the statute identifies recipients of the records to whom the department is required to provide records. The identification of these recipients in § 17-28(g) is preceded by the following language: " The department shall disclose records, subject to subsections (b) and (c) of this section, without the consent of the person who is the subject of the record, to [enumerated recipients]." (Emphasis added.)
Sub-section (h) identifies other recipients to whom the department may, presumably in the exercise of its discretion, disclose the records. The preface to § 17a-28(h) reads: " The department may, subject to subsections (b) and (c) of this section, disclose records without the consent of the person who is the subject of the record, to: [enumerated recipients]." (Emphasis added.)
Section 17a-28 was amended in 2013. Pertinently, Public Act 13-40, effective October 1, 2013, modified sub-section (h)(17) of the pre-2013 version of the statute which provided: " The department may, subject to subsections (b) and (c) of this section, disclose records without the consent of the person who is the subject of the record to ... (17) A court of competent jurisdiction whenever an employee of the department is subpoenaed and ordered to testify about such records." The change to sub-section (h)(17) effected by Public Act 13-40 was codified in the current version of § 17a-28(h)(16).
Judges of the Superior Court who considered pre-2013 versions of § 17a-28 have concluded that none of the exceptions to the proscription of disclosure of DCF records applied to civil actions not otherwise triggering an exception. Bemis v. Bemis, Superior Court, judicial district of New London, Docket No. 075004728, 2008 WL 2930560 (July 8, 2008, Martin, J.); Losacano v. Town of Plainfield, Superior Court, judicial district of Windham, Docket No 010067834S, 2003 WL 947605 (February 11, 2003, Potter, J.) , decision clarified, 2003 WL 21321873 (May 23, 2003) ; Giesing v. Blefeld, Superior Court, judicial district of New London, Docket No. 549307, 2001 WL 56437, at *1 (Jan. 4, 2001, Hendel, J.) (28 Conn.L.Rptr. 581); In re James T., Superior Court, Child Protection Session at Middletown, 1997 WL 576593, at *1 (August 18, 1997, Foley, J.) 20 Conn.L.Rptr. 386. In the view of the defendants, modifications to § 17a-28 in 2013 compel the conclusion that prior interpretations of the statute prohibiting disclosure of DCF records in the course of discovery in a civil action are no longer applicable.
The court is not persuaded by the defendants’ argument that the 2013 amendment to § 17a-28b operated to craft a new exception to the statutes confidentiality provisions for records potentially, even likely, relevant to the defense of personal injury cases. As noted by the Appellate Court, " § 17a-28 contains detailed exceptions to the proscription of disclosure of information created or obtained in connection with the department’s child protection activities." Abreu v. Leone, supra, 120 Conn.App. 403. " [E]xceptions to statutes are to be strictly construed with doubts resolved in favor of the general rule rather than the exception ... [W]here express exceptions are made, the legal presumption is that the legislature did not intend to save other cases from the operation of the statute." Id. 403-04. The lack of express language permitting a more general disclosure of investigative records in all civil actions compels the conclusion that the records are not available to the defendants in the present case. The mechanism added by Public Act 13-40 for an in camera review may appropriately be considered to advance the goals of assuring that an enumerated exception is applicable and that the breadth of the disclosure is limited to those records which pertain to the approved recipient.
The plaintiff’s complaint alleges the plaintiff’s decedent was deprived of the enjoyment of her life and its activities including the ability to earn wages. Further, the plaintiff claims loss of consortium for, inter alia, child care assistance. Records documenting drug abuse and potential child neglect are otherwise discoverable as relevant.
For the above reasons the commissioner’s motion to quash is granted.