Opinion
HHBCV156028331S
02-07-2017
Earl Walcott v. Department of Children and Families
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Sheila A. Huddleston, Judge.
The plaintiff, Earl Walcott, appeals from the final decision of the Department of Children and Families (department or DCF), substantiating an allegation of sexual abuse and upholding his placement on the department's central registry as a person who poses a risk to children. The plaintiff argues that the department erred in failing to credit his testimony rather than the hearsay statements of a teenaged complainant and in concluding that the complainant's hearsay statements were reliable and probative. He further argues that the department unduly redacted the investigation protocol that documented the department's investigation into the alleged abuse. The department argues, to the contrary, that the plaintiff has failed to meet his burden of showing that the department's decision was not supported by substantial and reliable evidence. It further argues that the redaction of the protocol was in accordance with the law and principles of due process. For the reasons stated below, the court concludes that the plaintiff has not met his burden of proving that the department's factual conclusions were not supported by the weight of substantial evidence on the record. Nor has the plaintiff established that he was denied due process by the limited redaction of information from the investigation protocol. Consequently, the appeal is dismissed.
FACTS AND PROCEDURAL HISTORY
The plaintiff was the pastor of a Seventh-Day Adventist church in New Haven, Connecticut, from May 2003 to December 2008. He then moved to New York to serve as a pastor at another church there.
The complainant, C., and her family were members of the plaintiff's church in New Haven. At some point, C.'s mother and brother engaged in joint counseling sessions with the plaintiff, but the plaintiff terminated those sessions. In 2008, when C. was thirteen years old, her mother took her to the plaintiff for counseling because C. had cut herself. C.'s mother could not recall how many counseling sessions C. had with the plaintiff, but did recall that it was more than one. C.'s counseling sessions with the plaintiff lasted thirty to forty-five minutes and C.'s mother would wait outside in her car during those sessions. C. stated that the sessions lasted for about four weeks, after which C. told her mother she felt better so that she could cease attending the sessions.
In accordance with the spirit and intent of General Statutes § 17a-28, the identities of the complainant and members of her family involved in this administrative appeal are not disclosed.
Around July of 2011, C. disclosed to her mother that the plaintiff had touched her inappropriately during the counseling sessions in 2008. C. also subsequently told L.M., then the minister of her church, who was upset and discouraged her from reporting the plaintiff because the plaintiff's family would not be able to handle the consequences. Eventually C. told a second minister, A.S., who asked her to put her complaint in writing. On January 12, 2012, church employees received a letter from C., dated January 8, 2012, that conveyed her complaint against the plaintiff. The plaintiff was placed on administrative leave from the church on January 12, 2012.
In her letter, C. reported that during her first counseling session with the plaintiff, he had at first prayed with her and discussed her cutting behavior. The plaintiff told her that if she continued to cut her arm she could hurt herself to the point of suicide. Near the end of the session, the plaintiff's gaze made C. feel uncomfortable. He then approached her, put his arm around her, and kissed her neck. Later in the same session, he grabbed her arm, rubbed it, and kissed it. C. did not tell her mother about the plaintiff's conduct because she was scared and speechless.
C. reported that on later occasions the plaintiff continued to take actions to grab her, sometimes putting his hand into the top of her dress, grabbing her bust area, and kissing her. He cautioned her that if she said something, no one would believe her because she was " known as a liar in this church."
After the plaintiff moved to New York, he invited C.'s mother to sing at his new church on several occasions. On one such occasion when C. was with her mother, the plaintiff offered to take C. on a tour of the church. When he was alone with her, he pushed her up against a wall and kissed her. C. pushed him back and ran back to her mother. After that trip, C. did not return to the plaintiff's church when her mother was invited to sing there. She did not tell her mother what had happened at that time.
In her January 8, 2012 letter, C. reported that she told her mother what had happened in 2011, when her mother returned from a trip to Georgia. Her mother told her she believed her but she did not know how to handle the situation. C. further described continuing dreams of the plaintiff hurting her, bad memories, and worrying that someone else could be treated the same way she was treated. After C.'s letter was presented to the church in January 2012, the Northeastern Conference of the Seventh-Day Adventist Church provided C. with counseling to address the harm the plaintiff had caused her.
In January 2013, a new president of the Northeastern Conference of the Seventh-Day Adventist church forwarded a copy of C.'s January 8, 2012 letter to the department, stating that he had been told it had previously been reported to the department but was unable to locate written confirmation of a report. The department then assigned April Millo, an investigative social worker, to investigate the allegations in C.'s letter. Millo contacted C.'s mother, who told her that C. was now attending a Christian boarding school out of state. Her mother said she sent C. to this school because she had been having problems in her school in Connecticut, where she had been threatened to be shot. Millo contacted C.'s school and was eventually able to arrange a telephone interview with C., who had recently turned eighteen years old. Millo attempted to reach C.'s mother on several occasions for an additional interview and sent two letters to her. C.'s mother testified that she received the letters and attempted to contact Millo but could not remember her name and was unable to reach her. The investigation concluded with a substantiation of the sexual abuse and a finding that the plaintiff's name should be placed on the department's central registry of individuals who have been substantiated for child abuse or neglect and who pose a risk to children.
The plaintiff requested an administrative hearing to challenge the substantiation and placement on the registry. Before the hearing, the plaintiff's counsel received a heavily redacted copy of Millo's investigation protocol. Return of Record (ROR), Exhibit 20. The plaintiff's counsel filed a request for an unredacted investigation protocol, to which the department objected. The department stated that it did not object, however, to the hearing officer's in camera review of the unredacted protocol. The hearing officer agreed to conduct an in camera review. She advised the plaintiff that if he objected to her hearing the appeal after conducting that review, the case would be reassigned to a new hearing officer. ROR, Exhibit 13. After conducting her review, the hearing officer ordered the department to provide the plaintiff with a revised redacted protocol in which the only information to be redacted was information concerning C.'s date of birth, information regarding her school, the location of the school, and names of persons contacted at her school. Id. The hearing officer specifically directed the department not to redact an allegation summary listing the Seventh-Day Adventist church as the second perpetrator, the complete response from C.'s mother, and all attempts at contacting the mother. A revised redacted protocol was furnished to the plaintiff in compliance with the hearing officer's order. ROR, Exhibit 17. The plaintiff did not request that a different hearing officer preside over the hearing.
At the substantiation hearing, Millo testified regarding her investigation and reported statements made by C. in her telephone interview. C.'s mother, called as a witness by the plaintiff, testified about C.'s counseling with the plaintiff and C.'s eventual disclosure to her mother of the plaintiff's actions. She testified that she had taken C. for counseling with the plaintiff when C. was thirteen. She could not recall how many counseling sessions C. had attended but it was more than one. She also testified that C. had gone with her to New York on an occasion when she went to sing in the plaintiff's new church. After that trip, C. pleaded with her mother that she did not want to go to the New York church again.
The plaintiff testified that he had counseled C. only once, for about ten minutes before a Sabbath church service, and that he had never inappropriately touched C. He admitted that he had hugged her after praying with her. He further testified that he had counseled with C.'s mother and brother for about a year and had gone to meetings at C.'s brother's school. He testified that he had ended the counseling sessions with C.'s mother and brother after C.'s mother had an outburst at a school meeting that embarrassed him. He testified that he had recommended that C.'s mother and brother continue counseling with someone else.
In a final decision issued on November 20, 2014, the hearing officer specifically found that C.'s mother's testimony and C.'s statements about the plaintiff's conduct were credible. She expressly found the plaintiff's testimony that he had met with C. only once for ten minutes was not credible in light of C.'s mother's testimony that there was more than one counseling session and that the sessions lasted thirty to forty-five minutes. Applying the standards articulated in State v. Merriam, 264 Conn. 617, 639-40, 835 A.2d 895 (2003), the hearing officer found that C.'s hearsay statements were reliable. This appeal followed.
DISCUSSION
This appeal is brought pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § § 4-166 et seq., and in particular, General Statutes § 4-183. " At the outset, it is important to underscore that the scope of judicial review of an administrative agency's decision under § 4-183 is very restricted . . . [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Citation omitted; internal quotation marks omitted.) Hogan v. Dep't of Children & Families, 290 Conn. 545, 560-61, 964 A.2d 1213 (2009). This court may not " retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Id., 561.
General Statutes § 4-183(j) provides: " The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment."
" In determining whether an administrative finding is supported by substantial evidence, the reviewing court must defer to the agency's assessment of credibility of witnesses . . . The reviewing court must take into account contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Internal quotation marks omitted.) Frank v. Dep't of Children & Families, 312 Conn. 393, 411-12, 94 A.3d 588 (2014).
" [A]dministrative tribunals are not strictly bound by the rules of evidence and . . . they may consider evidence which would normally be incompetent in a judicial proceeding, as long as the evidence is reliable and probative." (Internal quotation marks omitted.) Jutkowitz v. Dept. of Health Services, 220 Conn. 86, 107-08, 596 A.2d 374 (1991). There is no prohibition against hearsay evidence in the UAPA. Id.
I
CREDIBILITY
The plaintiff argues that the hearing officer erred in not crediting the plaintiff's own testimony because her basis for disbelieving him was the conflicting testimony of C.'s mother and C.'s hearsay statements as to the number and duration of counseling sessions. C. did not testify at the hearing. C.'s statements were introduced through (1) Millo's testimony and the investigation protocol, (2) C.'s mother's testimony, and (3) the January 8, 2012 letter purportedly written by C. The plaintiff attacks the credibility of each of these sources of information. Each argument will be addressed in turn.
First, the plaintiff argues that Millo never met C. face-to-face and had no way of confirming that she was actually speaking to C. when she interviewed her by telephone. It is undisputed that Millo never met C. in person and that her only direct contact with C. was a single telephone call. However, there is no evidence in the record to suggest that she spoke with someone who was impersonating C. C.'s mother told Millo that C. was attending school in Pennsylvania. Millo then contacted C.'s school, explained her role with the department, and asked to speak with C. The school staff member with whom she spoke said that she would have to get C.'s mother's permission and that she would call Millo back. She subsequently called Millo back and said that C.'s mother had agreed that Millo could interview C. as long as the school staff member was present on speaker phone during the interview. She said that C. was in her office, put the phone on speaker phone, and Millo then conducted the interview. The fact that a school staff member facilitated the interview with the student identified as C. after getting C.'s mother's permission to allow the interview is substantial evidence that the person with whom Millo spoke was C.
Second, the plaintiff argues that C.'s mother is not credible because she never reported C.'s claim to the police. He also argues that C.'s mother had a motive to " fabricate" a claim that the plaintiff acted inappropriately with C. because the plaintiff had previously stopped counseling C.'s mother and brother as a result of an outburst by C.'s mother. These claims are not persuasive. The mother testified that she was shocked by C.'s disclosure and upset with herself because as a victim of abuse herself, she should have known that C. had been abused. ROR, Transcript, p. 85. She also testified that she reported it to the man who was then the pastor of the church she attended, and asked him what to do, because it involved the church. ROR, Transcript, pp. 84-85.
According to the plaintiff's own testimony, C.'s extended family was deeply involved with the New Haven church. ROR, Transcript, pp. 101-08. The plaintiff stopped counseling C.'s mother and brother while he was still their pastor in New Haven, but C.'s mother nevertheless continued to have a cordial relationship with the plaintiff. When the plaintiff was reassigned to the New York church, C.'s mother and her whole family attended his installation in the new church, and C.'s mother sang in the plaintiff's New York church three or four times at his invitation. ROR, Transcript, pp. 108-09. These facts--established through the plaintiff's own testimony--support the testimony of C.'s mother that she relied on the church to deal with the issue and refute the plaintiff's claim that C.'s mother had any motive to fabricate a claim against him.
Third, the plaintiff claims that the January 8, 2012 letter had no " evidentiary value" because Millo never asked C. directly if she had written or signed it. Millo admitted that she did not directly ask C. whether she had written the letter. She testified, however, that she spoke to C. about the referral the department had received regarding the letter C. had written about being sexually abused, and C. did not deny writing the letter. In addition, C.'s mother testified that she had spoken with A.S., another pastor to whom C. had disclosed the plaintiff's abuse. A.S. told her that a woman had brought C. to his house because C. was " really torn up about something." He said C. gave him this information. He told C. to write it down, and he told C.'s mother that he was mandated to report it. ROR, Transcript, p. 89. There is substantial circumstantial evidence that C. wrote the January 8, 2012 letter that was introduced as Exhibit 22 at the hearing.
These arguments were advanced by the plaintiff to support his claim that the hearing officer should have credited his testimony over that of C.'s mother. The plaintiff does not acknowledge, however, that an important element of the testimony of C.'s mother was not hearsay at all but was based on her own personal knowledge. She testified that she took C. to the plaintiff for more than one counseling session and that the counseling sessions lasted thirty to forty-five minutes. The plaintiff testified, to the contrary, that he had only one ten-minute counseling session with C., just before a Sabbath service, and that he never counseled her again. The hearing officer believed C.'s mother rather than the plaintiff as to this important fact. " [I]t is the exclusive province of the trier of fact to make determinations of credibility, crediting some, all, or none of a given witness' testimony . . . Additionally, [a]n administrative agency is not required to believe any witness . . . Questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses . . . We must defer to the trier of fact's assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude." Frank v. Dep't of Children and Families, supra, 312 Conn. at 412. This court, therefore, defers to the hearing officer's determination of the plaintiff's credibility that was made on the basis of her first-hand observation of the plaintiff's testimony and C.'s mother's testimony.
II
RELIABILITY OF C.'S HEARSAY STATEMENTS
In State v. Merriam, supra, 264 Conn. 617, our Supreme Court considered the constitutional requirements for the admission of hearsay evidence in a criminal trial. Under Merriam, " hearsay statements are admissible if (1) the declarant is unavailable to testify, and (2) the statement bears adequate indicia of reliability." Id., 634, quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Analyzing the United States Supreme Court's decision in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), our Supreme Court identified a number of nonexclusive factors that properly relate to whether hearsay statements made by a child witness in a child sexual abuse case are reliable. These include: " (1) the degree of spontaneity inherent in the making of the statements; (2) consistent repetition by the declarant; (3) the declarant's mental state; (4) use of terminology not within the average ken of a child of similar age; and (5) the existence of a motive to fabricate or lack thereof." State v. Merriam, supra, 264 Conn. 639. The plaintiff here has not argued that C. was available to testify. The question here is whether the hearing officer could properly find her hearsay statements to be reliable. He argues that C.'s disclosure was not " spontaneous" because it was not made until four years after the alleged abuse occurred. He further argues that C.'s mother had a motive to fabricate a claim against him. He argues that the hearing officer could not reasonably have determined that C.'s mental state was not an impediment to a reliable report of abuse because the investigator did not explore the " issues" that led C. to seek counseling in the first place. Finally, he argues that there are numerous inconsistencies in the various hearsay accounts. These arguments are not persuasive.
Ohio v. Roberts was overruled as to the use of testimonial hearsay statements against criminal defendants in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Outside of criminal proceedings, however, " courts apply the pre- Crawford rule, under which an unavailable declarant's statements may be admitted as long as there is adequate indicia of reliability or other particularized guarantees of trustworthiness." In re Tayler F., 296 Conn. 524, 554, 995 A.2d 611 (2010).
In the first place, the plaintiff confuses " spontaneous" with " contemporaneous." It is well recognized that victims of childhood sexual abuse often do not report the abuse immediately. See, e.g., State v. George J., 280 Conn. 551, 567, 910 A.2d 931 (2006) (commenting on " well documented problems of shame and repressed memories that often preclude child victims of sexual abuse from timely reporting the crime"). C. herself explained her delay in reporting the abuse. She said that she was scared and that the plaintiff had told her that no one would believe her. When she finally disclosed it to her mother, her mother believed her, but was also afraid to report it because people in the church might call C. a liar. The delay in reporting does not mean that the disclosure was not spontaneous.
As the state argues, the issue of spontaneity does not concern when a victim reports abuse, but whether she reports it of her accord or at the prompting of someone else. " A primary consideration in ascertaining the spontaneity of a statement by a child victim of sexual abuse is whether there is evidence of prior interrogation, prompting, or manipulation by adults . . . such that one cannot confidently characterize the response as the product of the child's own perception or experience." (Citation omitted; internal quotation marks omitted.) State v. Merriam, supra, 264 Conn. 643. In this case, there is no evidence that anyone manipulated C. to elicit an accusation against the plaintiff. C.'s letter does indicate that in July 2011, someone in her family suspected that someone had done something to C. because she was " acting different, " and someone was going to talk to her mother about it. C. decided to tell her mother about it at that time because she didn't want her to get a " wrong story" about it from anyone. This does not suggest, however, that anyone planted the allegation in her mind; it indicates only that someone noticed her emotional distress.
The plaintiff's theory that C.'s mother had a motive to fabricate a claim against the plaintiff is not only contradicted by the evidence but also irrelevant. By both C.'s account in her letter, and by C.'s mother's testimony, C.'s disclosure to her mother was not elicited by her mother but resulted from a relative's suggestion that she should talk with her mother about whatever was upsetting her. C.'s letter indicates that her mother was upset by the disclosure, not because she doubted C.'s account, but because she did not know how to handle it or how to help C. At times it even seemed to C. as if her mother was angry with her for disclosing the abuse. This evidence does not support a claim that C.'s mother somehow elicited a fabricated accusation from C.
More significantly, Millo testified that she could not discern any motive that C. herself would have to fabricate a claim against the plaintiff. By the time C. disclosed the alleged abuse, the plaintiff was no longer in New Haven and C.'s mother was not making C. go on visits to his church in New York. Indeed, the plaintiff does not even argue that C. herself had a motive to accuse him falsely.
The plaintiff also challenges the hearing officer's conclusion that C.'s mental state was not an impediment to finding her hearsay statements reliable. The plaintiff points to evidence that (1) C. was distressed and in need of help for cutting behavior when her mother took her to the plaintiff for counseling in the first place, and (2) C. had previously been a victim of inappropriate contact by a relative when C. was twelve, a year before she went to the plaintiff for counseling.
Both C. and her mother reported that C. had " issues" that were not more fully described. C.'s mother testified that she took C. to the plaintiff for counseling in 2008 because of " family issues" as well as the cutting behavior. She described C. as an " emotional" person. C.'s January 2012 letter described a continuing state of distress, including persistent dreams about the plaintiff " hurting her" and " bad memories" that caused her to worry that he might be treating someone else the way he had treated her.
C. was unwilling to disclose to Millo what " issues" had led to her cutting behavior in 2008. Millo testified that cutting behavior is a matter for concern that should be addressed by a mental health evaluation. C. did not receive any counseling from anyone other than the plaintiff until after she wrote her letter to the church in January 2012. At that time, the church paid for counseling services for her.
While a more thorough evaluation of C.'s mental health issues might be desirable, the question before this court is whether the hearing officer could reasonably find that C.'s mental state was not an impediment to determining that her hearsay statement was reliable. After a careful review of the record, the court concludes that C.'s admitted emotional issues do not rise to a level that would compel the hearing officer to conclude that C. was mentally unstable. Nothing in the evidence suggests that C. had previously made false claims of sexual abuse or was in any way delusional. Nor does the evidence suggest that the cutting behavior continued after 2008; C.'s mother believed it had occurred only once. While the plaintiff complains that Millo did not adequately investigate C.'s mental health issues, Millo herself was a social worker with experience in investigating claims of sexual abuse of children. She spoke with C. directly and did not discern anything that raised concerns for her about C.'s mental state at the time of the interview. The plaintiff's counsel cross examined Millo extensively to point out what he believed were inadequacies in her investigation, and he presented argument regarding these alleged inadequacies to the hearing officer. The hearing officer's conclusion that C.'s mental state did not render her report unreliable is adequately supported by the record.
As to the evidence regarding prior sexual abuse of C., there is little in the record to suggest that it was of such a nature to cause her prolonged emotional distress. In her letter, C. stated that her cousin's husband, who had drug problems, had touched her inappropriately when she was twelve. She said, though, " that got taken care of." Her mother testified that she was aware of the incident involving the relative, that she had spoken with his wife, and that she was unaware of any further issues regarding the relative. Neither C.'s letter nor her mother's testimony indicated that the incident with the relative caused any lasting emotional distress for C. To the contrary, the evidence indicates that the relative's inappropriate conduct was promptly addressed within the family.
Finally, the plaintiff argues that C.'s statements were inconsistent. The hearing officer found that C. did not deviate from her report that the plaintiff kissed her and fondled her during counseling sessions. Despite some acknowledged inconsistencies as to more tangential facts, the record as a whole supports the hearing officer's conclusion. In the January 8, 2012 letter, C. stated that the " harassment" by the plaintiff went on for " about a year" and appeared to include instances when the plaintiff would catch up to her outside counseling sessions and find a way to talk with her, including a time when he grabbed her " bust area." In her interview with Millo, C. described more particularly seeing the plaintiff for counseling sessions twice a week for about four weeks before telling her mother she did not need counseling any longer. The hearing officer concluded that C. perceived that she was harassed for about a year but that the focus of her complaint was the counseling sessions that occurred over a four-week period. The plaintiff has not shown that this is an unreasonable reconciliation of the two statements. Moreover, despite some other minor inconsistencies, the record as a whole reveals that C. consistently reported that the plaintiff fondled and attempted to kiss her in more than one counseling session when she was thirteen.
The plaintiff has not met his burden of proving that the hearing officer's findings as to the reliability of C.'s hearsay statements are clearly erroneous in light of the whole record or that the conclusions drawn from her findings are unreasonable or arbitrary. The hearing officer correctly identified the Merriam factors and her application of those factors is supported by substantial evidence in the record.
III
REDACTION OF THE INVESTIGATION PROTOCOL
The plaintiff argues that he was deprived of due process because he was not provided with a fully unredacted copy of the investigation protocol. In particular, he argues that the scope of the redactions is not clear because the hearing officer allowed the continued redaction of " information regarding her school." The defendant argues, to the contrary, that parties are not entitled to an unlimited inspection of confidential records in the hope of discovering material evidence. The defendant further argues that the redacted information is not exculpatory.
In objecting to the disclosure of the unredacted investigation protocol, the department relied on General Statutes § 17a-28(b), which provides in relevant part that " 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 . . . section 17a-101k." The department's objection, however, did not address General Statutes § 17a-101k, which establishes the department's abuse and neglect registry and provides procedural protections for those whose names are recommended for placement on the registry. In particular, in discussing the internal review of placement recommendations, § 17a-101k(c)(1) provides in relevant part that " the commissioner shall provide the individual access to all relevant documents in the possession of the commissioner regarding the finding of responsibility for abuse or neglect of a child . . ."
The investigation protocol is clearly a " relevant document." The copy of the investigation protocol originally provided to the plaintiff in this case was heavily redacted and omitted many references to the department's unsuccessful efforts to have C.'s mother follow up with the department. ROR, Exhibit 20. However, in considering the plaintiff's request for access to the unredacted protocol, the hearing officer conducted an in camera review of the redactions and ordered that most of the redacted information be disclosed. She allowed the department to continue to redact the " information regarding the child's date of birth, the information regarding her school and the location of the school and the name of the persons contacted at her school." ROR, Exhibit 13. A lightly redacted copy of the protocol was provided to the plaintiff and was entered into the administrative record as Exhibit 17. The hearing officer did not cite any legal authority for the remaining redactions.
At the end of the administrative hearing, the plaintiff's counsel complained that he did not know what information had been redacted from Exhibit 17. ROR, Transcript, p. 160. The hearing officer advised him that if he had an issue regarding the redaction, a new hearing would be held with a different hearing officer. The plaintiff's counsel said that he did not know what his position was because it was " a game of blind man's bluff." Id., p. 161. The hearing officer reiterated that the plaintiff could have a new hearing with a new hearing officer. The plaintiff's counsel then stated that he had no issues with Exhibit 17. Id., p. 162. The department has not raised this apparent waiver of any claim regarding Exhibit 17 in its brief.
In its brief, the department argues that the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, provides for the confidentiality of educational records, and except as otherwise authorized in FERPA, school districts must have written consent of the parent before confidential student information is disclosed. In this case, however, it was C.'s mother who disclosed to the department C.'s personal information, including the name and location of the out-of-state school she was attending at the time of the investigation. The department does not explain why information provided by a parent to the department is governed by FERPA.
Courts exercise caution regarding the disclosure of confidential information. See, e.g., In re Jacklyn H., 162 Conn.App. 811, 131 A.3d 784 (2016) (reversing denial of motion for return of copies of court-ordered psychological report that had been released to juvenile probation officer without judicial approval). Due process does not require that an accused person be given access to all conceivable information, but only to material information that is favorable to him. See State v. Harris, 227 Conn. 751, 762-64, 631 A.2d 309 (1993). Nevertheless, General Statutes § 17a-101k(c)(1) is an exception to the general rule of confidentiality of department records. It requires the department to provide relevant documents to an accused whose name has been recommended for placement on the registry. In light of that requirement, which removes the bar of confidentiality in § 17a-28, the department should offer specific justifications for redactions that it believes are necessary.
Although the court is not persuaded that the department has provided sufficient justification for each redaction that remained in Exhibit 17, the court concludes that no substantial rights of the plaintiff were affected. The court has conducted its own in camera review of the fully unredacted copy of Exhibit 17 that the department lodged with the court pursuant to the court's order of February 1, 2017. It has determined that the redacted information consists of C.'s date of birth, the name of the school she attended in New Haven before going to school out of state, the name and location of the school she was attending out of state, the name and title of the person at the out-of-state school through whom Millo contacted C., the address and telephone number of C.'s mother, and a statement by C. as to when she expected to return to Connecticut. Some of this information was available to the plaintiff through other sources. The out-of-state school that C. attended was identified in the police report. The plaintiff's attorney was able to locate C.'s mother and serve a subpoena upon her for her testimony at the administrative hearing. None of the redacted information was exculpatory. The court concludes, therefore, that the limited redaction of the protocol did not prejudice any substantial rights of the plaintiff.
The department invited the court to conduct such an in camera review in its brief and at oral argument. The court ordered a copy of the unredacted exhibit to be lodged with the court for that in camera review. (Order No. 122.) Pursuant to that order, the court clerk will retain the lodged unredacted copy of Exhibit 17 pending any appeal of this decision.
CONCLUSION
There is substantial evidence in the administrative record to support the department's findings of basic fact, and the conclusions drawn from those facts are reasonable. The plaintiff has not shown that the department acted unreasonably, arbitrarily, illegally or in abuse of its discretion. Accordingly, the appeal is dismissed.