MACOMBER v. DUMLAO

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Court of Appeal, Third District, California.

Gary D. MACOMBER, as Director of The Department of Developmental Services, Plaintiff and Respondent, v. STATE PERSONNEL BOARD et al., Defendants and Respondents, Michelle DUMLAO, Real Party in Interest and Appellant.

No. C000604.

Decided: December 17, 1987

Kanter, Merin, Dickstein & Kirk, Sacramento, and Marni Leger, Davis, for real party in interest and appellant. No appearance for respondent. John K. Van de Kamp, Atty. Gen., Charlton G. Holland, III, Sr. Asst. Atty. Gen., Elisabeth C. Brandt, Supervising Deputy Atty. Gen., Dennis Eckhart, Deputy Atty. Gen., for plaintiff and respondent.

The State Personnel Board (Board) seeks to dismiss Michelle Dumlao from her employment as a psychiatric technician at Stockton State Hospital.   Proceedings under the state civil service law were initiated against her.   This is an appeal from a judgment granting a writ of mandate commanding the Board to quash an administrative subpoena duces tecum which sought all of the records of four residents of Stockton State Hospital, classified as developmentally disabled, who were to appear as witnesses in the proceedings against her.   The trial court issued the writ on the ground that the records are privileged under Welfare and Institutions Code section 4514 and Evidence Code section 1040, subdivision (b)(1).   We will affirm the judgment.

FACTS

Dumlao was employed as a psychiatric technician at Stockton State Hospital in a permanent state civil service position.   She was dismissed effective April 22, 1985, for allegedly arranging for one resident client to beat another resident client, failing to intervene when the beating ensued in her presence, failing to report the incident, and failing to inquire if the resident who had been beaten had sustained injuries.   Dumlao contested the dismissal and a hearing before the Board's Administrative Law Judge (ALJ) was noticed for June 28, 1985.

The ALJ issued a subpoena requiring the production of the records of the hospital pertaining to four of its residents who were to appear as witnesses at the hearing.   The subpoena was issued at the behest of Dumlao's counsel who supported the request with a declaration saying in pertinent part as follows:  “I am an attorney representing [Dumlao] in this [Board] hearing.   Appellant was dismissed for her alleged role in the assault by one client of another․  [¶] The evidence used by Stockton State Hospital to dismiss [Dumlao] consists primarily of the testimony of four clients institutionalized at Stockton State Hospital.   I have requested the patient files of these clients ․ to support [Dumlao's] contention that each of them has a history of falsely accusing staff of patient abuse, of fabricating stories, of misperceiving reality, or of other personality disorders which impact upon their perception of reality.   The patient files, which include diagnosis, treatment plans, psychological and social evaluations, etc., will shed light on the credibility of the accusers.”

 At the outset of the Board's hearing the State Department of Developmental Services (Welf. & Inst.Code, § 4400), which has jurisdiction over the hospital (Welf. & Inst.Code, § 4440), moved that the subpoena be quashed because the records are privileged under Welfare and Institutions Code section 4514 and because there had been no compliance with Code of Civil Procedure section 1985.3, which governs subpoenas of personal records.   Dumlao then served copies of the subpoena and the supporting affidavit and a notice upon each of the residents and the residents' parents, as called for under Code of Civil Procedure, section 1985.3, subdivision (e).   The residents apparently were unwilling to consent to release of their files.   The ALJ denied the motion to quash the subpoena but issued a protective order limiting disclosure to Dumlao and her counsel and allowing the Department in camera review of particularized claims of irrelevancy.

The Department of Developmental Services then filed a petition for a writ of mandate in the superior court commanding the Board to quash its subpoena.   The superior court granted the petition and Dumlao appeals from the resulting judgment.

DISCUSSION

I

The Board is required to conduct hearings to review punitive action taken for cause against a state employee.  (Gov.Code, §§ 18670–18671, 19570–19571, 19576, 19578.)   The employee has the right to inspect any documents in the control of the appointing power “which are relevant to the adverse action taken or which would constitute ‘relevant evidence’ as defined in Section 210 of the Evidence Code.”  (Gov.Code, § 19574.1).   The grounds of admissibility are somewhat broader than in a civil action, but the statutory rules of privilege apply.  (Gov.Code, §§ 19578, 11513.)   The employee also may inspect documents, take depositions of and subpoena witnesses.  (Gov.Code, §§ 18671, 19580, 19581.)   The methods of discovery authorized by statute are augmented by common law rules whenever it appears necessary to promote fair hearings and effective judicial review.  (Shively v. Stewart (1966) 65 Cal.2d 475, 55 Cal.Rptr. 217, 421 P.2d 65.)

The person conducting the hearing, here the administrative law judge, is authorized to issue subpoenas for the production of books and papers.  (Gov.Code, § 18671.)   However, that power is conditioned.   Except as otherwise provided by statute, the privileges recognized by the Evidence Code limit the matters that may be sought in any investigation or hearing conducted by an administrative agency or hearing officer.  (Evid.Code, §§ 901, 910.)   Among them, a public entity has a privilege to refuse to disclose information it has acquired in confidence if disclosure is forbidden by statute.  (Evid.Code, § 1040.)   Where such information, as here, pertains to personal privacy, the person affected also has standing to claim the privilege.1

The privilege provided by Evidence Code section 1040 was invoked by the agency in this case because Welfare and Institutions Code section 4514, with limited exceptions, forbids the disclosure of “information and records obtained in the course of providing intake, assessment, and services” to persons with developmental disabilities.2

However, subdivision (f) of Welfare and Institutions Code section 4514 excepts from this prohibition information and records which are provided “[t]o the courts, as necessary to the administration of justice.”   As the parties frame the issue:  Is the Board a court within the meaning subdivision (f)?   We answer that question in the negative but view that answer as not dispositive of the case.

An identical provision, Welfare and Institutions Code section 5328, subdivision (f), was at issue in County of Riverside v. Superior Court (1974) 42 Cal.App.3d 478, 116 Cal.Rptr. 886 (hereafter Riverside ).   It held that records of a chiropractor's voluntary treatment for alcoholism could not be disclosed to the State Board of Chiropractic Examiners for the purpose of use as evidence in a hearing to revoke his chiropractor's license for “habitual intemperance in the use of ardent spirits․”  (Id., at p. 480, 116 Cal.Rptr. 886.)  Riverside is followed without analytic discussion in Gilbert v. Superior Court (1987) 193 Cal.App.3d 161, 170, 238 Cal.Rptr. 220.   It goes without further saying that our discussion of Riverside encompasses Gilbert as well.

The provisions it applied are identical in purpose and content to that under review except that they apply to records and information obtained in the course of providing services under the Lanterman–Petris–Short Act.  Welfare and Institutions Code section 5328, subdivision (f), as does section 4514, subdivision (f), excepts from its prohibitions, information and records which are provided “[t]o the courts, as necessary to the administration of justice.”   The provisions of section 4514 and section 5328 thus bear the same meanings 3 and the Riverside case is directly in point on the issue tendered in this case.

A.

We do agree with Riverside that an administrative agency is not a court for purposes of disclosure of confidential patient information.   That precludes a direct release of the requested information to the Board for its determination whether disclosure is warranted.

Dumlao argues in support of the administrative subpoena that the Board like the Workers' Compensation Appeals Board, is a constitutionally established agency that has, within its jurisdiction, adjudicatory powers as a court, and therefore is a court, relying upon 61 Ops.Cal.Atty.Gen. 46 (1978) (Worker's Compensation Appeals Board (WCAB) is a court within the meaning of section 5328).   We disagree.   Although the WCAB performs many judicial functions, it is nowhere called a court.   Court ordinarily means a court of record.   That is the sense generally intended where the term is used in the Welfare and Institutions Code, of which section 4514 (as well as section 5328) is a part.  “Court, unless otherwise specified, means a court of record or a justice court;  ․”  (Welf. & Inst.Code, § 5008, subd. (k).)  There is no contrary specification.

B.

 However, we part company with Riverside, supra, insofar as it holds that Welfare and Institutions Code section 5328, and analogously section 4514, absolutely prohibits the disclosure of confidential information when sought by administrative subpoenas for uses which are judicially sanctioned “as necessary to the administration of justice”.   That latter phrase does not uniquely speak to uses in the judicial process.   As a matter of the policy of confidentiality which is served by section 5328, we cannot distinguish between release of confidential information to parties to a judicial proceeding and release to parties to an administrative proceeding.

The Riverside court read “to the courts” as meaning to courts of record, and “not to an administrative agency through the courts ” because section 5328 also excepts specified administrative agencies from its prohibitions and the Board is not among them.  “Had the Legislature intended to permit disclosure to ․ [the] State Board it would doubtless have included a specific authorization for such disclosure.”  (42 Cal.App.3d at p. 481, 116 Cal.Rptr. 886.)   Consistent with this reasoning the court said that the qualifying phrase “contemplates use of the information or records ‘as necessary to the administration of justice’ in some pending judicial action or proceeding”.   (Ibid;  emphasis added.)

For interpretive support the court invoked the maxim “expressio unius est exclusio alterius.”  (Riverside, supra, 42 Cal.App.3d at p. 481, 116 Cal.Rptr. 886.).   Behind the formality of the Latin lies the common sense proposition that “when something, but not everything [in a list] of the same category, has been expressed, one may infer that omissions were deliberate․”  (Mellinkoff, Legal Writing:  Sense and Nonsense (1982) p. 193;  emphasis added;  see also 2A Sands, Sutherland Statutory Construction (4th ed. 1984) §§ 47.24–47.25.)   The category is simply the organizing principle which warrants the inference which it is the purpose of the maxim to supply.   Therein lies a difficulty, for its semantic utility wholly depends upon a principle which must be derived by interpretation of the very text for which interpretive aid is sought in the maxim.   That difficulty surfaces in the Riverside reasoning.

The Riverside court assumes that the principle by which the exception in subdivision (f) is to be judged is that Welfare and Institutions Code section 5328 contains an exclusive listing of the quasi adjudicative proceedings in which confidential patient information may be used.   But that principle is nowhere apparent in the section.   In fact, but one item in the list mentions an adjudicative body, and that is the subdivision (f) whose meaning is at issue.   Subdivision (f) provides the only mention of an adjudicative body to which such information may be released, a court, and the purpose for that release—“as necessary to the administration of justice”—does not single out use in a judicial proceeding.   Accordingly, the maxim has no application.

The material question is:  What purposes are served by “as necessary to the administration of justice”?   That language does not rule out derivative release by the court to an administrative agency.   As the parties to this appeal concede, that language does authorize conditional release to the parties to a judicial proceeding.   We find no policy in Welfare and Institutions Code section 5328, and consequently 4514, which distinguishes between the parties to judicial and quasi judicial proceedings.   Subdivision (j) of section 5328 does authorize release of patient information to “the attorney for the patient in any and all proceedings”, a phrase obviously inclusive of both judicial and quasi adjudicative proceedings.   There is no comparable provision authorizing release to any other party to a proceeding.   We do not thereby conclude that such a release is precluded.   Rather, we think the language of subdivision (f) is broad enough to accomplish that task under judicial superintendence “as necessary to the administration of justice.”   The courts fulfill a uniquely judicial function in that determination.  (See Wood v. Superior Court, supra, 166 Cal.App.3d at p. 1150, 212 Cal.Rptr. 811.)   Administrative entities in performing adjudicative functions may be said to be engaged in the administration of justice.   We conclude that the phrase broadly invokes the court's authority to determine whether, by whom and by what standards, the information may be used in a quasi adjudicative proceeding.

II

 In determining whether release is “necessary to the administration of justice” the court cannot use the ordinary measure for discovery but must determine whether release of protected information to an administrative agency is of sufficient gravity to outweigh the values served by confidentiality.

That value, as recognized in Riverside, supra, is that disclosure of confidential patient information would subvert the legislative purpose to encourage persons to seek treatment.  (42 Cal.App.3d at p. 481, 116 Cal.Rptr. 886.) 4  That value, however, does not require non-disclosure in all circumstances.   In our view, appropriately and rigorously construed, the standard of “necessary to the administration of justice” can accommodate client privacy and, where presented, legitimate claims of compelling necessity for disclosure.   To that end we narrowly construe the exception in Welfare and Institutions Code section 4514, subdivision (f), as similar to the exception in the federal Privacy Act of 1974, 5 United States Code section 552a(b)(11) for disclosure “pursuant to the order of a court of competent jurisdiction”, that is to say, as permitting disclosure where, “for compelling reasons, the court specifically directs that a record be disclosed.”  (See Stiles v. Atlanta Gas Light Co. (N.D.Ga.1978) 453 F.Supp. 798, 800;  original italics.)

That reading is impelled by the words of the statute and by the nature of the client's interest, personal privacy, which is of constitutional stature.   As we recently noted, the constitutional stature of the right to privacy has been supplemented by the amendment of article I of the California Constitution.  (See Wood v. Superior Court, supra, 166 Cal.App.3d at p. 1147, 212 Cal.Rptr. 811.)   The disclosure of personal information of governmental services rendered the developmentally disabled persons is justified by the usefulness of such information in the program.   To disclose that information for a purpose beyond that is an incursion into individual privacy for which the client has not given his consent.   Hence, it must be justified by a showing of compelling interest by the party seeking the information to a court of record authorized to issue a subpoena.  (Ibid.)

III

 Neither the Board nor its ALJ has independent authority to compel release of records which are subject to section 4514.   The exception afforded by subdivision (f) of section 4514 is for disclosure upon judicial determination of necessity to the administration of justice.   Hence, a procedural problem arises:  how may an employee tender a claim for release of such records?   The answer is that the employee must file an independent civil action for declaratory and injunctive relief.   The employee's complaint should allege the nature of the pending administrative proceeding and that release of records subject to section 4514 is “necessary to the administration of justice” within the meaning of subdivision (f) as explained in this opinion.

The complaint must be supported with a detailed showing that the records are “necessary to the administration of justice” consistent with the criteria set forth in this opinion.   This showing may itself entail disclosure of information subject to section 4514, e.g. the employee may make assertions about patients gleaned in the course of employment.   However, such disclosure will be to the court and within the exception of subdivision (f).   To the extent that the employee must first disclose information to counsel in order to advance such a claim, such disclosure in good faith to an “officer of the court” is permitted by necessary implication of the provision for disclosure to the court.

If a suitable showing is made, the court must review the records in camera to determine whether they meet the criteria.   If they do in part the court shall direct the release of the appropriate portions of the record.   Here the claim fails at the outset.   The only claim of compelling interest implicated is that disclosure is essential to permit fair and accurate adjudication of the employee's claim of unjust dismissal.   The party which seeks judicial disclosure must establish a compelling interest in disclosure by competent evidence and persuasive argument.   Dumlao's showing cannot qualify under the compelling interest test.

Dumlao claims that the information in the client files is necessary to the administration of justice because it will shed light on the credibility of the clients upon whose statements her dismissal was predicated.   We note at the outset that many of the assertions in the declaration in support of the subpoena request appear incompetent since there is no explanation of the way in which the declarant, Dumlao's counsel, acquired personal knowledge of the facts.   The declaration is manifestly conclusionary.   It might be suggested that a certain laxity regarding the evidentiary showing for an administrative subpoena is permissible, since the rules of evidence in the administrative forum are relaxed.   However, since the disclosure under section 4514, subdivision (f), requires judicial endorsement pursuant to a test of necessity for the administration of justice, that is the standard which must be applied.   We pass these facial defects to address more fundamental shortcomings.

The implication in Dumlao's showing is that she is seeking two varieties of evidence to impeach the client witnesses.   The first is evidence of a propensity to lie, specifically regarding assertions of staff abuse of clients.   The second is evidence of mental conditions which impact upon the clients' perception of reality.   Each variety of evidence tenders a separate theory of necessity which we address seriatim.

 Dumlao first appears to seek evidence of specific acts showing bad character, i.e., a propensity for untruthfulness.   We cannot see how disclosure of such information can qualify as essential to the fair and accurate adjudication of Dumlao's claim.   In the judicial forum in California it has long been the rule that such evidence, except for a felony conviction, is inadmissible to attack or support the credibility of a witness.  (Evid.Code, § 787.)   Accordingly, such evidence cannot be essential to a fair and accurate administrative adjudication of Dumlao's claim.   In this respect the records pertaining to a client appear to be like a diary albeit maintained by third persons.   Even if the general rule regarding prior bad acts were otherwise, we cannot imagine that a party would be permitted a fishing expedition in the diary of a non-party witness on the theory that some such information might be obtained.   The interest in obtaining such information is marginal at best and the infringement on privacy to ferret it out is significant.

 Next, Dumlao seeks information pertaining to the mental condition of the clients regarding their abilities to perceive.   Evidence of substantially less than ordinary capacity to perceive events because of an organic condition is admissible for the purpose of discrediting a witness.  (See Evid.Code, § 780;  also see e.g. 3A Wigmore, Evidence (Chadbourn rev. ed. 1970) § 931.)   Information about such a condition is of interest as an aid to cross-examination.  (See e.g., People v. Reber (1986) 177 Cal.App.3d 523, 223 Cal.Rptr. 139;  cf. Annot., Cross–Examination of a Witness As To His Mental State or Condition, to Impeach Competency or Credibility (1972) 44 A.L.R.3d 1203.)   However, here Dumlao tenders no adequate showing that the prospect of uncovering such information warrants disclosure of client records.

Essentially all that we know of the clients in this case is that they received services from Stockton State Hospital pertaining to developmental disabilities.   The primary purpose of the hospital is the medical and nursing care of patients who are developmentally disabled.  (Welf. & Inst.Code, §§ 4440, 4484.)  “ ‘Developmental disability’ means a disability which originates before an individual attains age 18, continues, or can be expected to continue, indefinitely, and constitutes a substantial handicap for such individual.   As defined by the Director of Developmental Services, in consultation with the Superintendent of Public Instruction, this term shall include mental retardation, cerebral palsy, epilepsy, and autism.   This term ․ also include[s] handicapping conditions found to be closely related to mental retardation or to require treatment similar to that required for mentally retarded individuals, but shall not include other handicapping conditions that are solely physical in nature.”  (Welf. & Inst.Code, § 4512, subd. (a).)

The mental and physical conditions to which this law applies bear no necessary relationship to the purposes for which the information is sought.   “[D]evelopmentally disabled people are an extremely heterogeneous group.   The population can range from those who are intellectually gifted but who have severe physical impairments, to those who are severely mentally retarded but who are, physically, perfectly sound.”  (The Right To Grow Up, An Introduction to Adults with Developmental Disabilities (1986) p. 9.)   Nor does the term “mental retardation” necessarily carry with it any such limitation.   The effects of retardation are specific to the condition of each patient and the limiting effects must be so judged.   Thus classification as developmentally disabled for the purpose of receiving services has no necessary relationship to the impairment of perceptual abilities.  (Id., at pp. 7–8.)

Second, persons with developmental disabilities have the same legal rights and responsibilities as other individuals.  (E.g. Welf. & Inst.Code, § 4502.)   They have, inter alia, “[a] right to dignity, privacy, and humane care.”  (§ 4502, subd. (b).)  These rights have little substance if the term developmental disability carries with it a presumption of incapacity to perceive events.   We decline to indulge such a presumption on the ground that it is inconsistent with the right to dignity and inconsistent with the truth that persons with developmental disabilities are people whose capacities defy stereotyping.

Nothing that we know of the clients in this case warrants an inference that they are more likely than persons without developmental disability to suffer from an incapacity to perceive the events about which they will testify.   Nothing in Dumlao's showing warrants such an inference.

As related, disclosure of the client records can only be justified on a showing that the invasion of privacy is essential to permit fair and accurate adjudication of Dumlao's claim.   Dumlao does not carry this burden unless she shows (1) a likelihood that evidence of substantial perceptual deficiency will be forthcoming, and (2) that no alternative satisfactory means of establishing such a condition is available.  (See Wood, supra, 166 Cal.App.3d at p. 1148, 212 Cal.Rptr. 811.)   Here she has shown neither.   In particular, there is no evidence that if a person with a particular developmental disability is likely to suffer from some variety of significant perceptual difficulty, that this could not be adequately established by techniques such as deposition, cross-examination, or a request for medical or mental examination.   In sum, Dumlao's showing establishes no more than her desire for disclosure.

The judgment is affirmed.

FOOTNOTES

1.   Code of Civil Procedure section 1985.3 requires notification of third parties whose personal privacy will be infringed by compliance with subpoenas.   These procedures pertain to a subpoena duces tecum for confidential personnel, medical or similar files, held by government agencies.  (Code Civ.Proc., § 1985.4.)   Where these provisions apply the person whose privacy is infringed has a privilege to prevent unreasonable disclosure.  (Code Civ.Proc., § 1987;  also see Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 125 Cal.Rptr. 553, 542 P.2d 977;  also cf. Britt v. Superior Court (1978) 20 Cal.3d 844, 143 Cal.Rptr. 695, 574 P.2d 766.)   These protections pertain to administrative subpoenas.  (See Code Civ.Proc., § 1986;  Cal. Const., art. I, § 1;  also see e.g., Wood v. Superior Court (1985) 166 Cal.App.3d 1138, 1147, 1149, 212 Cal.Rptr. 811.)

2.   Section 4514 provides in pertinent part:  “All information and records obtained in the course of providing intake, assessment, and services under Division 4.1 (commencing with Section 4400), Division 4.5 (commencing with Section 4500), Division 6 (commencing with Section 6000), or Division 7 (commencing with Section 7100) to persons with developmental disabilities shall be confidential.   Information and records obtained in the course of providing similar services to either voluntary or involuntary recipients prior to 1969 shall also be confidential.   Information and records shall be disclosed only [in 17 described circumstances].”

3.   Section 4514 is a clonal derivative of section 5328, differing only in the records to which it applies.   The former was enacted and the latter amended in the same act.  (Stats.1982, ch. 1141.)   Section 4514 replicates in large part the text and format of section 5328 but is addressed to persons with developmental disabilities who receive services under specified programs.

4.   As a question of policy, the court sagely observed that people in need of services would be deterred from seeking help if to do so would place them at greater risk of loss of livelihood than if they took no action to address a problem;  This consideration weighs heavily in favor of denying disclosure where it is sought to discipline the client.   Moreover, we have a cultural preference for adversarial rather than inquisitorial disciplinary proceedings.

BLEASE, Associate Justice.

PUGLIA, P.J., and EVANS, J., concur.