John C. Clapper, Jr., Administartor et al. v. Joel Gallup et al. (2015)

MEMORANDUM OF DECISION ON PRACTICE BOOK § 11–20A MOTION (# 126) TO SEAL EXHIBITS IN OPPOSITION TO MOTION FOR DNA SAMPLE

Before the court is the defendant Joel Gallup's motion pursuant to Practice Book §§ 7–4B, 7–4C and 11–20A to seal two exhibits (“the exhibits”) to his opposition to the plaintiffs' motion # 120 to compel production by Gallup of a DNA sample.¹  The motion to seal was calendared for hearing on June 29, 2015.   See Practice Book § 11–20A(f)(1), infra.   The motion was called on that day, with no response, and submitted on the papers.

FACTS

On December 7, 2010, there occurred a catastrophic, single-vehicle accident on Rt. 201 in Griswold.   Four of five high school students in the car, including the plaintiffs' son, died that day.   Only the defendant survived.   The accident and its aftermath received citizen interest and concern and extraordinary press coverage.

Omitting legal conclusions and opinions,² the plaintiffs allege the following key facts.

The plaintiffs' son and decedent, John Clapper, was a passenger in the automobile that crashed on that day.   The plaintiffs are informed and believe that the defendant Joel Gallup was operating that automobile at that time and place, with the permission and/or authority of its owner, defendant Gina Pelletier.   At that time and place, the defendant Gallup so negligently operated the automobile, in multiple particulars including unreasonable speed, that he caused the vehicle to leave the road and collide with a tree.   The collision caused fatal injuries to the plaintiffs' son and decedent.

In the motion being opposed, in substantial part, by the exhibits sought to be sealed, the plaintiffs state that the Connecticut State Police have determined that their son John was the driver of the automobile and that “obtaining the DNA of the defendant, Joel Gallup, is the only remedy available for the plaintiffs to conclusively determine the driver of the vehicle at the time it crashed into the tree ․ It can also exclude him from being the driver.”   The exhibits sought, without opposition from the plaintiffs/movants, are State Police investigation records, including photographs.

The court finds based on advice from the court clerk's staff that notice of the present motion to seal's nature and hearing date, time and place was automatically posted on the Judicial Branch's website (http:// civilinquiry.jud.ct.gov/SealedShortCalendar.aspx) and was posted in the New London Judicial District courthouse in accordance with Practice Book § 11–20A(f)(1).   The motion to seal was filed more than fifteen days before the hearing date.   Other facts will be found in the court's analysis.

DISCUSSION

The rules of practice which apply to motions to seal files or documents within files are detailed, and punctilious compliance with them is required, to preserve the presumption that, “[e]xcept as otherwise provided by law ․ documents filed with the court shall be available to the public.”  Practice Book § 11–20A(a);  see Practice Book § 11–20A(b); ³  see Vargas v. Doe, 96 Conn.App. 399, 413, 900 A.2d 525 (2006), cert. denied, Vargas v. Doe, 280 Conn. 923, 908 A.2d 546 (2006) (rules provide “an intricate procedure that the court must follow”);  see also Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 69, 818 A.2d 14 (2003) (threshold for granting motions to proceed anonymously is high).

In ruling on a motion to seal any part of a court file after commencement of an action, subsections (c) through (f) of Practice Book § 11–20A require the applicant to prove, and the court to consider, and to make findings on, the following factors, even if the parties agree to the requested order.   See § 11–20A(e) (agreement is not valid grounds for order);  Vargas v. Doe, supra, 96 Conn.App. 410 (burden of proof is on applicant).

Unless the court has ordered otherwise, has the motion been calendared at least fifteen days after its filing so that the public has had notice of it, and of the time and place of the hearing on the motion (and thereby an opportunity to be heard on the motion)?  § 11–20A(e) and (f)(1).

What is the interest sought to be protected—and claimed to override the public's interest in viewing the material sought to be sealed?  § 11–20A(c) and (d).

What, if any, reasonable alternatives to the requested order exist?  § 11–20A(c).  Is the requested order necessary to preserve an interest which the court finds to override the public's interest in viewing such materials?   Id.

If the court decides to grant the motion, is the order only as broad as necessary to protect the overriding interest?  Id. What more narrow remedies did the court consider and why is each of those unavailable or inadequate?   § 11–20A(f)(2) (alternatives to sealing entire file include redaction, partial sealing and use of pseudonyms instead of sealing).   Upon what specific facts does the court base its order?  § 11–20A(d).  (It being the movant's burden of proof, and it being generally inappropriate to find facts—in the absence of a party stipulation—from unsworn witness or counsel statements, the movant must submit admissible evidence such as testimony at the hearing or if, as here, the court so allows, affidavit(s).)

What is the duration of the order?  Id.

If any of the court's findings would reveal information which the court finds entitled to remain confidential, should those findings be sealed?  Id.

The time, date, scope and duration of the order of sealing must be in writing, signed by the issuing judge, and immediately entered in the court file and, subject to sealing of findings under § 11–20A(d), posted on the Judicial Branch website and on a bulletin board accessible to the public and adjacent to the clerk's office.  Id.

The court shall either prepare a memorandum of decision on the motion or order that a transcript of its decision be included in the file.  § 11–20A(d).  See, generally, Doe v. Doe, Superior Court, judicial district of New London, Docket No. KNL CV–14–6022176–S (November 6, 2014).

“Inherent in the concept of judicial discretion is the idea of choice and a determination between competing considerations ․ A court's discretion must be informed by the policies that the relevant statute is intended to advance.”   (Citation omitted.)  State v. Robinson, 32 Conn.App. 448, 460, 630 A.2d 87 (1993), aff'd, 230 Conn. 591, 646 A.2d 118 (1994).   In the exercise of this discretion, there can be no requirement that the court so the limit relief granted that it is ineffective, including that, by diligent or creative search, or by accident, documents intended to be sealed could be viewed by non-parties, let alone by the general public.

In this light, the court makes the following findings on the present motion to seal the file.

The motion has been lodged, calendared, posted and heard in the manner required by § 11–20A(e) and (f)(1).

The interests which the defendant seeks to protect by a court order sealing the subject exhibits and which he claims override the public interest in access to those exhibits are the following.   First is the parties' interest in confidentiality of the privileged and/or highly sensitive medical and other accident investigation information in the exhibits.⁴  Second is the interest of the families of the other students killed in the accident in the confidentiality of those students' medical records.   Third is the interest of the defendant and of the families of all the accident victims—including the plaintiffs—in keeping graphic details of the horrific, sensational accident as private as is consistent with the law and public policy, particularly in avoiding another round of sensational press coverage now, four and one-half years after the accident.   Fourth, the movant has, and clearly if implicitly claims, an interest in not having to choose between, on the one hand, self-censoring and submitting a weak opposition to the motion to provide a DNA sample and, on the other hand, a substantial risk of condemnation, or even legal actions, for revealing graphic details in defending the DNA motion.

The court finds all of the four interests of the defendant listed above override—they outweigh—the public's interest in viewing the exhibits.

Just as an agreement of the parties to sealing is insufficient to justify such an order, the issues raised by the movant are not the only ones the court may consider.   To the movant's interests, the court adds two other public policy interests.   The first is the court's, the state's and, indeed, the public's interest in maintaining the dignity of the courts and court proceedings.   The court finds that that interest would be harmed if, in the name of the public's right to know, the court did not realistically weigh both the separate and the cumulative effects of allowing so-far confidential police records, including dramatic details and confidential medical and other personal information, to be filed and maintained in the court's public records.   Subject to proceedings under the Freedom of Information Act, the public's right to know the details of the accident, the investigation and the victims' medical conditions can, in certain cases, at least wait until the facts and claims have been adjudicated and it is the court's responsibility to determine which those cases are.

The second public policy interest is in both the fairness and the perception of fairness of our court system.   In a lawsuit, even between impeccably courteous and reasonable litigants, there is always at least the inherent stress of a dispute which the parties have been unable to resolve outside of the court system.   Courts have the inherent duty and power to determine whether judicial restraint would mean unfair oppression of one party by another (let alone intentional use of the court as an instrument of such oppression);  that is, to determine whether and when protection of the actual and perceived fairness of court records and proceedings requires an exception to the public's general right to know what goes on in the court system.   This court finds these two public policy interests add weight to the movant's § 11–20A motion because, in fairness, the movant should be able to litigate this case without having to make the choice described above between self-censoring at the price of a weak opposition to a motion and a substantial risk of public condemnation, or even legal actions, for revealing graphic details in these days of the internet, social media websites and other communications technologies, the existence and common, pervasive, fast, far-reaching and often anonymous use of which the court can and does take judicial notice.⁵

The court has reviewed the exhibits and finds their pertinent content generally so sensitive, confidential and conducive to sensationalism and distress if made public at this time that it is appropriate to grant the present motion.

Other than wishing the movant had been more selective in preparing the exhibits, the court finds no reasonable alternative to sealing them.   The court has considered redaction of the exhibits.   Apart from the fact that the general confidentiality of the police records applies to every part of those records, the court finds redaction would be impractical:  eliding graphic or medical details and ordering the release of redacted versions of the exhibits is not reasonably likely to constitute a reasonable compromise in the eyes of the defendant, of the families of the accident victims, or of the public.   Elision from the scope of this order of pages within the exhibits which seem to the court impertinent to the defense of the DNA motion would have no social or public policy point, since by definition they do not illuminate the horrors and losses flowing from the accident.   Therefore, viewing the present situation practically, the court finds that sealing the exhibits is relief which is no broader than necessary.

The court finds that an order sealing the exhibits—this order—is fitting under Practice Book § 11–20A, necessary to preserve the foregoing interests and no broader than necessary.   The best the court can see to do in the interest of disclosure is not to seal this decision or the decision on the motion that the defendant provide a DNA sample for testing.   For these reasons, the motion to seal is granted.

Because the exhibits are only submitted on one motion, they shall remain lodged with the clerk for a period of thirty days from the date of filing of this order, the court finding that ample time for any interested person to appeal this ruling—only seventy-two hours being allowed by Practice Book § 11–20A(g)—and for the court to rule on the motion for a DNA sample.   Thereafter, unless there is an appeal, the exhibits shall be returned to the movant upon the movant's written request to the clerk.

Cole–Chu, J.

FOOTNOTES

FN1. This judge will rule on motion # 120, submitted on the papers on June 16, 2015..  FN1. This judge will rule on motion # 120, submitted on the papers on June 16, 2015.

FN2. The interpretation of pleadings is always a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005)..  FN2. The interpretation of pleadings is always a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).

FN3. Section 11–20A(b) provides “Except as provided in this section and except as otherwise provided by law, including Section 13–5, the judicial authority shall not order that any files, affidavits, documents, or other materials on file with the court or filed in connection with a court proceeding be sealed or their disclosure limited.”.  FN3. Section 11–20A(b) provides “Except as provided in this section and except as otherwise provided by law, including Section 13–5, the judicial authority shall not order that any files, affidavits, documents, or other materials on file with the court or filed in connection with a court proceeding be sealed or their disclosure limited.”

FN4. The exhibits are almost a one-inch stack.   The court is skeptical that all that information was appropriate, let alone necessary, to defend the plaintiffs' motion to compel a DNA sample, particularly since the movant cited few particulars in the exhibits.   However, the court of course allows for reasonable professional judgments of counsel and self-represented parties and, even if the defendant was overly aggressive—or sloppy—in submitting so many pages, the proper judicial response is not to deny the motion.   Superfluity has no material affect on this ruling because the documents within the exhibits which clearly would be pertinent to the defendant's opposition to the plaintiffs' motion are basically the ones most appropriate for sealing..  FN4. The exhibits are almost a one-inch stack.   The court is skeptical that all that information was appropriate, let alone necessary, to defend the plaintiffs' motion to compel a DNA sample, particularly since the movant cited few particulars in the exhibits.   However, the court of course allows for reasonable professional judgments of counsel and self-represented parties and, even if the defendant was overly aggressive—or sloppy—in submitting so many pages, the proper judicial response is not to deny the motion.   Superfluity has no material affect on this ruling because the documents within the exhibits which clearly would be pertinent to the defendant's opposition to the plaintiffs' motion are basically the ones most appropriate for sealing.

FN5. Although preserving the confidentiality of medical records is a well-known and important aspect of HIPAA, the Health Insurance Portability and Accountability Act, 42 U.S.C. § 1320d, et seq., the movant does not claim, and this court does find, HIPAA to apply to police records.   The movant cites a nonexistent statute, § 56–140o, as also regulating disclosure of medical information.   That error, while puzzling, is not a ground for denying the present motion..  FN5. Although preserving the confidentiality of medical records is a well-known and important aspect of HIPAA, the Health Insurance Portability and Accountability Act, 42 U.S.C. § 1320d, et seq., the movant does not claim, and this court does find, HIPAA to apply to police records.   The movant cites a nonexistent statute, § 56–140o, as also regulating disclosure of medical information.   That error, while puzzling, is not a ground for denying the present motion.

Cole–Chu, Leeland J., J.