Opinion
No. X06-CV-04-0184523 S
June 11, 2008
MEMORANDUM OF DECISION ON THE DEFENDANTS' MOTIONS TO SEAL FBI INTERVIEW SUMMARY STATEMENT OF THE CASE
This is an action instituted by the plaintiff, Bridgeport Harbour Place I, LLC, concerning its interests in the development of property in Bridgeport, Connecticut known as Steel Point. The plaintiff claims that it had an agreement with the City of Bridgeport to develop the property. Among its claims, the plaintiff alleges that the defendant Joseph Ganim, the then city mayor, had a secret plan with other defendants to oust the plaintiff as the developer of the project so that it could be replaced by the defendant United Properties, Ltd. United Properties was owned or controlled by the defendants Alfred Lenoci Sr. and Alfred Lenoci, Jr. The complaint charges that the Lenocis had agreed to pay bribes to Ganim in exchange for the selection of United Properties as the developer of Steel Point.
More specifically, the operative complaint asserts three causes of action against the City of Bridgeport: express breach of contract, breach of the implied covenant of good faith and fair dealing, and quantum meruit. The complaint asserts a claim for fraudulent misrepresentation against Joseph Ganim, Charles J. Willinger, and the law firm of Willinger, Willinger Bucci, P.C. The complaint further alleges that the defendants Alfred Lenoci, Sr., Alfred Lenoci, Jr., and Joseph T. Kasper violated the Connecticut Unfair Trade Practices Act (General Statutes § 42-110a). Lastly, the complaint alleges that the following defendants tortiously interfered with the plaintiff's contractual relations: Charles J. Willinger, Willinger, Willinger Bucci, Alfred Lenoci, Sr., Alfred Lenoci, Jr., United Properties, Crescent Avenue Development, Joseph Kasper, Jr., and Kasper Group.
Pursuant to the Privacy Act, 5 U.S.C. § 552a(b)(11), the plaintiff moved for the court to issue an order directing the Federal Bureau of Investigation to disclose any witness statements taken from or made by Alfred Lenoci, Sr., Alfred Lenoci, Jr., and Michael Schinella. The defendants Charles Willinger and the law firm Willinger, Willinger Bucci, P.C. also moved under the Privacy Act for an order directing the FBI to produce the witness statements of Paul Pinto and Leonard Grimaldi. These motions essentially were in the form of discovery requests seeking the production of these statements to evaluate any information contained in these documents relevant to these proceedings and to facilitate the parties' preparation for the examination of these witnesses when they were called to testify during the trial. These interview summaries are referred to as FBI 302s. The interviews were conducted as part of the federal government's investigation into criminal activities during the administration of Mayor Ganim. This investigation resulted in the criminal convictions of Joseph Ganim, Alfred Lenoci Sr., Alfred Lenoci, Jr., and Paul Pinto for various federal offenses.
This provision of the Privacy Act reads as follows in relevant part:
(b) Conditions of Disclosure. — No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains; unless disclosure of the record would be —
(11) pursuant to the order of a court of competent jurisdiction . . .
5 U.S.C. § 552a(b)(11).
The court granted the motions absent objection and issued an order of production consistent with the provisions of the Privacy Act. In response to the court's production order, the United States Attorney's Office appeared on behalf of the United States and the FBI. The government objected to the release or disclosure of any interview summary to anyone other than the parties to this litigation, and further objected to any unredacted release of these documents even to the parties. Among its arguments, the government maintained that the interview summaries contained confidential and personal information about individuals who were neither parties nor witnesses in this case, and who had no involvement with this litigation. The government further argued that this information about third parties implicated the protections sought to be preserved by the Privacy Act. In response to these issues, the court modified its production order, absent objection. The FBI was directed to lodge redacted and unredacted copies of the interview summaries in accordance with Practice Book § 7-4C. By utilizing the lodging procedures, the unredacted copies could be made available to the parties for purposes of trial preparation without undue invasion of the Privacy Act interests of third parties. Furthermore, any party was free to move that a redacted statement be dislodged and filed with (or without) an accompanying motion to seal. The parties could also seek in camera review of the unredacted documents or seek further disclosure of these documents.
No party moved for in camera review of the unredacted interview summaries.
In compliance with the court's direction, the FBI lodged redacted and unredacted interview summaries of Alfred Lenoci, Sr., Alfred Lenoci, Jr., Paul Pinto and Leonard Grimaldi. (No summaries existed for Michael Schinella.) The redacted copies removed the names and certain information about third parties. The redacted copies were made available to the parties for review and for witness examination purposes only. More specifically, during the examinations of Alfred Lenoci, Sr., Paul Pinto and Leonard Grimaldi, counsel had access to the respective, redacted interview summaries for each of these witnesses. No party was allowed to retain any of the redacted summaries, which were returned to the clerk as lodged documents after their review and use by counsel.
After completing the examination of the defendant Alfred Lenoci, Sr., the plaintiff's counsel moved to dislodge this witness' redacted interview summary, so that it could be marked for identification. Absent objection, the motion was granted and the document was marked as exhibit 1482 for identification purposes only. Thereafter, the Connecticut Post newspaper, through its reporter Michael Mayko, requested to inspect and copy exhibit 1482. The defendants Alfred Lenoci, Sr., Alfred Lenoci, Jr., Charles J. Willinger, and Willinger, Willinger Bucci objected and filed motions to seal the exhibit. In the motions, these defendants requested that the document be sealed in its entirety, or in the alternative, be released only with additional redactions. Noting that the objections and motions to seal should have been asserted when the plaintiff moved to dislodge and file the document, the court nevertheless ordered the document to be lodged again in order to address the motions to seal, and a hearing was scheduled on the motions in accordance with Practice Book § 11-20A.
Practice Book § 11-20A(e) provides the following:
(e) Except as otherwise ordered by the judicial authority, a motion to seal or limit the disclosure of affidavits, documents, or other materials on file or lodged with the court or in connection with a court proceeding shall be calendared so that notice to the public is given of the time and place of the hearing on the motion and to afford the public an opportunity to be heard on the motion under consideration. The procedures set forth in Sections 7-4B and 7-4C shall be followed in connection with a motion to file affidavits, documents or other materials under seal or to limit their disclosure.
The hearing was held on May 16, 2008. In addition to the parties, Mr. Mayko was heard in opposition to the motions, and Assistant United States Attorney John Hughes appeared on behalf of the government in support of the motions. For the following reasons, these motions are granted only in part.
DISCUSSION
There is no dispute that the guarantee of a public trial embodies the right of the public and the press to attend the trial and report what is observed. See generally Hartford Courant Company v. Pellegrino, 380 F.3d 83, 91-92 (2nd Cir. 2004). Moreover, "[i]t is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978). This right to inspect and copy judicial records, however, is not absolute:
In resolving the issues raised by the present motions to seal, the court finds it unnecessary to address the differences between the public right of access under the common law as compared to the public right to access provided by constitutional protections. See generally, Nixon v. Warner Communications, Inc., supra, 435 U.S. 589. The court also assumes, without deciding, that the constitutional right of public access to judicial documents recognized in criminal proceedings extends to civil proceedings. See generally Westmoreland v. Columbia Broadcasting System, Inc., 752 F.2d 16 (2nd Cir. 1984).
Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes. For example, the common-law right of inspection has bowed before the power of a court to insure that its records are not used to gratify private spite or promote public scandal . . . Similarly, courts have refused to permit their files to serve as reservoirs of libelous statements for press consumption . . . or as sources of business information that might harm a litigant's competitive standing . . .
(Citations omitted; internal quotation marks omitted.) Id., 435 U.S. 598.
In this context, however, it is also important to distinguish the public's right to review or inspect materials obtained as a result of the civil discovery process from its right to view documents filed with the court and used as part of the court proceedings.
Liberal discovery is provided for the sole purpose of assisting in the preparation and trial, or the settlement, of litigated disputes. Because of the liberality of pretrial discovery permitted by Rule 26(b)(1), it is necessary for the trial court to have the authority to issue protective orders . . . It is clear from experience that pretrial discovery by depositions and interrogatories has a significant potential for abuse. This abuse is not limited to matters of delay and expense; discovery also may seriously implicate privacy interests of litigants and third parties . . . There is an opportunity, therefore, for litigants to obtain — incidentally or purposefully — information that not only is irrelevant but if publicly released could be damaging to reputation and privacy. The government clearly has a substantial interest in preventing this sort of abuse of its processes . . . The prevention of the abuse that can attend the coerced production of information under a State's discovery rule is sufficient justification for the authorization of protective orders.
(Citations omitted; internal quotation marks omitted.) Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34-36 (1984).
Consequently, as a general rule, matters revealed or obtained as part of pretrial discovery proceedings are "not public components of a civil trial . . . Much of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action. Therefore, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information." Id., 33; accord Welch v. Welch, 48 Conn.Sup. 19, 828 A.2d 707 [ 34 Conn. L. Rptr. 171] (2003).
Consistent with the presumption of openness of judicial proceedings and public access to judicial documents, the recently adopted Practice Book rules provide that documents or other materials filed with the court may be sealed "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 viewing such materials. The judicial authority shall first consider reasonable alternatives to any such order and any such order shall be no broader than necessary to protect such overriding interest." Practice Book § 11-20A(c).
These rules and principles apply to this case and the motions to seal as follows. The court's orders of production served on the FBI were in the nature of discovery orders governed by the broad parameters of the civil discovery rules. Under these rules, documents subject to production need not be proven relevant or admissible as long as "[t]he information sought appears reasonably calculated to lead to the discovery of admissible evidence." Practice Book § 13-2. The specific interest in the production of the interview summaries in this case was for the parties to gauge the extent to which certain witnesses' trial testimony was consistent or inconsistent with each of their statements to the FBI. Consistent with this fairly narrow concern, the FBI was given leave to delete from the interview summaries certain references or matters about third parties unrelated to the subject matter of this litigation, and the parties were allowed to review these redacted summaries to address their limited interest. This process was accomplished by using the lodging procedures of the Practice Book rules. See Practice Book § 7-4C. The interview summaries were lodged, but neither filed nor subjected to public access, similar to the procedures governing the production of documents through civil discovery. Indeed, although the parties were allowed to review the lodged, redacted documents, they were not allowed to retain copies of them. Although the situation presented is somewhat unique, the procedure utilized by the court made the documents available to the parties for the limited purposes at issue in light of the Privacy Act concerns, and this was achieved through the use of the discovery and lodging provisions provided under the rules of practice.
The Connecticut Post seeks to inspect and copy exhibit 1482 precisely because it was marked as a trial exhibit. In addition to the general right to public access emanating from common-law and constitutional precepts, the newspaper supports this request by emphasizing that this document was reviewed and mentioned by counsel as part of their examinations of Alfred Lenoci, Sr., and that this document was marked for identification, whereas the other interview summaries were not. The newspaper also emphasizes the public's interest not only in these trial proceedings in particular, but also in the political workings or operations of the City of Bridgeport more generally, especially in regard to information revealing or providing leads to fraud, corruption or illegal activities in city government. The newspaper also notes that the government has not claimed that disclosure should be withheld because of any ongoing criminal investigation. Furthermore, to lessen concerns that the release might affect the trial proceedings, the newspaper has modified its request so as to acquire access to the document only after the jury has returned its verdict.
The court notes that no media request was made for review of any of the interview summaries that were only lodged with the court, and were neither filed with the court nor marked as trial exhibits. As a general rule under Connecticut procedure, documents that are merely lodged with the court are not judicial records that implicate the public's right to access. This case does not require the court to consider under what, if any, circumstances there may be a right to public access of a document that is only lodged with the court.
On June 6, 2008, the jury returned its verdict in favor of the plaintiff and against Joseph Ganim, Alfred Lenoci, Sr., Alfred Lenoci, Jr., United Properties and Kasper Group.
The defendants' motions to seal the exhibit primarily focus on matters that are of a personal or embarrassing nature to them, or on information that may be characterized as either scurrilous or unrelated to the subject matter of this litigation. The government argues that any broad disclosure of FBI interview summaries through state civil proceedings would be highly unprecedented and pose serious ramifications. Although truthfulness is important during such interviews, the interviewees are not under oath, the information sought or provided may be wide and varied, and the information is reflected or stated in the summaries without prior verification or authentication. The information provided during these interviews may be premised on nothing more than speculation or surmise, and although the third parties mentioned in these documents have legitimate privacy interests and concerns, they are not parties to this action and therefore do not receive an opportunity to be heard. The government further argues that the disclosure of these interview summaries would have a chilling effect on criminal investigations because individuals would be unwilling to talk or would be willing to talk less freely if faced with the prospect that their statements would be exposed to public dissemination. The government also notes that the media is not totally without recourse in that disclosure of these documents is also governed by the federal Freedom of Information Act, 5 U.S.C. § 552.
In ruling on a motion to seal, the court is charged with determining whether there are interests to be preserved or advanced by a sealing order that override the public's interest in having access to the document at issue. See Practice Book § 11-20A. Without expressly addressing the concerns raised by the defendants, the court finds that such overriding interests exist in the positions advanced by the government.
The court, however, notes one exception in regard to Alfred Lenoci, Sr.'s social security number. Based on privacy and identity theft concerns, the court has redacted this social security number from the document ordered to be released pursuant to this decision. See In Re Marriage of Burkle, 135 Cal.App. 4th 1045, 1063-64 (2006) (recognizing that the need to seal information from public disclosure in order to protect against identity theft is a compelling interest.) As a general rule, whether privacy or reputation interests are sufficient considerations to override the public's right to access to judicial records is a fact specific determination, and thus, such interests have been found sufficient in some cases and not in others. Compare United States v. Smith, 776 F.2d 1104 (3rd Cir. 1985) (reputational and privacy interests of third parties may supersede the public's right to access court records) and In Re Application of National Broadcasting Co., Inc., 653 F.2d 609 (C.A.D.C. 1981) (non-disclosure of video and audiotapes introduce into evidence warranted when third persons exposed to humiliation or invasion of privacy), with In re McClatchy Newspapers, Inc., 288 F.3d 369 (9th Cir. 2001) (injury or reputation to third parties insufficient to justify sealing).
The public's interest in exhibit 1482 emanates from the general right to a public trial, and the associated right of the public to know about and have access to the evidence used by the parties during the trial. The extent to which the information contained in exhibit 1482 was actually used or mentioned during the trial is already a matter of public record because this use occurred in open court. The document itself was not seen or used by the jury because it was marked for identification only and was not marked as a full exhibit. Moreover, the fact that the document was marked as an exhibit before the defendants' motions to seal were filed is a factor for consideration, but not a determinative one in evaluating the extent of further disclosure at this time. See generally Nixon v. Warner, supra, 435 U.S. 599 n. 11 ("[t]he fact that substantial access already has been accorded the press and the public is simply one factor to be weighed"). The court is not addressing or precluding use of any information of the document that was revealed during the course of the evidence or may otherwise be in the public domain.
The newspaper is correct in its point that counsel had access to the document and referred to its contents during the trial, but this point does not actually add anything to the analysis about the disclosure of the document itself because counsel may have possession of or make reference to virtually any document during the course of a trial. As a general rule, counsel may acquire documents from their clients, through discovery, or from other sources and either rely on them or use them at trial, but this use alone does not make the document a judicial record implicating any public right to access the documents themselves. As previously stated, the public interest in exhibit 1482 primarily emanates from the public's interest in having access to information actually filed and used in court. This interest is less pronounced concerning information not used or revealed during the course of the trial proceedings, but which merely became known to the parties through the discovery process. See Seattle Times Co. v. Rhinehart, supra, 467 U.S. 20.
The court must also be mindful of the manner in which the document was acquired by the court. The document was obtained through the Privacy Act. The primary purpose of the Privacy Act is not disclosure. Rather, "the main purpose of the Privacy Act's disclosure requirement is to allow individuals on whom information is being compiled and retrieved the opportunity to review the information and request that the agency correct any inaccuracies . . . [T]he Privacy Act was designed to provide individuals with more control over the gathering, dissemination, and accuracy of agency information about themselves . . ." (Citations omitted; internal quotation marks omitted.) Blazy v. Tenet, 194 F.3d 90, 96 (D.C. Cir. 1999). Despite the express, congressional intent and design of the Privacy Act to protect information compiled about individuals by the government, the third parties mentioned in this interview summary will not receive any opportunity to be heard about any release of the information about them contained in this document.
The legislative purpose of the Privacy Act is well-established: "The Privacy Act of 1974 safeguards the public from unwarranted collection, maintenance, use, and dissemination of personal information contained in agency records by allowing an individual to participate in ensuring that his records are accurate and properly used. To effectuate that purpose, the Act requires any agency that maintains a "system of records" to publish at least annually a statement in the Federal Register describing that system. 5 U.S.C. § 552a(e). In addition, any agency that maintains a system of records and receives a request by an individual to gain access to his records or to any information pertaining to him that is contained in the system must permit him to review his records and have copies made of all or any portion of the record in a form that is comprehensible to the requester. See 5 U.S.C. § 552a(d)(1)." (Citation omitted; internal quotation marks omitted.) Blazy v. Tenet, supra, 194 F.3d 96.
The court further finds validity to the government's argument that a denial of the motions to seal and the disclosure of the information at issue will have a chilling or deterrent effect on individuals from whom law enforcement authorities may seek information as part of criminal investigations. Additionally, the court's decision is further guided by the fact that at least to some significant extent, the competing interests at issue in the disclosure of this exhibit have been legislatively addressed and weighed by Congress through the federal Freedom of Information Act. See generally Nixon v. Warner, supra, 435 U.S. 605-06 (relying on the availability of a statutory, administrative disclosure procedure to address a media request for a judicial record).
Although an interview summary is a document covered by the Freedom of Information Act, the court expresses no opinion about whether the act would authorize its disclosure. See, e.g., Forrester v. United States Dept. of Labor, 433 F.Sup. 987 (S.D.N.Y. 1977), aff'd, 591 F.2d 1330 (2nd Cir. 1978).
In balancing these competing interests and in issuing an order that is "no broader than necessary to protect" the interests supporting a sealing order, the court further notes the following. Alfred Lenoci, Sr., whose FBI interview summary is at issue, is a party to this action. Consequently, he has received notice and an opportunity to be heard regarding any disclosure of the interview summary. Although he filed one of the present motions to seal, he did not object to the plaintiff's motion for the order directing FBI production of his interview summary. Any specific "deterrence" to him in being interviewed and providing information to the FBI is essentially nonexistent, and any general chilling effect on any future interviewee is minimal when disclosures occur in civil actions in which the interviewee is a party with an opportunity to be heard. Moreover, any reasons or interests opposing public disclosure at this time of information in exhibit 1482 pertaining to the subject matter of this litigation must be viewed as diminutive. As previously stated, such information was reviewed or revealed as part of the evidence in this case or through Alfred Lenoci, Sr.'s testimony. Thus, the court will grant the motions to seal, but not as to such information pertaining to the subject matter of this litigation or revealed on the record during the course of the trial proceedings.
CONCLUSION
In conclusion, the court grants the motions to seal to the following limited extent. A redacted version of exhibit 1482 will be made available for public access, which will be marked as exhibit 1482-A. Such redactions will not exclude information pertaining to the subject matter of this litigation or information revealed during the trial proceedings. Exhibit 1482 is ordered sealed. Exhibit 1482 shall remain sealed pending final judgment in this case and after all appeal rights have expired, and then shall be destroyed by the clerk of the court. See Practice Book § 7-4B(d). In order to address any further motions to this court or petitions for review, a copy of this decision and exhibit 1482-A shall be mailed forthwith to all parties of record, but exhibit 1482-A shall not be filed and made publically available until June 18, 2008. The seventy-two hour period to petition for review under Practice Book § 11-20A(g) shall commence on June 18, 2008.
When the government lodged the documents, it moved to seal the unredacted interview summaries. This motion was not considered by the court when initially filed because no party moved or requested to review the unredacted documents and no formal appearance was filed by the United States. See Practice Book § 3-7. In any event, as the unredacted copies were neither reviewed by counsel nor filed with the court they are ordered to be returned to the United States Attorney's Office; as the redacted interview summaries of Alfred Lenoci, Jr., Paul Pinto and Leonard Grimaldi were reviewed by counsel for no more than discovery purposes and were not filed with the court, they too are ordered to be returned to the United States Attorney's Office. The government's motion to seal the unredacted interview summaries is therefore denied as moot.
So ordered this 11th day of June 2008.