Attorney General's Opinion
Attorney General, Richard Blumenthal
August 15, 2006
Raymond M. Hassett, Esq.
Judicial Review Council
505 Hudson Street
Hartford, CT 06126
Dear Attorney Hassett:
You have asked my opinion regarding the Judicial Review Council’s obligation to permit public access to records of investigations of complaints of judicial misconduct. In particular, you ask whether the public's right to disclosure after a probable cause finding by the Judicial Review Council (“the
Your question primarily concerns the proper construction of Conn. Gen. Stat. § 51-51l(a), which provides in relevant part that “any investigation to determine whether or not there is probable cause that conduct under section 51-51i has occurred shall be confidential and any individual called by the council for the purpose of providing information shall not disclose his knowledge of such investigation to a third party prior to the decision of the council of whether probable cause exists, unless the respondent requests that such investigation and disclosure be open, provided information known or obtained independently of such investigation shall not be confidential.”
In determining the meaning and scope of Section 51-51l(a), we look to the statute's language, history and context. See, e.g., State v. Patterson, 276
The degree of confidentiality afforded records and proceedings relating to an investigation of judicial misconduct turns on whether the complaint in question has been found to be supported by probable cause. Section 51-51l(a) requires that “any investigation to determine whether or not there is probable cause that conduct under section 51-51i has occurred shall be confidential and any individual called by the council for the purpose of providing information shall not disclose his knowledge of such investigation to a third party prior to the decision of the council of whether probable cause exists, unless the respondent requests that such investigation and disclosure be open, provided information known or obtained independently of such investigation shall not be confidential.”
Under the plain language of Conn. Gen. Stat. § 51-51l(a), the
A review of relevant legislative history clearly demonstrates that, upon a finding of probable cause, the legislature intended that all investigatory records be public, no matter when compiled or obtained. The current temporal limitation on confidentiality -- “prior to the decision of the council of whether probable cause exists” -- was added to § 51-51l(a) as part of a review and revision of the statutes governing the
Once probable cause is found, under current law, the record of the subsequent proceedings, but nothing prior, is open. However, the rationale of shielding totally baseless complaints is removed once probable cause is found. In the opinion of the committee, the whole record should be open in such cases. The program review committee recommends the statutes be amended to provide for disclosure of the entire record of a complaint for which probable cause has been found.
Legislative Program Review Committee Report re: Judicial Review Council, May 1992, at 34 (emphasis by bold in original, emphasis by italics added).
Similarly, in discussing the relevant portion of Public Act 92-160, Representative Robert D. Bowden, co-chair of the Committee and co-sponsor of the Public Act, stated: “In the remaining sections after the section on terms, discuss the confidentiality of the investigations, which need not prevail after probable cause is found, if it is found.” House Transcript,
Thus, in revising the
This legislative directive is consistent with the clear statutory requirement that, upon a finding of probable cause, further proceedings on a complaint are open to the public. See Conn. Gen. Stat. § 51-51l(c)(“If a preliminary investigation indicates that probable cause exists that the judge … is guilty of misconduct under section 51-51i, the council shall hold a hearing concerning the conduct or complaint. All hearings held pursuant to this subsection shall be open.”).
The conclusion is further supported by an analysis of the relevant public interests. There unquestionably exist strong policy reasons for maintaining confidentiality of records of complaints that have not - - or have not yet - - been found to be supported by probable cause. However, by distinct contrast, there is no clear or overriding public interest that would justify the continuing confidentiality of investigatory records after a finding of probable cause has been made.
The purposes underlying the requirement of confidentiality of
[C]onfidentiality before a finding of probable cause: (1) allowed the
Kamasinski v. Judicial Review Council, 44 F.3d 106, 108-09 (2d Cir. 1992)(summarizing findings of then-United States District Judge Jose A. Cabranes).4
As the Court noted, these public policy interests yield to the goal of full public disclosure after a
In sum, no legal basis or rationale exists for denying public access to investigatory records - - regardless of when obtained - - concerning complaints after there is a finding of probable cause. Full access is clearly mandated by the statutory language, relevant legislative history and public policy.
Please do not hesitate to contact me if I can be of further assistance on this or any other matter.
Very truly yours,
1 According to statute, until the
2 For purposes of this opinion, investigatory records include but are not limited to the complaint, transcripts of evidentiary proceedings, and statements and/or other documentary evidence obtained or compiled during the investigation.
3 The report of the Office of Legislative Research concerning Senate Bill 387, which became Public Act 02-160, similarly states that the bill “limits confidentiality to the period prior to the council’s determination on whether probable cause exists.” OLR Amended Bill Analysis Report re: SB 337 (File 555, as amended by Senate “A” and House “A”), at 3. The legislative record also includes the comments of
4 While relevant in its discussion of the public policies underlying pre-probable cause confidentiality, the decision in Kamasinski answered a question not posed here: whether the First Amendment permits the State to prohibit a complainant from disclosing that he or she has filed a complaint. See Kamasinski, 44 F.3d at 108.