Martin R. Libbin

Deputy Director, Legal Services

State of Connecticut Judicial Branch

Court Operations Division

100 Washington Street, P.O. Box 150474

Hartford, CT  06115-0474

Dear Mr. Libbin:

This letter is in response to your request for a formal legal opinion as to whether the Judicial Branch has a legal duty to disclose to the public the master  list of prospective jurors compiled pursuant to Conn. Gen. Stat. § 51-222a. You state that the master list contains the “juror’s name, address and social security number (when provided), . . . juror ID number, date of birth, town code, name suffix, source code (motor vehicle, voter, tax list or labor), group identification number (for matching purposes), and IDX number (also for matching purposes).”¹ You further explain that this information is culled from various governmental sources and, in some cases, is protected by confidentiality provisions that render it unclear whether the master list should be considered a public document. Because you periodically receive requests for copies of the master list, you have requested our advice.

We conclude that the master jury list is not a public record and need not be publicly disclosed by the Judicial Branch. We further conclude that if the Judicial Branch chooses to disclose the master list, certain information must be redacted, including all social security numbers regardless of their source, and all birth dates and information other than names and addresses that could have been derived from taxpayer information provided to the Jury Administrator by the Commissioner of Revenue Services. We further conclude that although not required, it would be advisable to redact the residential addresses of all individuals on the master list who fall within the scope of Conn. Gen. Stat. § 1-217.

The Connecticut General Statutes require the Chief Court Administrator to appoint a Jury Administrator for the Connecticut Superior Court. Conn. Gen. Stat. § 51-10. Each year, the Jury Administrator is responsible for creating a master list of possible jurors for superior court trials. Pursuant to the provisions of Conn. Gen. Stat. § 51-222a, the Jury Administrator creates the master list by obtaining lists from the Commissioner of Motor Vehicles, the Commissioner of Revenue Services, the Labor Commissioner, and the Secretary of the State or the town registrars of voters, respectively, of:

·         all residents of the State appearing on the most recent updated list of licensed motor vehicle operators;

·         all residents who filed a personal income tax return in the last tax year;

·         all recipients of state unemployment compensation; and

·         all electors in the State.

Conn. Gen. Stat. § 51-222a(b). These source lists must “include, at a minimum, the name, address and, if available, date of birth of each person on such list or the reason for the unavailability.” Conn. Gen. Stat. § 51-222a(a). In addition, all of the source lists, except the list of electors, must include each person’s social security number or the reason for the unavailability. Conn. Gen. Stat. § 51-222a(a).²] After combining the source lists, the Jury Administrator deletes any duplicate names, as well as the names of deceased individuals and those who have been disqualified to serve as jurors. Conn. Gen. Stat. § 51-222a(c). The resulting list is the “master list” from which the Jury Administrator randomly selects a number of jurors from each town that is equal to a set percentage of the town’s population in order to create the final list of jurors to be summoned for possible jury duty for the upcoming year. Conn. Gen. Stat. § 51-222a(c) and (d).

          You ask whether the master list is a public document. Public access to government documents in Connecticut is generally governed by the Connecticut Freedom of Information Act, Conn. Gen. Stat. §§ 1-200 et seq. (“FOIA”). In pertinent part, FOIA states:

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency . . . shall be public records and every person shall have the right to (1) inspect such records . . . (2) copy such records . . . or (3) receive a copy of such records.

Conn. Gen. Stat. § 1-210(a)(emphasis added). Because FOIA does not require disclosure if state or federal law provides otherwise, it is necessary to consider whether there are state or federal laws that explicitly require the master list or information contained in the master list to be kept confidential.

          Looking at Conn. Gen. Stat. § 51-222a and the other statutes in chapter 884 governing the jury selection process, there is nothing in the language of these statutes that specifies whether the master list is a public record.³ Although the issue is not explicitly addressed in the jury selection statutes, the legislative history of § 51-222a suggests that the legislature intended the Jury Administrator to maintain the confidentiality of any confidential source information from which the master list is compiled. In addition, certain state and federal laws require the Jury Administrator to keep confidential certain information contained in the master list.

The legislative history of § 51-222a reveals the legislature’s concern with confidentiality. When the legislature adopted § 51-222a in 1982, it required the master list to contain “the name and address of each prospective juror” drawn from voter and motor vehicle records, 1982 Conn. Pub. Acts No. 82-11, § 3(c), but did not require any other identifying information. In 1996, when the legislature expanded the source lists to include not only electors and motor vehicle operators, but also motor vehicle owners, state income tax payers, and public assistance and unemployment compensation recipients, it added a proviso that information provided to the Jury Administrator would be “subject to any provision of the general statutes prohibiting the disclosure of the identity of individuals.” 1996 Conn. Pub. Acts No. 96-179 § 3(b). During House debate on the bill, Representative Villano expressed concern about the Jury Administrator’s ability to maintain the confidentiality of the source lists, asking “[h]ow will the jury administrator, once these lists are disbursed, assure the confidentiality of those lists so they don’t end up all over the place and in marketers hands and any other place where they shouldn’t be?” 39 Conn. H. R. Proc., pt. 16, 1996 Sess. 5700 (remarks of Representative Villano). Representative Lawlor responded, “I don’t really know. I assume they will use whatever system they have currently in place to keep them confidential, but no specific system was discussed.” 39 Conn. H. R. Proc., pt. 16, 1996 Sess. 5700 (remarks of Representative Lawlor). In so stating, Representative Lawlor indicated that he, too, assumed that the source lists were confidential and should remain confidential in the hands of the Jury Administrator.

In 1997, the legislature amended § 51-222a to expand the information in the source lists to include the social security numbers and birth dates of potential jurors, presumably to facilitate the elimination of duplicate names in the master list. Specifically, the amendment stated that the source lists provided to the Jury Administrator “shall include, at a minimum, the name, address and, if available, the federal social security number and date of birth of each person on such list or the reason for the unavailability.” 1997 Conn. Pub. Acts No. 97-200, § 6(a). In the same Act, the legislature eliminated the proviso that the lists would be subject to any provision of the general statutes prohibiting the disclosure of the identity of individuals, and amended the state tax laws to permit the Commissioner of Revenue Services to disclose to the Jury Administrator the names, addresses, social security numbers, and birth dates of taxpayers. Id. at § 1, amending Conn. Gen. Stat. § 12-15. The amendment to the tax laws made clear, however, that, outside of an enforcement context, the Judicial Branch was prohibited from further disclosing any such tax return information except for “the names and addresses of jurors or potential jurors and the fact that the names were derived from the list of taxpayers pursuant to chapter 884 [governing jury selection].” 1997 Conn. Pub. Acts No. 97-200, § 1(a), codified at Conn. Gen. Stat. § 12-15(b)(1)(B). In other words, even though the Commissioner of Revenue Services is authorized to disclose taxpayers’ social security numbers and birth dates to the Jury Administrator, the Judicial Branch is prohibited from further disclosing that information. Pursuant to § 12-15, the only tax return information that the Judicial Branch may disclose outside of an enforcement context is the names and addresses of jurors or potential jurors and the fact that the names were derived from the list of taxpayers.⁴

Federal law also imposes confidentiality requirements on the Jury Administrator. Specifically, 42 U.S.C. § 405(c)(2)(C)(viii)(I) provides that:

Social security account numbers and related records that are obtained or maintained by authorized persons pursuant to any provision of law enacted on or after October 1, 1990, shall be confidential, and no authorized person shall disclose any such social security account number or related record.

42 U.S.C. § 405(c)(2)(C)(viii)(I).⁵ The definition of  “authorized person” includes “an officer or employee of any State . . . or agency of a State.” 42 U.S.C. § 405(c)(2)(C)(viii)(III). Although the law permits States to use social security numbers for the purpose of “[i]dentifying duplicate names of individuals on master lists used for jury selection purposes” and “[i]dentifying on such master lists those individuals who are ineligible to serve on a jury by reason of their conviction for a felony,” 42 U.S.C. § 405(c)(2)(E), the language of 42 U.S.C. § 405(c)(2)(C)(viii)(I), quoted above, requires the Jury Administrator to keep all social security numbers that he obtains confidential and not publicly disclose them.

          Having concluded that state and federal law prohibit the Jury Administrator from disclosing the social security numbers and birth dates of potential jurors, as well as personal information other than names and addresses that might have been gleaned from tax return information, the question arises as to whether the Jury Administrator is required to disclose the remaining, non-confidential information contained in the master list. We conclude that he is not required to make such a disclosure.

          As noted above, whether government documents must be disclosed in Connecticut is governed by FOIA, which provides that “[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency . . . shall be public records and every person shall have the right to (1) inspect such records . . . (2) copy such records . . . or (3) receive a copy of such records.” Conn. Gen. Stat. § 1-210(a).

The term “public agency” as used in § 1-210 includes “any judicial office, official, or body or committee thereof,” Conn. Gen. Stat. § 1-200(1), and therefore includes the Jury Administrator because the Jury Administrator is appointed by the Chief Court Administrator of the Judicial Branch. Conn. Gen. Stat. § 51-10. The definition is qualified, however, by the statement that it only applies to any such judicial office, official, body or committee “with respect to its or their administrative functions.” Conn. Gen. Stat. § 1-200(1)(A)(emphasis added). Given this qualification, it is necessary to determine whether the compilation of the master list falls within the scope of the Jury Administrator’s “administrative functions.” 

          Last year, in Clerk of the Superior Court, Geographical Area Number Seven v. Freedom of Information Commission, 278 Conn. 28 (2006), the Connecticut Supreme Court considered the meaning of the term “administrative functions” in Conn. Gen. Stat. § 1-200(1)(A). At issue was whether records of criminal and motor vehicle cases, including the names and docket numbers of pending cases, as well as lists of the filings and orders entered in those cases, were public records subject to disclosure under FOIA. In analyzing the issue, the Court noted that FOIA, as originally enacted, did not apply to the constitutional courts because the legislature recognized the “grave constitutional problem in legislative rule-making for constitutional courts.” Id. at 38. Although the legislature subsequently extended FOIA to encompass the judicial branch’s “administrative functions,” that phrase, according to the Court, had to be “construed narrowly.” Id. at 39. Stating that record keeping is not inherently administrative, and that “[i]t is essential for the independence of the judicial branch that the courts have control over court records and that the other branches of government not interfere with that control,” id. at 52, the Court concluded that “the judicial branch’s administrative functions consist of activities relating to its budget, personnel, facilities and physical operations and that records unrelated to those activities are exempt.” Id. at 53. Because the criminal and motor vehicle records that were being sought in Clerk did not relate to any of these activities, the Court concluded that they were not subject to disclosure under FOIA.

          Under the narrow definition of "administrative functions" in Clerk, we conclude that the master jury list is not subject to disclosure under FOIA because it does not relate to the judicial branch’s “budget, personnel, facilities and physical operations” and therefore is not within the scope of the branch’s administrative functions. Clerk, 278 Conn. at 53.⁶ 

          Although we conclude that FOIA does not require the public disclosure of any information on the master list, federal law must also be considered. As the Clerk Court pointed out, information that is not disclosable under FOIA may nonetheless be subject to disclosure under the First Amendment. Clerk, 278 Conn. at 42-43.

          In a situation very similar to the present one, the Oregon Supreme Court in Jury Service Resource Center v. De Muniz, 134 P.3d 948 (Ore.), cert. denied, 127 S. Ct. 403 (2006), considered whether the First Amendment guarantees a right of access to master jury lists. The plaintiffs in the case were seeking access to “jury pool records,” which consisted of “source lists,” “master lists,” and “term lists.” The source lists came from motor vehicle and election records, as well as other sources approved by the chief justice that represented a fair cross section of the population. The master lists consisted of names selected at random from the source lists, and included both names and addresses. The term lists were names and addresses selected at random from the master lists before the beginning of a court term.

          In response to the plaintiffs’ claim that they had a First Amendment right of access to the three types of lists that made up Oregon’s jury pool records, the De Muniz court surveyed relevant U.S. Supreme Court caselaw and determined “that the First Amendment encompasses a public right to observe the workings of at least some parts of the administration of justice, particularly criminal trials.” De Muniz, 134 P.3d at 951. As the Supreme Court has explained, “public access to criminal trials permits the public to participate in and serve as a check upon the judicial process – an essential component in our structure of self-government.” Id. at 952, quoting Globe Newspaper v. Superior Court, 457 U.S. 596, 606 (1982).

          The De Muniz court further noted, however, that the First Amendment right of access to criminal proceedings “is not absolute.” De Muniz, 134 P.3d at 952, quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9 (1986)(“Press-Enterprise II”). To determine whether a right of access exists, the Supreme Court considers “experience and logic.” The “experience” inquiry focuses on “whether the place and process have historically been open to the press and general public.” Press-Enterprise II, 478 U.S. at 8. The “logic” inquiry is “whether public access plays a significant positive role in the functioning of the particular process in question.” Id. at 8. If the answer to both questions is yes, then the particular process is presumptively open unless a showing is made that closure is essential to preserve higher values and is narrowly tailored to serve that interest. Id. at 9-10, 13-14.

          Applying this test to the question before it, the De Muniz court found that “[a]lthough historical evidence supports the idea that trials, including the process of selecting particular jurors at the threshold of trial, were open to the public, the process of selecting potential jurors has never been open in that way.” De Muniz, 134 P.3d at 953 (emphasis added). “At English common law, the task of preliminarily selecting jurors was delegated to the discretion of a trusted public official,” and even though the American system included statutory standards that limited discretion, the court knew of “no authority that permitted members of the public to scrutinize any preliminary or tentative lists that may have led to the final one.” De Muniz, 134 P.3d at 953.

          Turning to the question whether public access to lists of potential jurors played a significant positive role in the actual functioning of the jury selection process, the De Muniz court concluded that it did not. In reaching this conclusion, the court distinguished Press-Enterprise v. Superior Court, 464 U.S. 501, 508 (1984)(“Press-Enterprise I”), and Press-Enterprise II, in which the Supreme Court held that the public had a right of access to voir dire proceedings and preliminary hearings.  As the De Muniz court explained:

[The Press-Enterprise] cases establish that the public has a right to attend criminal trials. The selection of names for the list of prospective jurors, however, is one or more (sometimes several) steps removed from the trial itself. Unlike the Press-Enterprise cases, plaintiffs here do not assert a right to view a process, such as a trial, but instead demand to see a work product that government employees have created pursuant to statutory directives. Unlike actual trials, public access plays no significant role in the official and largely rote function of collecting and winnowing names for jury lists.

De Muniz, 134 P.3d at 954. Accordingly, the court concluded that there was no First Amendment right of access to Oregon’s jury pool records. Id.

         We have found no other cases that consider whether there is a First Amendment right of access to master jury lists. Although there are cases that have considered whether there is a First Amendment right of access to the names of impaneled jurors, see, e.g., State v. Scruggs, No. CR02-0210921S, 2003 Conn. Super. Lexis 2734 (Sept. 16, 2003); State ex rel New Mexico Press Association v. Kaufman, 648 P.2d 300 (N.M. 1982); Des Moines Register and Tribune v. Osmundson, 248 N.W. 2d 493 (Iowa 1976), these cases are distinguishable from the present case because they involve jurors for a specific trial, in which public knowledge of the jurors’ identities arguably may play a significant role in insuring the impartiality of the jury towards a particular defendant. Even with regard to impaneled juries, however, some courts have found no First Amendment right to jurors’ names and/or addresses. See Gannett Co. Inc. v. Delaware, 571 A.2d 735 (Del. 1990)(no First Amendment right to impaneled jurors’ names);⁷ Commonwealth of Pennsylvania v. Long, 2007 Pa. Lexis 1151 (Pa. Supreme Ct. May 31, 2007)(no First Amendment right to impaneled jurors’ addresses, although there is such a right to their names);⁸ U.S. v. Edwards, 823 F.2d 111 (5^th Cir. 1987). Because the present case involves potential jurors and not impaneled jurors, we conclude that it is akin to De Muniz and find no reason to disagree with the De Muniz court’s conclusion that there is no First Amendment right of access to any information in the master list.

          Having found no state or federal law that requires the disclosure of the master list, we conclude that the Judicial Branch is not required to disclose it pursuant to the Freedom of Information Act.  If Judicial decides to disclose the master list to the public, certain information must be redacted. In particular, as discussed above, federal law prohibits the disclosure of any prospective juror’s social security number, as well as related records that indicate “directly or indirectly, the identity of any individual with respect to whom a social security account number or a request for a social security account number is maintained.” 42 U.S.C. § 405(c)(2)(C)(viii). In addition, Conn. Gen. Stat. § 12-15 prohibits the Judicial Branch from disclosing any taxpayer information other than the names and addresses of jurors or potential jurors, and the fact that the names were derived from the list of taxpayers. Accordingly, all birth dates in the master list should be redacted, along with any other information, other than names and addresses, that could have been derived from taxpayer information provided to the Administrator by Revenue Services. Furthermore, it should be noted that FOIA prohibits the disclosure of the residential addresses of judges, police, prosecutors, firefighters, Criminal Justice inspectors, and employees of the Department of Correction, Department of Children and Families, Board of Pardons and Parole, the Judicial Branch, and the Commission on Human Rights and Opportunities. Conn. Gen. Stat. § 1-217. Although we have concluded that FOIA does not apply in the present context, if the Judicial Branch decides to release information, it would nonetheless be prudent to redact such addresses in order to protect the privacy and security of these individuals. If all such information is redacted from the master list, we conclude that the Judicial Branch may, but is not required to, disclose it to the public.

Very truly yours,

RICHARD BLUMENTHAL

ATTORNEY GENERAL