Attorney General: The Honorable Aaron Ment, Chief Court Administrator, 1992-019 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

July 21, 1992

The Honorable Aaron Ment
Chief Court Administrator
State of Connecticut
Judicial Department
Drawer N, Station A
Hartford, CT 06106

Dear Judge Ment:

This letter is in response to your request, dated June 10, 1992, for our opinion concerning access by researchers to identifiable bail commission information.

We understand from your letter that the Connecticut Civil Liberties Union ("CCLU") has obtained a research grant from the Initiative for Public Interest Law at Yale, Inc., to determine whether racial bias exists in the Connecticut bail system. In part, the CCLU's research proposal states that the CCLU researchers would "analyze 2000-5000 individual bail commission case files to control for the full complement of legitimate and suspected illegitimate determinants of bail settings." The proposal further indicates that an in-depth analysis would be made of 200-500 transcripts of criminal arraignment hearings drawn from the bail commission data set.

As a separate matter, we have learned from your office that the Judicial Department plans to conduct its own study of racial bias in the judicial system. Like the CCLU study, the Judicial Department's study would require access to information in the bail commissioner's files.

We understand from the chief bail commissioner that the information which the CCLU researchers are seeking from the bail commission files is contained in the bail commissioner's interview reports. These reports are only a page long, but contain considerable detail about the accused individual, including his name, address, and phone number, as well as other identifying information such as docket numbers, FBI numbers, the names of references and comments about particular arrests.

You have asked for our opinion on the following questions:

(a) Does Conn. Gen. Stat. § 54-63d permit the chief bail commissioner to adopt regulations which would allow the CCLU or other researchers to access data from the bail commission files in order to do the type of research set forth in their research proposal?

(b) If regulations cannot be adopted to allow such access, would it be permissible to hire the CCLU researchers as interns or volunteers working under the chief bail commissioner to conduct the proposed research?

(c) Would it be permissible for the state to hire researchers to work under the chief bail commissioner in order to conduct the Judicial Department's proposed study?

We conclude that the Connecticut General Statutes do not permit the chief bail commissioner to allow the CCLU researchers to access bail commission information unless all identifying information is removed. We further conclude that, given the circumstances, Section 54-63d would not permit the bail commission to hire the CCLU researchers as volunteers in order to disclose identifying information to them. The researchers hired to conduct the Judicial Department study would only have access to identifying bail commission information if they were employees of the bail commission.

Section 54-63d of the Connecticut General statutes concerns the disclosure of information by the bail commission.1 Section 54-63d provides that when a bail commissioner is notified by the police that an arrested person has not posted bail, the bail commissioner must conduct an interview and investigation for the purpose of determining the appropriate conditions for release. Subsection (c) of Section 54-63d is explicit that:

Except as provided in subsection (d) of this section, all information provided to the office of the bail commission shall be for the sole purpose of determining and recommending the conditions of release, and shall otherwise be confidential and retained in the files of the office of the bail commission, and not be subject to subpoena or other court process for use in any other proceeding or for any other purpose.

Conn. Gen. Stat. § 54-63d(c) (emphasis added).

The exceptions set forth in subsection (d) provide that:

The chief bail commissioner shall establish written procedures for the release of information contained in reports and files of the office of the bail commission .... Such procedures shall allow access to (1) non-identifying information by qualified persons for purposes of research related to the administration of criminal justice; (2) all information provided to the office of the bail commissioner by probation officers for the purposes of compiling pre-sentence reports; and 3) all information provided to the office of the bail commission concerning any person convicted of a crime and held in custody by the department of correction.

Conn. Gen. Stat. § 54-63d(d) (emphasis added).

In your first question you ask if the chief bail commissioner may adopt regulations which would allow the CCLU or other researchers to access data from the bail commission files. Any state agency can only act within the scope of its statutory authority and any regulations adopted by an agency must be consistent with that authority. Paige v. Welfare Commissioner, 170 Conn. 258, 365 A.2d 11 18 (1975). Therefore we must look at the language of Conn. Gen. Stat. § 54-63d in order to determine whether or not the chief bail commissioner has the authority to allow CCLU or other researchers to access data from the bail commission files.

In construing a statute, established rules of statutory construction require that courts search for the legislature's intent in the words of the statute. Demar v. Open Space and Conservation Commission of Rocky Hill, 211 Conn. 416, 559 A.2d 1103 (1989). If the language of the statute is clear, it is assumed that the words themselves express the intent of the legislature and thus there is no need to further construe the statute. Anderson v. Ludgin, 175 Conn. 545, 400 A.2d 712 (1978).

In the present case, the language of Conn. Gen. Stat. § 54-63d(c) is clear. All information provided to the office of the bail commission "shall be for the purpose of determining and recommending the conditions of release, and shall otherwise be confidential..." except as provided in subsection (d) of the statute. The use of the word "shall" means that the requirement is mandatory, as opposed to permissive. Blake v. Meyer , 145 Conn. 612, 145 A.2d 584 (1958). The bail commissioner has no choice but to keep bail commission information confidential unless release is permitted under subsection (d) of Section 54-63d.

The language of subsection (d) of Conn. Gen. Stat. § 54-63d is equally clear. The chief bail commissioner "shall allow access to (1) non-identifying information by qualified persons for purposes of research related to the administration of criminal justice ..." pursuant to written procedures established by the commissioner. Conn. Gen. Stat. § 54-63d(d). Although the word "non-identifying" is not defined in the statute, it must be construed according to its commonly accepted meaning. Pintavalle v. Valkanos , 216 Conn. 412, 581 A.2d 1050 (1990). "Identify" means to establish the identity of Webster’s New International Dictionary 2d Edition, p. 1236. "Non" implies a negative. Id. at 1660. Thus non-identifying information is information which will not establish the identity of the accused. Clearly the bail commissioner may only grant researchers access to information which will not identify the accused. The only entities to whom identifying information may be disclosed are probation officers who are compiling pre-sentence reports, Conn. Gen. Stat. § 54-63d(d)(2), the Department of Correction when it is holding a convict in custody, Conn. Gen. Stat. § 54-63d(d)(3), and courts, prosecuting authorities and the defendant, Conn. Gen. Stat. §§ 54-63d(a) and (b). Because we cannot read into the statute provisions which are not clearly stated, Houston v. Warden, Connecticut Correctional Institution, Somers, 169 Conn. 247, 363 A.2d 121 (1975), but rather must rely on the plain language as written, we conclude that all bail information must be kept confidential and may only be released to researchers if it is "non-identifying". Thus any regulations adopted by the chief bail commissioner must limit access by CCLU or other researchers to non-identifying information in bail commission files.

In order to release any non-identifying information to the CCLU researchers, the bail commission's office would have to delete all identifying information from the bail commissioner's interview reports. A bail commission employee could black out all identifying information such as the accuser’s name, address and phone number. The chief bail commissioner, however, would have to exercise his discretion to determine, in each case, whether other details in the report, given the circumstances of the case, would enable a researcher to identify the accused individual. If so, this information would also be "identifying" and could not be disclosed.

In addition, Conn. Gen. Stat. § 54-63d(d) requires the chief bail commissioner to establish written procedures for the release of information in the commission's files. The chief bail commissioner has established written procedures which track the language of Section 54-63d(d) and provide for the release of non-identifying information to qualified persons for the purposes of research related to the administration of criminal justice.

"Procedures for the Disclosure of Information Collected on Individuals by the Office of the Bail Commission" § IV. Our review of these procedures indicates that they are consistent with the provisions of Conn. Gen. Stat. §54-63d. They provide that the chief bail commissioner must exercise his discretion in determining whether individuals requesting information are qualified researchers and whether, their proposed research is related to the administration of criminal justice. The procedures further provide for a written agreement between the researchers and the chief bail commissioner specifying the purpose of research, the precautions to be taken to ensure the security and confidentiality of the information, and the sanctions for improper disclosure. Id. at § IV(c). While not required by Conn. Gen. Stat. § 54-63d, such agreements would help to ensure the confidentiality intended by the legislature. If the chief bail commissioner releases non-identifying bail commission information to the CCLU researchers, these procedures should be followed.

Your second question concerns the possibility of hiring CCLU researchers as volunteers working under the chief bail commissioner in order to conduct the proposed research. The purpose of hiring the researchers would be to allow them access to records which would otherwise be confidential pursuant to Conn. Gen. Stat. § 54-63d(c).

It is a well-established principle that a statute must not be construed so as to thwart its legislative purpose. Turner v. Turner, 219 Conn. 703, 595 A.2d 297 (1991); Evening Sentinel v. National Organization for Women, 168 Conn. 26, 357 A.2d 498 (1975). As discussed above, the purpose of Conn. Gen. Stat. §§ 54-63d(c) and (d) is to keep bail commission information confidential and, in particular, to prevent the disclosure of information which would identify the accused individual except in extremely limited circumstances. Given this obvious legislative intent, construing the statute so as to allow access to identifying information by individuals who would otherwise not have access, would thwart the purpose of the statute.

As written, Section 54-63d limits the disclosure of identifying bail commission information to a very few individuals and entities outside the bail commission's office. Although not stated, the bail commission's employees must, by necessity, have access to identifying information in order to compile the bail commission's records and to perform the functions which are necessary to carry out the commission's duties and responsibilities. There is no legal justification, however, for construing the statute to permit access to identifying information by anyone other than those entities mentioned in the statute and the commission's employees.

The use of volunteers in state government is addressed in Conn. Gen. Stat. §§ 4-61hh to 4-61mm. A volunteer is "any individual who provides goods or services to any state agency without compensation therefore." Conn. Gen. Stat. § 4-61hh(l). Although this office has concluded in the past that volunteers are "employees" for the purposes of certain statutes, but not for others, 83 Conn. Op. Atty. Gen. (11/20/83) (volunteers are protected from liability under Section 4-165 but are not covered by the Workers' Compensation Act); 87 Conn. Op. Atty. Gen. 17 (3/11/81), in this case we conclude that the CCLU researchers would not be functioning as employees.

An "employee" is "one who works or is in the service of another and whose work as to extent and manner is directed by that other." Tedesco v. Turner & Seymour Manufacturing Co., 19 Conn. Supp. 192, 200, 110 A.2d 650 (1954). Stated otherwise, an employee "is subject to the will of that other in the mode and manner in which the service is to be done and in the means to be employed in its accomplishment as well as in the result to be obtained." Kinsman v. Hartford Courant Co., 94 Conn. 156, 159, 108 A. 562 (1919).

In the case of the CCLU researchers, however, it is our understanding that the researchers would not be compiling bail commission records or performing other functions which are necessary to carry out the commission's duties or responsibilities. Instead they would be conducting their own research, for their own purposes, utilizing their own methods. They would not be subject to the will of the bail commission as to the mode or manner of their research, or the results to be obtained. Under these circumstances, it is our opinion that the "volunteers" would not be functioning as employees and thus any disclosure of identifying information to them on the pretense that they are employees would be to thwart the purpose of Conn. Gen. Stat. § 54-63d. As previously discussed, the researchers could review non-identifying information from redacted files, pursuant to written procedures of the chief bail commissioner.

Your third question asks whether the state could hire researchers to work under the chief bail commissioner in order to conduct research for the Judicial Department. Although the state may hire researchers and provide them access to non-identifying information, there remains the issue whether those researchers may have access to identifying bail commission information.

As our analysis of the second question indicates, the answer to this question depends on whether the researchers are bail commission employees. Whether the researchers are bail commission employees depends on how the research will be directed and carried out, and for what purpose.

If the researchers are hired by the chief bail commissioner to do a study related to the administration of criminal justice, under his direction, according to his methods, for his purposes, we have no doubt that the researchers could have access to identifying bail commission information. However, given the obvious legislative intent to keep identifying bail commission information confidential, and not to disclose it even to employees of other state agencies except under extremely limited circumstances, we find no legal basis for construing Conn. Gen. Stat. § 54-63d to permit access to identifying bail commission information by researchers who are not bail commission employees. Without the details of the proposed relationship between the researchers and the bail commission, we cannot conclude whether the researchers hired to conduct the Judicial Department study would be employees of the bail commission and therefore permitted to access identifying bail commission information.

In summary, we conclude that Conn. Gen. Stat. § 54-63d does not permit the disclosure of identifying bail commission information to the CCLU researchers, even if they are hired by the bail commission as volunteers to conduct their research. Researchers hired to conduct the Judicial Department's study would only have access to identifying bail commission information if they were conducting the study as bail commission employees. Finally, as to disclosure of non-identifying bail commission information, the chief bail commissioner must follow the written procedures which he has established for the release of such information.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Jane R. Rosenberg
Assistant Attorney General

RB/JRR/jb


1 Bail commission information is specifically excluded from the definition of criminal history record information contained in Conn. Gen. Stat. § 54-142g. Therefore, the provisions of Conn. Gen. Stat. § 54-142c and §§ 54-142g to 54-142p concerning criminal records do not apply to bail commission information. Likewise, the general disclosure provisions of the state Freedom of Information Act, Conn. Gen. Stat. § 1-18a et seq., do not apply because they are superseded by the more specific provisions of Conn. Gen. Stat. § 54-63d. Conn. Gen. Stat. § 1-19.


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