Attorney General: The Honorable Joseph Pellegrino, Supreme Court Building, 2002-001 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

January 15, 2002

The Honorable Joseph Pellegrino
Chief Court Administrator
Supreme Court Building
231 Capitol Avenue
Hartford, CT 06106

Dear Judge Pellegrino:

Your office has asked whether the recent injunction regarding Connecticut's Sexual Offender Registration Act (SORA) issued by the United States District Court of Connecticut, and upheld by the Second Circuit, impedes in any way the implementation of Public Act 01-211, concerning victim notification. That Act requires victim notification of applications for exemption from the Sex Offender Registry or its notification requirements.1 As set forth more fully below, we conclude that Public Act 01- 211 is enforceable and not affected by the District Court's ruling.

In 1998, the Connecticut legislature enacted a broad version of what is commonly known as "Megan's Law," currently codified at Conn. Gen. Stat. §§ 54-250 et seq. The law required persons convicted of certain sexual criminal offenses to register with the State of Connecticut Department of Public Safety (DPS). The law also required the Department to maintain a centralized list of sexual offenders and to make that list available to the public both upon request and on an Internet webpage accessible to the public. The law further required individual police departments and State Police Troop offices to maintain a list of persons on the centralized registry who reside locally.

In 1999, the legislature enacted certain exemptions to the previously enacted, broadly sweeping law. First, offenders within the family of the victim and offenders 19 and under could apply to be exempt from the registration requirements altogether if the sentencing court found the registration to be unnecessary for public safety. Conn. Gen. Stat. § 54-251 et seq. Also, persons convicted between 1988 and 1998 of enumerated offenses who had never been incarcerated and who had not been convicted of any further crimes requiring registration could apply to be exempt from the dissemination of information required with regard to the registry. Conn. Gen. Stat. § 54-255.

Registrants challenged the law in federal court. In April, 2001, the District Court, Chatigny, J., while upholding the Registry itself, issued an injunction prohibiting the Department of Public Safety, the Department of Correction, and the Office of Adult Probation from disseminating the Registry to the public. Specifically, these agencies, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them, who received actual notice of this order, were permanently enjoined from:

  1. disclosing or disseminating to the public, either in printed or electronic form (a) the Registry or (b) Registry information concerning a member of the due process class if the information identifies the class member as being included in the Registry; and,
  2. identifying any member of the due process class as being included in the Registry; provided that nothing in this order shall:

    1. impair access to the Registry by law enforcement agencies and officers, including but not limited to the Connecticut Department of Correction, Board of Pardons, Board of Parole, Court Support Services Division, and Division of Criminal Justice;
    2. preclude law enforcement agencies and officers carrying out official duties from using information contained in the Registry in specific criminal investigations and prosecutions, so long as members of the due process class are not described to the public as being included in the Registry;
    3. preclude law enforcement agencies and officers carrying out official duties from disclosing or disseminating to the public information necessary to protect the public concerning a specific person, so long as members of the due process class are not described to the public as being included in the Registry; or
    4. affect the public's ability to obtain individual criminal conviction history records pursuant to Conn. Gen. Stat. § 1-210 et seq. and 29-11 et seq.

The Court further enjoined the State Police from making the Registry information on its Internet site available to anyone but law enforcement authorities, and prohibited local police departments and state police troops from making Registry information available to members of the public upon request. The District Court's order was upheld by the Second Circuit. Poe v. Public Safety, 271 F.3d 38 (2d Cir. 2001).

Your question is whether certain protections for the victims of sexual offenders contained in Public Act 01-211 are prohibited or affected in any way by this injunction. In Public Act 01-211, the legislature set forth additional procedures for persons applying for the exemptions from the Registry described above. Under this Act, an applicant must notify the Office of Victim Services and the Department of Correction of the filing of an application for exemption, and those agencies in turn must notify any victim of the offender who has requested notification of such a filing. Public Act 01-211. The Court is then required to consider any information or statement provided by the victim in deciding the application for exemption. Public Act 01-211.

Specifically, you ask whether notification to the victim in accordance with Public Act 01-211 would violate the permanent injunction prohibiting dissemination of the Registry to the public. For the reasons that follow, we believe that the Branch may and should implement Public Act 01-211 as it regards victim notification.

By its terms the Order does not prohibit continued compilation of the Registry. According to your office, when a registrant invokes the statutory procedures and files an application for exemption from the Registry, he identifies himself, in a publicly available court document, as a member or potential member of the Registry. The registrant must be presumed to act with knowledge of existing law, Hebb v. Zoning Board of Appeals, 150 Conn. 539, 542 (1963), and therefore to know that victims must be notified of the application. Under the circumstances you describe, your agency would merely be passing along that information to the victim -- information already made public by the registrant. The registrant's affirmative act in placing his status as a registrant "at issue" is analogous to the waiver of a privilege that results when a party places privileged information "at issue" by virtue of an affirmative act.

The "at issue" waiver doctrine was originally articulated in Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975), cited in U.S. v. Bilzerian, 926 F.2d 1285 (2d Cir.), cert. denied, 502 U.S. 813 (1991). Under this doctrine, a party puts otherwise confidential information at issue when:

  1. assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party;
  2. through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case;
  3. application of the privilege would have denied the opposing party access to information vital to his defense.

Hearn, supra, 68 F.R.D. at 581. See also Matsushita Electronics Corp. v. Loral Corp., 1995 U.S. Dist. LEXIS 12880, 1995 WL 527640 (S.D.N.Y. 1995).

Applying the "at issue" factors to an application for exemption from the Registry compels a conclusion that a registrant (or one who is by law obliged to become a registrant) applying for an exemption has impliedly "waived" any protection from public disclosure provided by the federal injunction. The registrant undertakes the affirmative act of applying for an exemption from the Registry in order that his information will not even be available to law enforcement. By bringing the application and initiating the hearing process, he thereby sets in motion himself, within his criminal case, the very process that makes this information relevant. This application includes in it the fact that he is subject to registration requirements. Said another way, the procedure the registrant has set in motion comes with all of the attendant procedures contained in the statute, including victim notification. Most importantly, to keep the fact that such an application has been filed a secret from an offender's victim would deny the victim, who in this instance stands in a position similar to an opposing party, even the opportunity to be heard by the Court charged with making the difficult decision whether to set aside the statutory mandate for a particular registrant.

We therefore do not interpret the District Court's Order as intending to give those convicted of crimes involving a sexual element a status beyond that of persons convicted of crimes lacking such an element, nor to give victims of sexual offenses a lesser status than victims of other crimes. Connecticut's Constitution provides victims of crime with certain rights, including the right to be present at all court proceedings the accused has the right to attend, as well as the right to information about the arrest, conviction, sentence, imprisonment and release of the accused. Art. XXIX, Connecticut Constitution. Just as a victim may comment on and participate in the sentencing of the offender, there is no reason to preclude the victim from commenting on and participating in a proceeding to consider the exemption application. The District Court's Order does not affect these rights, nor does it mandate that an application for exemption from the Registry be kept a secret from the victim.

Moreover, informing a victim of an application for an exemption does not constitute an action by a state agency or actor that identifies the applicant to the public as a member of the Registry. Obviously the victim is already aware that the offender has been convicted of a crime requiring registration. The notification in question here merely informs the victim that the offender has requested a change in his or her legal status with regard to the Registry. Thus, this notification, specific to one offender and his or her particular victim(s), may be seen as analogous to a request for criminal records pursuant to Conn. Gen. Stat. §§ 1-210 or 29-11, as specifically permitted by the Court in its ruling.2

Consequently, we conclude that the Court’s order prohibiting dissemination of Registry information to the public does not preclude straightforward notification to the victim of an application filed by the offender for exemption from the Registry. Both the Department of Correction and the Office of Victim Services should honor any request by a victim to receive notification by an offender to be exempt from a portion of the Registry.

To adhere as closely as possible to the District Court’s intent in issuing the injunction, the notice to the victim should be crafted in terms that do not expressly identify an applicant as a member of the registry. Notification can state, for example, that the Court has received an application from an individual seeking to be exempt from the requirements of Conn. Gen. Stat. §§ 54-250 et seq. "to the extent that he may be subject to those requirements," and could include forwarding to the victim the application itself, already a public court document, with only a brief description, describing the victim's rights to present his or her views to the court, and otherwise letting the application speak for itself.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Lynn D. Wittenbrink
Assistant Attorney General


1Given the current injunction, described below, applications to be exempt only from the notification requirements of Conn. Gen. Stat. § 54-250 et seq. would be pointless. The only application that would appear to be justiciable while the injunction exists would be an application to be wholly exempt from the registration requirements.

2The Order expressly states that it is not intended to and does not "preclude law enforcement agencies and officers carrying out official duties from using information contained in the Registry in specific criminal investigations and prosecutions, so long as members of the due process class are not described to the public as being included in the Registry." By statute, registration is automatically required upon conviction. It is only the affirmative act of a registrant in seeking to be exempt from this requirement that identifies him as such, and prompts your agency to pass along that information to the victim pursuant to Public Act 01-211. Notification of the victim may thus be considered a "carrying out [of] official duties . . . using information contained in the Registry in a specific" criminal proceeding.


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