Filing Number: 09-08
Subject: Confidentiality
Keywords: communication, complaint, confidentiality provisions, constitution, disclosure, penalty
Decision By: Commissioners: Thomas P. Collins, Sr., Gerald Turkel, V. Eugene McCoy, John McMahon
Contact Email: admin@nccethics.org
 
Status: Active

Question:

             The requester has asked two related questions: whether the subject of a complaint has a privilege to enforce the prohibition in New Castle Code Section Sec. 2.04.103 J against disclosure of information deemed confidential by the Commission after he or she has voluntarily confided such information to another person; and whether the Ethics Code or Commission rules prohibit the person to whom the subject has confided such confidential information from revealing it.

Conclusion:

             The subject of a complaint does not have authority to enforce the prohibition on disclosure of information deemed confidential by the Ethics Commission. Neither the Ethics Code nor the Commission rules prohibit a person who has no communicative connection with the Commission and to whom a subject voluntarily discloses confidential information from revealing that information. When the subject discloses confidential information which negatively affects a party who has a communicative connection with the Commission, considerations of fairness mitigate against imposing sanctions regarding a response from that party as long as the reply includes only limited and relevant confidential information.

Facts:

             The requester is subject to the New Castle County Ethics Code and asks for an interpretation of New Castle Code Section Sec. 2.04.103 J in order to guide the conduct of members of a County agency in matters relating to Commission complaint investigations.

Code or Prior Opinion:

             New Castle County Section Sec. 2.04.103 J states: "No person shall disclose or acknowledge to any other person any information relating to a complaint, preliminary inquiry, investigation, hearing or petition for reconsideration which is before the Commission. However, a person may disclose or acknowledge to another person matters held confidential in accordance with this subsection when the matters pertain to any of the following:" The code then recites 9 exceptions, one of which, subsection (7), permits the subject of the proceedings to disclose or acknowledge such information to other persons.1 There are no prior Advisory Opinions regarding the subsection (7) provisions.

Analysis:

Exception is not a privilege
 
            The statutory scheme vests enforcement authority for Section 2.04.103J, like other provisions of the Ethics Code, in the Ethics Commission. See, e.g., Sec. 2.04.103K (remedy for filing a frivolous complaint) and Sec. 2.04.104 (Sanctions). The sole unique right given to the subject in regard to confidentiality under Section 2.04.103 J is the subsection (7) is an exception from the prohibition on disclosure. The subject has no privilege to select when enforcement should occur nor any direct enforcement authority.
 
First Amendment
 
            Any interpretation of Sec. 2.04.103J must be governed by constitutional considerations since it regulates speech and its content. The First Amendment to the Constitution requires that a statute regulating such speech must reflect a compelling government interest and must be narrowly tailored. Pleasant Grove City v. Summum, 129 S.Ct. 1125, 1132 (2009); Boos v. Barry, 485 U.S. 312, 321 (1988); U.S. v Lee, 455 U.S. 252, 257 (1982). In light of this constitutional imperative, the New Castle County Commission has determined that application of Section 2.04.103J is limited to persons who have a communicative connection with the Commission: those persons providing information to or receiving information from the Commission. Additionally, the Commission does not believe Section J reaches communications made by such persons if the information they disclose publicly comes from a preexisting or independent source, even if it is part of the information transmitted to or from the Commission. See e.g., Stilp v. Contino, 2009 WL 1842087 *2 (M.D.Pa. June 29, 2009) in which the Pennsylvania Ethics Commission similarly interprets an almost identical ethics statute.2
 
Subsection (7) Exception
 
            Under the exception recited in Sec. 2.04.103J (7), a subject may elect to transmit to another party confidential information about a complaint, preliminary inquiry, investigation, hearing or petition for reconsideration which is before the Commission. However, given the limited applicability of Section J on First Amendment grounds, if that third party has no communicative relationship with the Commission and broadcasts the information to others, that broadcast and any rebroadcast does not fall within the prohibition of Section J or the sanction authority of the Commission.
 
            Alternatively, even if the statute were held to apply to third parties who had no communicative connection with the Commission, if the subject voluntarily transmitted confidential information to persons not expected to keep confidences, like the media, any protection provided by Section J clearly would dissipate. As the Supreme Court held long ago in the case of spousal privilege, "Where a communication, because of its nature or circumstances under which it was made, was obviously not intended to be confidential, it is not a privileged communication". Wolfe v. U.S., 291 U.S. 7 (1934).
 
            A similar rule applies even in other stringently enforced evidentiary privilege cases, such as attorney-client privilege. If a person voluntarily discloses protected information to a third party, he "waives attorney client privilege even if the third party agrees not to disclose the communication to anyone else." Westinghouse Elec. Corp. v. Republic of Philipines, 951 F.2d 1414 (3d Cir. 1991)(appeal of decision regarding waiver of work product privilege and attorney-client privilege in voluntary disclosure to the SEC).
 
            The same logic applies when the subject makes disclosures in the course of a lawsuit. When information is filed with a court, with limited exceptions such as family courts or specialized federal national security courts, information is deemed public by virtue of filing unless the court specifically directs that it be held confidential. "An unfortunate consequence of litigation is that information sometimes surfaces that parties would prefer to keep in the dark." Kahanna v. McMinn, 2006 WL1388744 *40 (Del. Ch. May 9, 2006)(breach of fiduciary duty claim in which the defendant introduced confidential information into the litigation).
 
Principles of Fairness
 
            "[P]rinciples of waiver and fairness" mandate that "the party holding the privilege cannot use it as both a sword and a shield". Baxter, Int'l. v. Rhone-Poulenc Rorer, Inc., 2004WL2158051 at *3 (Del. Ch. Sept. 17, 2004)(motion to compel production of privileged documents). When a subject voluntarily releases confidential information to justify or explain his or her conduct, the subject cannot demand that the Commission should enforce confidentiality upon a party who does have a connection to the Commission if the subject's release negatively affects that party's interests. Of course, fairness also decrees that the affected party's reply must be limited to narrowly responsive information.

Finding:

             The subject of a complaint does not have authority to enforce the prohibition on disclosure of information deemed confidential by the Ethics Commission. Neither the Ethics Code nor the Commission rules prohibit a person who has no communicative connection with the Commission and to whom a subject voluntarily discloses confidential information from revealing that information. When the subject discloses confidential information which negatively affects a party who has a communicative connection with the Commission, considerations of fairness mitigate against imposing sanctions regarding a response from that party as long as the reply includes only limited and relevant confidential information.
 
            In issuing this Advisory Opinion, the Ethics Commission is applying the New Castle County Code of Ethics, which establishes the minimum level of ethical conduct required of County officials and employees.
 
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS 9th DAY OF SEPTEMBER 2009.
 
___________________________________
Thomas P. Collins, Sr., Chairperson
 
Decision: Unanimous

Footnotes:

1 New Castle County Code Section 2.04.103 J, in pertinent part:
No person shall disclose or acknowledge to any other person any information relating to a complaint, preliminary inquiry, investigation, hearing or petition for reconsideration which is before the Commission. However, a person may disclose or acknowledge to another person matters held confidential in accordance with this subsection when the matters pertain to any of the following:
1.     Final orders of the Commission as provided in subsection H of this Section when the order states the identity of the persons involved;
2.     Hearings conducted in public pursuant to subsection F of this Section;
3.     For the purpose of seeking advice of legal counsel;
4.     Communicating with the Commission or its staff in the course of a preliminary inquiry, investigation, hearing or petition for reconsideration by the Commission;
5.     Consulting with a law enforcement official or agency for the purpose of initiating, participating in or responding to an investigation or prosecution by the law enforcement official or agency;
6.     Testifying under oath before a governmental body or a similar body of the United States;
7.     Any information, records or proceedings relating to a complaint, preliminary inquiry, investigation, hearing or petition for reconsideration of which the person is the subject;
8.     Any information, records or proceedings necessary for processing a grievance in accordance with any applicable collective bargaining agreement; or
9.    Such other exceptions as the Commission, by rule, may direct.

2 Several courts have considered specific challenges to blanket confidentiality provisions as they apply to the disclosure of the making of an ethics complaint. The challengers have prevailed as the courts have held that a bar on disclosing complaints violates the First Amendment. Although the courts acknowledge the legitimacy of most of the governments concerns in favor of confidentiality (with the exception regarding injury to reputation), they found that those interests were not so compelling or that the provisions were not sufficiently restrictive to override the right of the public to comment on the workings of government. In the case of Stilp v. Contino, 2009WL 1842087 (M.D.Pa. June 29, 2009), the federal district court enjoined the enforcement of a prohibition almost identical to New Castle County's provision about public disclosure of the filing of a complaint. After applying First Amendment considerations to the confidentiality rationales advanced by the Pennsylvania Commission and reviewing pertinent case law from other jurisdictions, the court held that the statute's "blanket prohibition on disclosure of the fact that a complaint was filed with the Commission" was not justified. Id. at *11. See also Lind v. Grimmer, 30 F.3d 1115 (9th Cir. 1994)(blanket confidentiality not necessary to investigate breaches in Hawaii campaign finance law); Providence Journal Co. v. Newton, 723 F. Supp. 846, 852 (D.R.I. 1989)(invalidated confidentiality provision regarding disclosure of ethics complaint); Doe v. Gonzales, 723 F. Supp. 690 (S.D.Fla. 1988)(struck down confidentiality prohibition on disclosure of ethics complaint).