Brown Inc. v. Blumenthal
| Citation | 297 Conn. 710,1 A.3d 21 |
| Decision Date | 10 August 2010 |
| Docket Number | No. 18334.,18334. |
| Court | Supreme Court of Connecticut |
| Parties | BROWN AND BROWN, INC. v. Richard BLUMENTHAL, Attorney General. Richard Blumenthal, Attorney General v. Brown and Brown, Inc. |
297 Conn. 710
1 A.3d 21
BROWN AND BROWN, INC.
v.
Richard BLUMENTHAL, Attorney General.
Richard Blumenthal, Attorney General
v.
Brown and Brown, Inc.
No. 18334.
Supreme Court of Connecticut.
Argued March 16, 2010.
Decided Aug. 10, 2010.
COPYRIGHT MATERIAL OMITTED.
COPYRIGHT MATERIAL OMITTED.
Michelle H. Seagull, with whom were William M. Rubenstein, Hartford, and Kelly A. Burns, for the appellant (plaintiff in the first case, defendant in the second case).
Matthew J. Budzik, assistant attorney general, with whom were Michael E. Cole, assistant attorney general, and, on the brief, Arnold B. Feigin, assistant attorney general, for the appellee (defendant in the first case, plaintiff in the second case).
Aaron S. Bayer, Robert M. Langer, New Haven, Michael Menapace, Hartford, and Alison M. Weir, New Haven, filed a brief for the Connecticut Business and Industry Association, Inc., et al., as amici curiae.
James Sicilian, Jason S. Weathers, Hartford, Ben Robbins, Martin J. Newhouse and Jo Ann Shotwell Kaplan filed a brief for the New England Legal Foundation as amicus curiae.
ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js. *
ROGERS, C.J.
The principal issue in this appeal 1 is the scope of the confidentiality protections afforded by General Statutes § 35-42, 2 a provision that authorizes
the attorney general to demand, prior to the institution of any action or proceeding, discovery
from any person 3 whom he has reason to believe has violated any portion of the Connecticut Antitrust Act (antitrust act), General Statutes §§ 35-24 through 35-49. 4 The plaintiff, 5 Brown
and Brown, Inc., appeals from the summary judgment of the trial court, rendered in favor of the defendant, Richard Blumenthal, in his official capacity as the state attorney general. 6 The plaintiff claims that the trial court improperly construed the confidentiality provisions of § 35-42. We agree and, accordingly, reverse the judgment of the trial court. 7
The following undisputed facts and procedural history are relevant. The plaintiff is an independent insurance intermediary that provides a variety of insurance and reinsurance products and services to corporations, public entities, institutions, trade professionals, associations and individual clients. On December 19, 2005, as part of an investigation of possible antitrust violations in the insurance industry, the defendant, pursuant to the authority of § 35-42(a) and (e)(2), respectively,
issued a subpoena duces tecum and interrogatories to the plaintiff. According to the plaintiff, the defendant requested materials and information that contained trade secrets and other valuable commercial and financial information. 8
Pursuant to § 35-42(c), documents furnished to the defendant under § 35-42(a) “shall not be available to the public....” Pursuant to § 35-42(e)(2), interrogatory responses “shall not be available for public disclosure.” Section 35-42(g) directs, however, that “[t]he Attorney General shall cooperate with officials of the federal government and the several states, including but not limited to the sharing and disclosure of information and evidence obtained under the purview of this chapter.” 9
In the course of the parties' discussions regarding the plaintiff's compliance with the subpoena, it became apparent that they disagreed in their interpretation of the foregoing provisions. The parties had agreed that the plaintiff would produce responsive material in stages, and, on June 2, 2006, the plaintiff produced the first stage, comprising some 12,000 documents. Thereafter,
the parties attempted to reach an agreement regarding confidentiality, but ultimately were unsuccessful. Instead of producing the second stage of material, which was due on August 31, 2006, the plaintiff, on August 29, 2006, filed an action for declaratory relief, requesting that the trial court determine the scope of the confidentiality protection afforded by § 35-42. 10 Two days later, the defendant,
pursuant to § 35-42(f), filed with the trial court an application for an order requiring the plaintiff to comply with the interrogatories and subpoena duces tecum. On October 12, 2006, the trial court granted the parties' joint motion to consolidate the two matters.
On October 30, 2006, the plaintiff filed a motion for summary judgment in the declaratory judgment action, seeking a declaration from the trial court endorsing the plaintiff's interpretation of § 35-42. 11 Specifically, the plaintiff sought a judgment declaring that the defendant could not disclose any documents or information received pursuant to § 35-42 “to any person outside the [defendant's] office except to the extent such documents and information are (1) actually entered into evidence on the public record in a court proceeding
after notice and opportunity for the [plaintiff] to be heard regarding whether such disclosure may be made; or (2) provided to an official of another state or the federal government ... where such official will maintain the same degree of confidentiality provided by § 35-42(c) and (e)....” The plaintiff claimed further that § 35-42 did not permit the defendant to disclose subpoenaed information and documents to third parties during interviews or depositions he conducted to advance his antitrust investigation.
In opposing the plaintiff's motion for summary judgment, the defendant argued that he could use and share subpoenaed information to the extent necessary to advance his investigation and to prepare cases for prosecution, which could require sharing documents with persons outside of his office. Also, according to the defendant, the plaintiff's claimed right to notice and an opportunity to be heard before its documents could be used in a court proceeding to which it was not a party would be too burdensome. Finally, the defendant argued, there was no language in § 35-42 indicating that a confidentiality requirement should be imposed on sharing information with officials of other jurisdictions.
In a May 1, 2007 memorandum of decision, the trial court denied the plaintiff's motion for summary judgment. 12 The court first interpreted the phrases “shall
not be available to the public” and “shall not be available for public disclosure,” as
used in § 35-42(c) and (e)(2), respectively, in order to decide whether § 35-42 prohibits the disclosure of information to any person outside of the defendant's office. The court concluded that the legislature, by using those phrases, likely intended to establish an exception to the general rule contained in the Freedom of Information Act, General Statutes § 1-200 et seq., that documents received or retained by a public agency are public records available to the public for inspection and copying. 13 According to the trial court, because the statute did not use the words “anyone” or “any person,” it could not be read to preclude a limited disclosure to outside individuals when such disclosure is necessary to advance the purpose of the statute, namely, the investigation of potential antitrust violations and preparation for court proceedings. This limited disclosure, the court explained, would not violate the statutory proscription against disclosure to the “public,” because that term contemplates the community at large as a group and does not necessarily apply to each of its individual members. The trial court concluded, therefore, that subsections (c) and (e)(2) of § 35-42 do not create an absolute bar to the disclosure of subpoenaed material and information during an investigation by the defendant.
The trial court further rejected the plaintiff's assertion that it is entitled to notice and an opportunity to be heard in the event that any information obtained pursuant to § 35-42 is offered during court proceedings to which it is not a party. Finally, the trial court concluded
that § 35-42 does not require officials of other jurisdictions who receive such information pursuant to subsection (g) to conform to the public nondisclosure provisions of subsections (c) and (e)(2).
The plaintiff appealed from the denial of its motion for summary judgment. We dismissed that appeal for lack of a final judgment. See Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646, 650, 954 A.2d 816 (2008). Thereafter, the defendant moved for summary judgment on the plaintiff's complaint and reclaimed the application for an order of compliance for a decision by the trial court; see footnote 11 of this opinion; and the plaintiff filed a second motion for summary judgment on its complaint. On February 24, 2009, the trial court, as to the plaintiff's complaint, denied the plaintiff's second motion for summary judgment, granted the defendant's motion for summary judgment, and rendered judgment in favor of the defendant, adopting as its reasoning the previous memorandum of decision on the plaintiff's first motion for summary judgment. The trial court also granted the defendant's reclaimed application for an order of compliance, reasoning that it involved the same issue of statutory interpretation that had been resolved in favor of the defendant. This appeal followed.
The plaintiff claims first that the trial court improperly construed the proscriptions in § 35-42(c) and (e)(2) against “disclos[ing]” subpoenaed material and information to the “public” to refer only to disclosure to the general public via the provisions of the Freedom of Information Act that require access to public records, thus permitting disclosure to specific members of the public, including actual and potential competitors and clients of a subpoena target, if that disclosure furthers an antitrust investigation. According to the plaintiff, the confidentiality protection of § 35-42 applies even after subpoenaed documents are filed in an enforcement...
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