Hamilton, Superintendent v. Verdow

Eldridge, J., delivered the opinion of the Court. Pursuant to the Maryland Uniform Certification of Questions of Law Act, Maryland Code (1974, 1980 Repl. Vol.), § 12-601 of the Courts and Judicial Proceedings Article, the United States District Court for the District of Maryland has certified to this Court two questions of Maryland law. In general, they are (1) whether, in the circumstances of this case, Code (1957,1979 Repl.

Vol.), Art. 59, § 19, prohibits the discovery from a State mental hospital of a former patient’s medical records, and (2) whether the doctrine of executive privilege prevents the discovery and the in camera inspection by the court of a confidential report prepared for and at the order of the Governor of Maryland. The underlying facts are as follows. On several occasions, Arthur F. Goode, III, was a patient at Spring Grove State Hospital, located in Catonsville, Maryland. The most recent occasion began in September 1975, when Goode voluntarily entered the hospital as a condition of probation after he was found guilty of sexually molesting young boys by the District Court of Maryland sitting in Prince George’s County.

In February 1976, Goode left the hospital and went to Florida to visit his parents. While in Florida, Goode killed a ⁵⁴⁷ young boy, Jason S. Verdow. Afterwards, Goode returned to Maryland and then traveled to Virginia where he killed another youth, Kenneth Dawson. Goode was subsequently convicted of murder in Virginia and in Florida, and he is presently incarcerated in Florida awaiting execution.

The personal representative of the estate of Jason S. Verdow, the Florida murder victim, began this federal diversity action against the superintendent of Spring Grove State Hospital and two staff psychiatrists. The complaint alleged that although the defendants knew that Goode had frequently been convicted of sexually molesting young boys and had previously been diagnosed as a sexual deviate, they negligently recommended that Goode should be treated at Spring Grove rather than at a maximum security institution. The complaint further alleged that the defendants negligently diagnosed the severity of Goode’s condition, resulting in a failure to prescribe an adequate method of treatment. Finally, the plaintiff asserted that the defendants permitted Goode to leave the institution without notifying any appropriate authority even though they knew that Goode had not responded to treatment and still possessed the capacity to commit criminal acts.

During the course of discovery, the plaintiff noted two depositions. The first was to the custodian of medical records at Spring Grove, by which the plaintiff sought to discover the medical records maintained by Spring Grove which related to Goode. The second notice was to Judge Alan M. Wilner of the Maryland Court of Special Appeals, and it was accompanied by a subpoena to produce a copy of an investigative report which concerned the handling of Goode at Spring Grove, and which was prepared by Judge Wilner while he was serving on the staff of the Governor of Maryland. The Maryland Attorney General filed motions for protective orders, asserting that the documents sought by the plaintiff were privileged and confidential by law.

An affidavit claiming a "privilege as Chief Executive Officer of the State of Maryland” to withhold the Wilner Report from discovery was also submitted by the Acting Governor of ⁵⁴⁸ Maryland. 1 In general, the affidavit alleged that the report was a confidential report, prepared for the purpose of future executive action in order to attempt to prevent other similar occurrences at state facilities, and contained opinions and recommendations for the Governor’s use as well as other confidential, personal information relating to Goode. The United States District Court initially ordered that the documents should be produced for an in camera inspection in order to determine the extent to which they were discoverable. By letter, the Attorney General of Maryland requested that the federal court reconsider its order for an in camera inspection or, in the alternative, certify to this Court the legal questions of whether the documents were privileged. Finding that there was no controlling precedent in the decisions of this Court, the United States District Court certified the following questions: "(1) Do the provisions of Article 59 § 19, Annotated Code of Maryland (1978 Cum.

Supp.) prohibit the discovery of a former patient’s records at a facility, where the former patient has not expressly waived his privilege under C & JP Art., § 9-109, Annotated Code of Maryland (1974) for purposes of this litigation? "(2) Is the investigative report concerning the circumstances surrounding the Arthur F. Goode, III, case, compiled in confidence for the Governor of Maryland at his request for the purpose of potential future executive action in order to attempt to prevent or minimize similar occurrences by identifying and assessing any deficiencies within the governmental systems, barred from discovery ⁵⁴⁹ and in camera inspection by the federal court on the basis of executive privilege?” 2 (1) The first certified question is whether Art. 59, § 19, of the Maryland Code prohibits the discovery of the medical records at Spring Grove State Hospital which relate to Goode unless he has expressly consented to their release for use in this litigation. Article 59, § 19, which is made applicable to Spring Grove by Art. 59, § 3 (e), provides: "Each facility which has, as patients, any persons admitted under the provisions of this subtitle, shall make and retain in a separate and secure area of the facility, complete records of each such patient. Such records shall contain copies of all data required by this article, and such additional information as may be required by the Department.

Such records shall be open for inspection by persons designated by the Commissioner and in accordance with the provisions of § 9-109 of the Courts Article of the Code, but shall be closed to all other persons.” (Emphasis supplied.) The relevant provisions of § 9-109 of the Courts and Judicial Proceedings Article provide: "(b) Privilege generally. — Unless otherwise provided, in all judicial, legislative, or ⁵⁵⁰ administrative proceedings, a patient or his authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing, communications relating to diagnosis or treatment of the patient’s mental or emotional disorder. * * * "(d) Exclusion of privilege. — There is no privilege if: "(6) The patient expressly consents to waive the privilege, or in the case of death or disability, his personal or authorized representative waives the privilege for purpose of making claim or bringing suit on a policy of insurance on life, health, or physical condition.” Goode has previously authorized the release of the medical records at Spring Grove to various persons. In 1976, Goode authorized Wilbur C. Smith, III, his attorney in the Florida criminal proceedings, and Judge Wilner to examine, copy and have access to any personal, health or school records relating to him. In 1979, Goode signed a release requesting that Spring Grove Hospital release "any and all medical records, or physicians’ records and reports .. . including ... notes from any psychiatrist(s), notes from any psychologist(s),.. . and any other contained notes and data” to Henry R. Furr, administrator of the estate of Kenneth A. Dawson, the Virginia murder victim. Mr. Furr, as the administrator of Dawson’s estate, has brought an action in the Circuit Court for Baltimore County against Spring Grove State Hospital, and Dr. Williams and Dr. Bartley, who are also defendants in this litigation.

That Baltimore County suit involves substantially the same legal and factual issues as are presented in the instant case. To date, however, Goode has specifically refused to consent to the release of his medical records to the plaintiff in this action. The plaintiff asserts that Goode has waived any privilege of confidentiality that he might have for.the medical records ⁵⁵¹ at Spring Grove by authorizing the release of his records to Judge Wilner, to his attorney Mr. Smith, and to Mr. Furr. In addition, the plaintiff maintains that Goode waived any privilege by revealing all or part of the information contained in the records by his testimony in a deposition and in the various criminal proceedings against him.

In response, the defendants point to the principle that, under some circumstances, a waiver may be conditional and limited in scope. The defendants argue that because Goode has expressly refused to release his medical records to the plaintiff in the present case, his waiver was intended to be limited to those persons who were expressly authorized to examine the records. The waiver, according to the defendants, may not be construed to apply to the plaintiff here. Referring particularly to Goode’s authorization to Judge Wilner, the defendants contend that Goode only gave a qualified consent, and thereby demonstrated the lack of an intent to waive generally his privilege, because he stated that it was given "after discussion and explanation with my attorney.” In our view, by executing a release of his medical records to Mr. Furr, Goode has waived his statutory privilege with respect to the plaintiff in this case.

Consequently, in light of our disposition of this issue on the basis of Goode’s release to Furr, we do not decide whether Goode’s release of the records to Judge Wilner and to Mr. Smith, or his other actions, would also constitute a waiver of the privilege under § 9-109 (d) (6) of the Courts and Judicial Proceedings Article. The defendants principally rely on Roberts v. Superior Court of Butte County, 9 Cal. 3d 330 , 508 P.2d 309, 316-317 , 107 Cal. Rptr. 309 (1973), for the proposition that a waiver of a privilege may be conditioned and limited in scope. In Roberts , the Supreme Court of California held that the plaintiff, by signing a consent form permitting the defendant’s insurer to acquire information regarding the plaintiffs "'medical history, physical condition and treatment rendered,’ ” did not generally waive her ⁵⁵² psychotherapist-patient privilege. 508 P.2d at 317 .

We do not believe that Roberts is at all apposite. In that case, the court was determining whether a waiver of some part of the information in a person’s medical history, i.e., that which related to prior physical conditions, was also a waiver of other types of medical information. Moreover, the waiver in Roberts was only for the different, and limited, purpose of permitting the defendant’s insurer to investigate the physical injury that the plaintiff had sustained in an accident with the defendant. Consequently, Roberts does not support the defendants’ position under the circumstances of the present case.

In contrast to the factual situation in Roberts , Goode released all of his medical records at Spring Grove to Furr in order that they could be used by Furr in the Baltimore County tort suit. The records are not only identical to the materials that are sought by the plaintiff in the present case, but the plaintiff here is bringing a virtually identical tort suit and would be using the records for the same purpose. Moreover, Goode released the records without any express limitations on the use or further distribution of the records by Furr. In certain circumstances, as in Roberts , a waiver of a privilege may be limited to a specific use or purpose.

However, courts have generally held' that once a person waives his privilege by revealing, or permitting to be revealed, certain information, then the privilege will no longer be permitted to protect that same information from use or disclosure to the same or a similarly situated party who will use the information for the same purpose. In these circumstances, therefore, a prior waiver of the privilege is generally regarded as a waiver to the subsequent discovery or use of that information at a later trial of the same issues, or even unrelated issues. See, e.g., Steen v. First Nat. Bank, 298 F. 36 (8th Cir. 1924); Daniels v. Hadley Memorial Hospital, 68 F.R.D. 583 (D.D.C. 1975); Metropolitan Life Ins.

Co. v. Kaufman, 104 Colo. 13 , 87 P.2d 758 (1939); Pittsburgh, C., C. & St. L. Ry. Co. v. O’Conner, 171 Ind. 686 , 85 N.E. 969 (1908); Elliott v. Kansas City, 198 Mo. 593 , 96 ⁵⁵³ S.W. 1023 (1906); Unick v. Kessler Memorial Hospital, 107 N.J. Super. 121 , 257 A.2d 134 (1969); People v. Bloom, 193 N.Y. 1 , 85 N.E. 824 (1908); General American Life Ins. Co. v. Ettinger, 266 A.D. 876 , 42 N.Y.S.2d 836 (1943); see also Travelers Indemnity Co. v. Cochrane, 155 Ohio St. 305 , 98 N.E.2d 840 (1951). Applying this principle to the facts of this case, it is apparent that Goode may not selectively waive his privilege relating to the medical information by arbitrarily picking and choosing among similarly situated parties, at least when it is the same information requested by each party and for the same purpose.

In order to permit a selective waiver, there should be some reasonable basis for distinguishing between two different situations. In this case, however, there is no rational ground for distinguishing between Goode’s waiver of his entire medical file to Furr when that information is identical to the information requested by the plaintiff. Both Furr and the plaintiff brought suits that involve substantially the same defendants and that are predicated on virtually identical facts and allegations. Both parties intended to use the information for the same purpose.

Accordingly, by expressly authorizing the Furr plaintiff to obtain the medical records, Goode has similarly waived his statutory privilege with respect to discovery by the plaintiff in the present action. The answer to the first certified question is "No.” (2) The issues presented by the second certified question are whether the Wilner Report is barred from discovery and in camera inspection by the doctrine of executive privilege. 3 ⁵⁵⁴ According to the affidavit claiming that the Wilner Report was privileged, the Governor requested that Judge Wilner, then the Governor’s staff attorney and Chief Legislative Officer, investigate, in strictest confidence, and report directly to the Governor, the circumstances surrounding the Goode case for the purpose of "potential future executive action in order to attempt to prevent or minimize similar occurrences by identifying and assessing any deficiencies within the governmental systems that were reflected in that case.” The gubernatorial affidavit went on, in relevant part, to describe the report as follows: "3. After extensive investigation and information gathering, a report was issued by Mr. Wilner to the Governor on June 28, 1976.... The information contained confidential data concerning Arthur F. Goode, III, and conclusions and recommendations to the Governor for possible future executive action.

"4. Based upon information supplied to me by Mr. Wilner . .., I am informed that all communications and records from which information was obtained was with the qualified consent of Arthur F. Goode, III, and originated in confidence, and was to be kept in confidence. I am also informed that almost all of the records used for gathering facts were also confidential by Federal or State law. Mr. Wilner urged that the information be kept strictly confidential for these reasons. * * * ⁵⁵⁵ "7.

I have personally examined the report as the Acting Governor and Chief Executive Officer of the State, and have found the information contained therein to be strictly confidential in nature, containing information that is confidential by law and information that is highly personal to Mr. Goode and to his family. "8. The report was in the nature of an interoffice communication containing opinions, recommendations, and deliberations of the Governor’s attorney for use by the Governor in deciding what executive action, if any,, was appropriate.. .. * * * "10. Production or disclosure of the documents would be contrary to the overriding public interest, in that: a.

The policy and decision-making processes of the Governor and the Executive Branch would be totally thwarted if they were required to reveal the opinions, recommendations, and deliberations used in arriving at policy decisions. Executive officers would be inhibited from deliberating and deciding policy issues of vital importance to the State, its agencies and its citizens, if they were required to reveal the methods and influences considered in arriving at the policy decision. b. If production and disclosure were allowed, the public’s trust and confidence to speak freely with executive officers conducting investigations would be severely inhibited. c. Representations were made to sources of information for the report that the data would be held in strictest confidence.

If the report is permitted to be disclosed, the ⁵⁵⁶ confidence and trust in State Government of those sources and potential future sources from the general public would be seriously impaired.” We are not aware of any prior cases in this Court expressly dealing with the doctrine of executive privilege. Our cases have recognized, however, that the Governor bears the same relation to this State as does the President to the United States, and that generally the Governor is entitled to the same privileges and exemptions in the discharge of his duties as is the President. Magruder v. Swann, Governor, 25 Md. 173, 212 (1866); Miles v. Bradford, Governor of Maryland, 22 Md. 170, 184-185 (1864). In addition, we have observed, in various circumstances, that the principles behind the constitutional separation of powers, Art. 8 of the Maryland Declaration of Rights, 4 place limits on a court’s power to review or interfere with the conclusions, acts or decisions of a coordinate branch of government made within its own sphere of authority.

See, e.g., Dep’t of Nat. Res. v. Linchester, 274 Md. 211, 218, 223-225 , 334 A.2d 514 (1975); Heaps v. Cobb, 185 Md. 372 , 45 A.2d 73 (1945); Magruder v. Swann, Governor, supra; Miles v. Bradford, Governor of Maryland, supra; Green v. Purnell, Comptroller of the Treasury, 12 Md. 329 (1858); Watkins v. Watkins, 2 Md. 341 (1852). Moreover, it is apparent from the very nature of government that a legitimate necessity exists for the protection from public disclosure of certain types of official information. Thus, at least as early as 1807, in the treason trial of Aaron Burr, Chief Justice Marshall, sitting on the circuit court, recognized the potential existence of an executive privilege from discovery for official governmental information and confidential communications to the ⁵⁵⁷ executive.

United States v. Burr, 25 Fed. Cas. 187, 191-192 (C.C. Va. 1807) (Fed. Cas. No. 14,694). The Chief Justice acknowledged that, as a matter of public interest, President Jefferson might be able to prevent the disclosure by a potential prosecution witness of a letter to the President which allegedly contained state diplomatic secrets. Chief Justice Marshall observed (id. at 191-192): "That the president of the United States may be subpoenaed, and examined as a witness, and required to produce any paper in his possession, is not controverted.

I cannot, however, on this point, go the whole length for which counsel have contended. The president, although subject to the general rules which apply to others, may have sufficient motives for declining to produce a particular paper, and those motives may be such as to restrain the court from enforcing its production. I do not think precisely with the gentlemen on either side. I can readily conceive that the president might receive a letter which it would be improper to exhibit in public, because of the manifest inconvenience of its exposure.

The occasion for demanding it ought, in such a case, to be very strong, and to be fully shown to the court before its production could be insisted on. I admit, that in such a case, much reliance must be placed on the declaration of the president; and I do think that a privilege does exist to withhold private letters of a certain description. The reason is this: Letters to the president in his private character, are often written to him in consequence of his public character, and may relate to public concerns. Such a letter, though it be a private one, seems to partake of the character of an official paper, and to be such as ought not on light ground to be forced into public view.” (Emphasis supplied.) See also United States v. Burr, 25 Fed. Cas. 30, 37-38 (C.C. Va. 1807) (Fed. Cas.

No. 14,692d). ⁵⁵⁸ The necessity for some protection from disclosure clearly extends to confidential advisory and deliberative communications between officials and those who assist them in formulating and deciding upon future governmental action. A fundamental part of the decisional process is the analysis of different options and alternatives. Advisory communications, from a subordinate to a governmental officer, which examine and analyze these choices, are often essential to this process. The making of candid communications by the subordinate may well be hampered if their contents are expected to become public knowledge.

As one commentator has observed: "[TJhere are two reasons for preserving the confidentiality of intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising parts of the process by which governmental decisions and policies are formulated: (1) to encourage aides and colleagues to give completely candid advice by reducing the risk that they will be subject to public disclosure, criticism and reprisals; (2) to give the President or other officer the freedom 'to think out loud,’ which enables him to test ideas and debate policy and personalities uninhibited by the danger that his tentative but rejected thoughts will become subjects of public discussion.” Cox, Executive Privilege, 122 U. Pa. L. Rev. 1383 , 1410 (1974). In United States v. Nixon, 418 U.S. 683, 705 , 94 S. Ct. 3090 , 41 L. Ed. 2d 1039 (1974), the Supreme Court pointed to the "valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks ⁵⁵⁹ may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.” Mr. Justice Reed, sitting by designation on the United States Court of Claims in the leading case of Kaiser Aluminum & Chemical Corp. v. United States, 141 Ct. Cl. 38 , 157 F. Supp. 939 (1958), holding that a memorandum containing advice on policy from a subordinate to the General Services Administrator was privileged, explained for the court ( 157 F. Supp. at 946-947 ): "There is a public policy involved in this claim of privilege for this advisory opinion — the policy of open, frank discussion between subordinate and chief concerning administrative action.

"When this Administrator came to make a decision on this $36,000,000 contract, with intricate problems of accounting and balancing of interests, he needed advice as free from bias or pressure as possible. It was wisely put into writing instead of being left to misinterpretation but the purchaser, plaintiff here, was entitled to see only the final contracts, not the advisory opinion. "... The document sought here was a part of the administrative reasoning process that reached the conclusion embodied in the contracts with Kaiser and Reynolds.

The objective facts, such as the cost, condition, efficiency, terms and suitability are otherwise available. So far as the disclosure of confidential intra-agency advisory opinions is concerned, we conclude that they belong to that class of governmental documents that are privileged from inspection as against public interest.... "... [T]he demand for this document seeks to lay bare the discussion and methods of reasoning of public officials. The fact that the author is dead is immaterial here.

It is not a privilege to protect the ⁵⁶⁰ official but one to protect free discussion of prospective operations and policy....” In another leading case, Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318 (D.D.C. 1966), aff'd sub nom. V.E.B. Carl Zeiss, Jena v. Clark, 384 F.2d 979 (D.C. Cir. 1967), cert. denied, 389 U.S. 952 , 88 S. Ct. 334 , 19 L. Ed. 2d 361 (1967), upholding the United States Attorney General’s claim of executive privilege with regard to several intra-departmental and inter-departmental memoranda in the possession of the United States Department of Justice, containing opinions, recommendations and deliberations pertaining to decisions of the Department, the court pointed out that there are two different policies underlying the privilege. As to the first, the court stated ( 40 F.R.D. at 324-325 ): "... In striking the balance in favor of nondisclosure of intra-governmental advisory and deliberative communications, the privilege subserves a preponderating policy of frank expression and discussion among those upon whom rests the responsibility for making the determinations that enable government to operate....

"... It is evident that the Department, to function adequately, must depend heavily upon candid exchanges of ideas, not only among its own staff but also, particularly because of the institutional nature of its decisions, with other agencies whose interests are involved. "To the extent that such communications may later be scrutinized by others, the communicative process itself becomes embarrassed....” The court went on to set