Zaal v. State

⁶¹ ROBERT M. BELL, Judge. In this case, we are asked to decide whether, pursuant to a lawfully issued subpoena, see COMAR 13A.08.02.20A, 1 a defendant charged with child sexual abuse, may inspect the school records of the child he has allegedly abused. The Court of Special Appeals responded in the negative, when it addressed the issue. Zaal v. State, 85 Md.App. 430 , 584 A.2d 119 (1991).

We granted the petition for writ of certiorari, filed by petitioner, Iwan Zaal, to review the important issue. We shall reverse. I. Petitioner was charged with sexual child abuse of his twelve year old granddaughter, the victim. According to the victim, when she and petitioner returned from the movies and lunch, petitioner talked dirty to her and fondled her, which included touching her inappropriately on the uppermost part of her thigh and fingering her vaginp,.

In addition, she stated that, at one point, petitioner placed her on top of him and she felt something go into her vagina. Finally, she maintained that petitioner placed her hand on his penis. Petitioner denied the allegations and, in fact, rejoined that it was the victim who acted inappropriately. He maintains that it was the victim who placed his hand between her legs, afterwards stating, “I did it for my daddy,” and later touched him, while commenting, “Now ⁶² my father can get you.” Evidence presented at trial indicated that there was “bad blood” between petitioner and the victim’s father to the point that the victim’s father had threatened that he would “get [petitioner] one way or another.” Prior to trial, petitioner subpoenaed the victim’s school records from the Montgomery County Board of Education (“the Board”). 2 See Maryland Rule 4-266.

In response, relying on COMAR 13A.08.02.20B, 3 the Board moved for a protective order. See Maryland Rule 4-266(c). A hearing was held on the motion. Petitioner argued that the school records he sought were critical to his effective cross-examination of the victim.

Because, he noted, he was aware that the victim had an emotional disability requiring special education and he denied her allegations, the case would likely turn on the victim’s credibility. Therefore, he continued, it was necessary that he be able to attack her credibility and, specifically, to explore her motivation, bias and veracity. This would not be possible, he proffered, “without access to some records indicating the nature and extent of the child’s disability.” Moreover, he suggested that the records might reveal “a pattern of behavior pre-existing that would impinge upon [the victim’s] believability in the statement.” In fact, that the victim was in a “special classroom” as a result of an “emotional disturbance” bears, he asserts, on whether there was “a physical basis that ⁶³ would relate to her capacity to observe and relate” or “a mental deficiency leading to an inability to control actions.” Furthermore, petitioner noted “the extreme antagonism [that] had existed for a number of years between himself and the victim’s father,” contending that the victim’s awareness of that hostility may indicate a bias on her part which caused her to fabricate the incident. After conducting an in camera review of the victim’s school records, the trial court, granting the Board’s motion for protective order, quashed the petitioner’s subpoena.

It noted that its review did not reveal “anything that would appear to set forth any kind of evidence that would be directly admissible in this proceeding,” for impeachment purposes. The trial court concluded, “there is really nothing I can see that in any significant way would relate to truth telling to this or to any other occasion” and, certainly, nothing “showing] an inveterate tendency to lie.” Therefore, the court said: When you weigh that against a rather strong privacy concern, and frankly the concern of making this record an open issue and permitting the child to be inquired as to it even in the face of objections that could be sustained when raised by the State, may compromise significantly this child’s educational future. That’s really one of the reasons for the privacy consideration. On appeal, 4 petitioner argued that the trial court’s ruling violated his rights to confrontation, compulsory process and effective assistance of counsel under both the federal and State constitutions.

Rejecting those arguments, the intermediate appellate court, concluding that “the fact pattern ⁶⁴ and the statute in this case are virtually identical to those in Ritchie ,” found Pennsylvania v. Ritchie, 480 U.S. 39 , 107 S.Ct. 989 , 94 L.Ed.2d 40 (1987) dispositive. Zaal, 85 Md. App. at 444 , 584 A.2d at 126 . It observed: Maryland carefully regulates the disclosure of personally identifiable information from a student’s education records. See Md.Regs.Code tit. 13, § 13[A].08.02.19-.31 (1989).

A school or educational institution generally may not disclose such information without the written consent of a student’s parent or guardian. Id. at 13A.08.02.19. There are a few limited exceptions, however, including a disclosure “[t]o comply with a judicial order or lawfully issued subpoena” so long as the school or educational institution attempts to notify the student or the student’s parent or guardian in advance of its compliance with the order. Id. at 13A.08.02.20A(9). 85 Md.App. at 442 , 584 A.2d at 125 .

II

The statute at issue in Pennsylvania v. Ritchie, supra, was enacted to establish an agency to combat child abuse by investigating cases of suspected mistreatment and neglect. 480 U.S. at 43 , 107 S.Ct. at 994 , 94 L.Ed.2d at 48 . In pertinent part, it provided: (a) Except as provided in section 14 [Pa.Stat.Ann., Tit. 11, § 2214 (Purdon Supp.1986)] reports made pursuant to this act including but not limited to report summaries of child abuse ... and written reports ... as well as any other information obtained, reports written or photographs or X-rays taken concerning alleged instances of child abuse in the possession of the department, a county children and youth social service agency or a child protective service shall be confidential and shall only be made available to: ****** (5) A court of competent jurisdiction pursuant to a court order. ⁶⁵ Pennsylvania Statutes Ann., Title 11, § 2215(a) (Purdon Supp.1986). 5 There are other exceptions not here relevant. Thus, the Court was presented with the issue “whether and to what extent a State’s interest in the confidentiality of its investigative files concerning child abuse must yield to a criminal defendant’s Sixth and Fourteenth Amendment ⁶⁶ Right to discover favorable evidence.” 480 U.S. at 42-43 , 107 S.Ct. at 993-94 , 94 L.Ed.2d at 48 . Having been charged with various sexual offenses against his minor daughter and seeking unspecified exculpatory evidence to be used in his defense, Ritchie subpoenaed the investigative records maintained by the Children and Youth Services Agency.

Relying on its enabling statute, which provided that information relating to a child abuse investigation is confidential, subject to certain exceptions, the agency refused to release them. Without reviewing all of the records, but accepting the agency’s representation that the records contained no relevant medical reports, the trial judge refused to order the records disclosed and denied Ritchie’s motion for sanctions. Ritchie was subsequently tried and convicted of child abuse. On appeal, the Pennsylvania Superior Court vacated the conviction and remanded the case for further proceedings.

It held that, while not entitled to full disclosure of the records, Ritchie was initially entitled to an in camera review by the trial judge, release of certain statements made by the victim to her counselor, and, thereafter, disclosure of the entire record to his lawyer in order that the relevance of the statements disclosed might be argued. Although affirming the Superior Court’s decision to vacate and remand, the Supreme Court of Pennsylvania, relying on the confrontation and compulsory process clauses, held that Ritchie was entitled to review the entire record for useful information. Pennsylvania v. Ritchie, 509 Pa. 357 , 502 A.2d 148 (1985). In that Court’s view, the defendant was entitled to “the opportunity to have the files reviewed with the eyes and the perspective of an advocate,” who “may see connection and relevancy” a neutral judge would not. 502 A.2d at 153 .

Affirming in part and reversing in part, the Supreme Court of the United States analyzed the issue in the context ⁶⁷ of the due process clause of the Fourteenth Amendment. 6 It affirmed the Pennsylvania Supreme Court’s remand for further proceedings, agreeing that the trial court should have reviewed the agency’s file, but for information that “probably would have changed the outcome of [the defendant's] trial.'' 480 U.S. at 58 , 107 S.Ct. at 1002 , 94 L.Ed.2d at 58 . The Court rejected, however, the holding that the review must be done through counsel. Notwithstanding that defendant would be deprived of the “advocate’s eye” in favor of a trial judge’s in camera review, the Court believed that limitations on the trial court’s discretion would protect the defendant’s interest in a fair trial, 480 U.S. at 60 , 107 S.Ct. at 1003 , 94 L.Ed.2d at 59 , and, in any event, the State’s “compelling interest” in protecting sensitive child abuse information outweighed the defendant’s countervailing interest in having disclosure. Id.

As to this point, the Court made the following significant comments: To allow full disclosure to defense counsel in this type of case would sacrifice unnecessarily the Commonwealth’s compelling interest in protecting its child-abuse information. If the CYS records were made available to defendants, even through counsel, it could have a seriously adverse effect on Pennsylvania’s efforts to uncover and treat abuse. Child abuse is one of the most difficult crimes to detect and prosecute, in large part because there often are no witnesses except the victim. A child’s feelings of vulnerability and guilt and his or her unwillingness to come forward are particularly acute when an abuser is a parent.

It therefore is essential that the child have a state-designated person to whom he may turn, and to do so with the assurance of confidentiality. Relatives and neighbors who suspect abuse also ⁶⁸ will be more willing to come forward if they know that their identities will be protected. Recognizing this, the Commonwealth — like all other States — has made a commendable effort to assure victims and witnesses that they speak to the CYS counselors without fear of general disclosure. The Commonwealth’s purpose would be frustrated if this confidential material had to be disclosed upon demand to a defendant charged with criminal child abuse, simply because a trial court may not recognize exculpatory evidence.

Neither precedent nor common sense requires such a result, (emphasis supplied) 480 U.S. at 60-61 , 107 S.Ct. at 1003 , 94 L.Ed.2d at 59-60 . A plurality of the court rejected the defendant’s confrontation argument premised on the need for discovery in order to render cross-examination effective on the basis that “the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination.” (emphasis in original) 480 U.S. at 52 , 107 S.Ct. at 999 , 94 L.Ed.2d at 54 . In a concurring opinion, Justice Blackmun disputed that characterization of the confrontation right and, indeed, expressed the belief that accepting “the plurality’s effort to divorce confrontation analysis from any examination into the effectiveness of cross-examination, ... in some situations [would render] the confrontation right ... an empty formality.” 480 U.S. at 62 , 107 S.Ct. at 1004 , 94 L.Ed.2d at 60 . He cited Davis v. Alaska, 415 U.S. 308 , 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974) as an example of the fruitlessness of being permitted to pursue a proper line of questioning without having been allowed to discover the availability of information necessary for effective cross-examination.

III

Chapter 02, Student Records, of subtitle 08, Title 13A of the Code of Maryland Regulations was promulgated on authority of Maryland Code (1974, 1989 Repl.Vol.) § 2-205(c) of the Education Article. That section requires the State Board of Education to “adopt by-laws, rules, and ⁶⁹ regulations for the administration of the public schools.” Regulation .20 is, in turn, based on 34 Code of Federal Regulations (7-1-90 Ed.), Title 34, § 99.31 ( 34 CFR § 99 .-31), 7 one of the regulations implementing the Family Education Rights and Privacy Act of 1974, codified at 20 U.S.C. § 1232g (Supp. IV., 1974, 1991). Subsection (b)(2), in pertinent part, provides: (2) No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of releasing, or providing access to, any personally identifiable information in education records other than directory information, or as is permitted under paragraph (1) of this subsection unless— (A) there is written consent from the student’s parents specifying records to be released, the reasons for such release, and to whom, and with a copy of the records to be released to the student’s parents and the student if desired by the parents, or (B) such information is furnished in compliance with judicial order, or pursuant to any lawfully issued subpoena, upon condition that parents and the students are notified ⁷⁰ of all such orders or subpoenas in advance of the compliance therewith by the educational institution or agency.[ 8 ] There is no comparable Maryland statute. Thus, to discern the purpose of the regulation, it is necessary to determine the purpose of the federal statute.

The Family Education Rights and Privacy Act of 1974 has as its purpose to assure parents of students and students themselves if they are over the age of 18 or attending an institution of post-secondary education, access to their education records and to protect such individuals' rights to privacy by limiting the transferability [and disclosure] of their records without their consent. The Secretary of Health, Education, and Welfare is charged with enforcement of the provisions of the Act, and failure to comply with its provisions can lead to withdrawal of Office of Education Assistance to the educational agency or institution. Rios v. Read, 73 F.R.D. 589, 597 (E.D.N.Y.1977), quoting 120 Congressional Record S21487 (daily ed. Dec. 12, 1974) (joint remarks of Senator Buckley and Senator Pell).

The Act was the congressional response to “the growing evidence of the abuse of student records across the nation.” 9 ⁷¹ 73 F.R.D. at 597-98 , quoting 121 Cong.Record S7974 (daily ed. May 13,1975) (remarks of Sen. Buckley). “The underlying purpose of FERPA was not to grant individual students a right to privacy or access to educational records but to stem the growing policy of many institutions to carelessly release educational information.” Bauer v. Kincaid, 759 F.Supp. 575, 590 (W.D.Mo.1991), quoting Smith v. Duquesne University, 612 F.Supp. 72, 80 (W.D.Pa.1985). While “principally a right to privacy of educational records act,” FERPA was adopted to address systematic, not individual, violations of students’ privacy and confidentiality rights through unauthorized releases of sensitive educational records.

The underlying purpose of FERPA was not to grant individual students a right to privacy or access to educational records, but to stem the growing policy of many institutions to carelessly release student records. Smith v. Duquesne University, 612 F.Supp. at 80 . It did not, in other words, create a privilege against disclosure of student records to be invoked by the school, the student, or his or her parents: It is obvious ... that the 1974 Act does not provide a privilege against disclosure of student records. The statute says nothing about the existence of a school-student privilege analogous to a doctor-patient or attorney-client privilege.

Rather, by threatening financial sanctions, it seeks to deter schools from adopting policies of releasing student records. Moreover, a school is not subject to sanctions because it discloses “personally identifiable information” if it does so in compliance with a judicial order. Rios v. Read, 73 F.R.D. at 598 . See Reeg v. Fetzer, 78 F.R.D. 34, 35 (W.D.Okl.1976). ⁷² That the statute exempts a local school system or educational institution which discloses “personally identifiable information” in compliance with a judicial order from sanctions does not mean that a student’s privacy or confidentiality interest in his or her education records is automatically overridden whenever a court order to review them is sought.

The statute contemplates that “students have substantial privacy and confidentiality interests in their school records.” Thus, “privacy violations are no less objectionable simply because release of the records is obtained pursuant to judicial approval unless, before approval is given, the party seeking disclosure is required to demonstrate a genuine need for the information that outweighs the privacy interest of the students.” Rios v. Read, 73 F.R.D. at 599 . Although the statute does not, by its express terms, exempt school records from discovery under the Federal Rules of Civil Procedure, whether, and under what circumstances, those records are discoverable must be determined by reference to the congressional policy in enacting the FERPA. Since that policy places a significantly heavy burden on the party seeking access to student records than on one seeking other records which are not impressed with that policy, Rios v. Read, 73 F.R.D. at 598 , when the issue before the court is whether to allow disclosure of education records covered by the FERPA, a trial judge, in the exercise of discretion, must conduct a balancing test in which the privacy interest of the student is weighed against the genuine need of the party requesting the information for its disclosure. Klein Independent School District v. Mattox, 830 F.2d 576, 580 (5th Cir.1987); Rios v. Read, 73 F.R.D. at 599 ; Krauss v. Nassau Community College, 122 Misc.2d 218 , 469 N.Y.S.2d 553, 555 (S.Ct. 1983).

Disclosure is permitted when the need for it outweighs the privacy interest of the student or his or her parents.

IV

As indicated, Maryland has no statute comparable to the Family Education Rights and Privacy Act of 1974. ⁷³ Nevertheless, there are 31 regulations in COMAR 13A.08.-02, of which 17 “are based on federal regulations implementing the Family Education Rights and Privacy Act, 34 CFR, § 99 et seq.” Regulation .01. And, for the most part, those regulations are almost identical to the regulations on which they are based. Therefore, it may be inferred that the purpose of the regulations in Chapter 02, pertaining to student records, is to bring the Maryland practice with respect to the disclosure of education records into line with the federal practice. We believe that the federal precedents on the FERPA apply with equal force to the applicable regulations in COMAR 13A.08.02.

Among the relevant regulations patterned after the federal regulations are .07, Definitions, and .10, Formulation of Local School System Policy and Procedures. Regulation .07K defines “personally identifiable” as including the following data or information: (1) The name of a student; (2) The student’s parent, or guardians or other family member; (3) The address of the student; (4) A personal identifier, such as the student’s social security number or student number; (5) A list of personal characteristics which would make it possible to identify the student with reasonable certainty; or (6) Other information which would make it possible to identify the student with reasonable certainty. It is to be contrasted with Regulation .07A. Under it, “Directory information may include the following information relating to a student: the student’s name, address, telephone number, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, the most recent previous local school system or educational institution attended by the student, and other similar information, ⁷⁴ as defined by the local school system in its adoption of policy as required in these regulations under Regulation .10A(3)(c).” Regulation .10 addresses the responsibility of a local school system to establish a policy and procedure for (3) Not disclosing personally identifiable information from the education records of a student without the prior written consent of the parent or guardians of the student or the eligible student, except as otherwise permitted by this regulation, including at least: (a) A statement of cases in which prior written consent for disclosure o[f] personally identifiable information is not required, ****** (c) A specification of the personally identifiable information to be designated as directory information;____ “Student records” are defined as “any information directly related to one or more students, identifiable to an individual student, and that are maintained by a local school system or educational institution or by a party acting for the local school system or educational institution,” including “papers, correspondence, reports, forms, photographs, photostats, film, microfilm, electronic recordings, such as sound recording or computerized data, or other documents regardless of physical format characteristics, and all copies thereof, that are made or received and kept on file in a classroom, school office, system office, or other location by the local school systems or educational institutions of the State in the transaction of legitimate and recognized educational business.” Regulation .07N.

Excluded are, as relevant to the case sub judice, “[rjecords relating to an eligible student which are created or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his or her professional or para-professional capacity, or assisting in that capacity; created, maintained, or used only in connection with the provision of treatment to the student; and not disclosed to anyone other than individuals providing the treatment____” Treatment ⁷⁵ “does not include remedial educational activities or activities which are part of the program of instruction at the local school system or educational institution.” Id. There are other regulations which have no source in the PERPA regulations. One is .03, which provides: A. The provisions of this regulation are intended to preserve the right of students and parents or guardians to: (1) Have full access to all official records about the student which are maintained by any educational institution or local school system; (2) Have removed from these records any information about the student which is determined to be inaccurate or misleading; (3) Enjoy confidentiality and privacy in regard to the disclosure of information contained in those records to outside agencies; and (4) Provide for efficient student records management. B. General Provisions.

(1) Procedures for Administration. Records shall be kept for individual students in accordance with regulations of the State Board of Education and the “Maryland Student Records System, Manual of Instructions,” and subsequent data systems. (2) Confidentiality. Individual student records maintained by teachers or other school personnel under the provision of this title are to be confidential in nature, and access to these records may be granted only for the purpose of serving legitimate and recognized educational ends.

Individual student records, with the exception of records that are designated as permanent, and with other exceptions provided by law, should be destroyed when they are no longer able to serve legitimate and recognized educational ends. (3) Access of Records. All records of a student maintained under the provisions of this title, including confidential records, shall be available to that student’s ⁷⁶ parent or parents (non custodial — see Regulation .14C) or legal guardians in conference with appropriate school personnel. For purposes of this regulation, the term “records” may not include an education department employee’s personal notes which are not made available to any other person.

This regulation makes manifest that “confidentiality and . privacy” of the student’s records are important considerations. Like the provisions of the FERPA and the regulations promulgated pursuant thereto, the Maryland regulations do not provide, nor even indicate, that a student’s education records are not discoverable pursuant to the Maryland Rules. V. As in Ritchie, confidentiality is a goal of the Family Education Rights and Privacy Act of 1974, and the Maryland regulations promulgated partially in respect thereto. Nevertheless, in the case of a student’s education records, the importance of the goal differs, in degree, from its importance in regard to a state’s child abuse information. 10 There is not the same degree of urgency to limit access to the education records of students as is true in the case of maintaining child abuse information confidential.

Critical to the Ritchie analysis was the State’s interest in maintaining the confidentiality of child abuse information and, in particular, the sources of that information. 480 U.S. at 60-61 , 107 S.Ct. at 1003 , 94 L.Ed.2d at 59-60 . Thus, the Court recognized the need to protect those sources’ confidences, thereby preventing the confidentiality interest protected by the statute from being undermined. In other words, the Supreme Court was concerned with protecting ⁷⁷ the integrity of the information gathering process and with encouraging persons to report child abuse, a very serious, and ever growing, criminal offense. Id.

Moreover, as we have seen, the statute itself declared the records confidential. The assumption adopted in Ritchie — that a trial court, at least temporarily, could assume the role of advocate and, upon a review of records, assess, sufficiently accurately to protect the interests of both the State and the accused, whether those records ought to be disclosed to the defense — must be considered in this context. The Ritchie court said as much. See 480 U.S. at 60-61 , 107 S.Ct. at 1003 , 94 L.Ed.2d at 59-60 .

Indeed, in other contexts, the Court has applied a different rule with respect to a defendant’s access to potentially impeaching information. See, e.g. Jencks v. United States, 353 U.S. 657, 669 , 77 S.Ct. 1007, 1014 , 1 L.Ed.2d 1103, 1112 (1957) (disapproving the “practice of producing government documents to the trial judge for his determination of relevancy ... without hearing the accused____”); Dennis v. United States, 384 U.S. 855, 874-875 , 86 S.Ct. 1840,1851 , 16 L.Ed.2d 973, 986 (1966) (noting that a trial judge ordinarily is not the appropriate person to determine whether information would be useful to a defendant for the impeachment of a State’s witness, that determination belonging more properly to the advocate). Our cases reflect a similar tendency to allow a defendant access to information when privacy interests are not overriding.

In Carr v. State, 284 Md. 455 , 397 A.2d 606 (1979), this Court applied an analysis similar to that used in Davis v. Alaska, supra, 11 to resolve the issue “whether under the facts and circumstances of his criminal trial [a defendant] ⁷⁸ had a right to obtain and use the written statements of a State’s witness for purposes of cross-examination or impeachment.” Id., 284 Md. at 456 , 397 A.2d at 606 . In that case, the trial court refused to allow defense counsel to question a State’s witness concerning a written statement that witness had given the police or to require the State to produce it so that defense counsel could, as the court instructed he would have to, quote from the statement. 284 Md. at 458 , 397 A.2d at 607 . We reversed, observing: In this case Oliver was a very important witness. His testimony was crucial____ We have here no “fishing expedition” in advance of trial.

We have testimony on matters involving identity which may be inconsistent with the prior signed statement by this witness. It was then that trial counsel made his request for this signed statement. Every skilled trial advocate knows the crucial importance in such situations of cross-examination. Effective cross-examination here made it necessary that defense counsel be permitted to directly confront the witness with his inconsistent prior statement.

To deny to defense counsel the tool necessary for such adequate cross-examination under these circumstances amounts in our view to a denial to the defendant of due process of law. 284 Md. at 472-73 , 397 A.2d at 614-15 . These comments were a synthesis of the results of a detailed review of cases which addressed the issue of effective cross-examination. See Jencks v. United States, 353 U.S. 657 , 77 S.Ct. 1007 , 1 L.Ed.2d 1103 (1957), Brady v. Maryland., 373 U.S. 83, 86 , 83 S.Ct. 1194, 1196 , 10 L.Ed.2d 215, 218 (1963); Giglio v. United States, 405 U.S. 150, 153-54 , 92 S.Ct. 763, 766 , 31 L.Ed.2d 104, 108 (1972); United States v. Agurs, 427 U.S. 97,103-04 , 96 S.Ct. 2392, 2397 , 49