Alberty v. Hunter et al
For the reasons discussed in the attached Order, the plaintiff's motion quash (Doc. No. 37 ) is DISMISSED as MOOT and the plaintiff's motion to compel (Doc. No. 44 ) is GRANTED in part subject to the limitations below:< p>1. Within 14 days of this Order, the defendants shall produce the four pages of NCIC records concerning the plaintiff that are currently being withheld;2. Within 30 days of this Order, and as to each defendant, the defendants s hall answer Interrogatory No. 8 and identify any and all civilian complaints or internal disciplinary proceedings having to do with alleged complaints of false arrest, malicious prosecution, retaliatory prosecution, or direct dishonesty during their employment as police officers. 3. Within 30 days of this Order, and as to each defendant, the defendants shall produce documents responsive to Request for Production No. 11, i.e., any and all police records concerning internal discipli nary procedures, regardless of the outcome, to which defendants have been subjected while employed as a police officer, limited to discipline for false arrest, malicious prosecution, retaliatory prosecution, or direct dishonesty.To the extent that the parties seek entry of the Standing Protective Order, they shall submit a joint request on or before 14 days after the entry of this Order. The parties are urged to work cooperatively on this issue to eliminate the need for further li tigation. If the parties are unable to agree, each may file its own request by that date, including both a proposed order for the court's endorsement and a memorandum of law citing authority in support of its position. Session v. Rodriguez, No. 3:03CV0943 (AWT), 2008 WL 2338123, at *3 (D. Conn. June 4, 2008). This is not a Recommended Ruling. This Ruling is reviewable pursuant to the clearly erroneous statutory standard of review. See 28 U.S.C. § 636(b)(1)(A); FED. R. CIV. P. 72(a); and D. CONN. L. CIV. R. 72.2. As such, it is an order of the Court unless reversed or modified by the district judge upon timely made objection. Signed by Judge Robert M. Spector on November 17, 2022. (Salguero, Carlos)
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 1 of 31
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
ROBERT A. HUNTER,
STEPHEN J. SAMSON, and
DATE: NOV. 17, 2022
RULING AND ORDER ON THE PLAINTIFF’S MOTION TO QUASH
AND MOTION TO COMPEL
This is an action for compensatory and punitive damages in which the plaintiff, Wendy
Alberty (“Alberty” or the plaintiff), alleges that the defendants, Trooper Robert A. Hunter
(“Hunter”), Sergeant Stephen J. Samson (“Samson”), and Master Sergeant Daniel W. Deptula
(“Deptula”) (collectively, the defendants), violated her civil rights after arresting and charging her
in connection with an incident in which a bus passenger was locked in the luggage compartment
of a passenger bus Alberty had been operating. It is brought pursuant to 42 U.S.C. § 1983, the
First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, as well as both
common law tenets and Connecticut statutory provisions.
Before the Court is the plaintiff’s motion to quash a third-party subpoena, (Doc. No. 37),
and the plaintiff’s motion to compel the defendants to respond to certain discovery requests. (Doc.
No. 42). The defendants have opposed both motions. (See Doc. Nos. 44, 54).
For the reasons discussed below, the plaintiff’s motion quash (Doc. No. 37) is
DISMISSED as MOOT and the plaintiff’s motion to compel (Doc. No. 44) is GRANTED in
part subject to the limitations discussed below.
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 2 of 31
BACKGROUND AND PROCEDURAL HISTORY
The Court assumes the parties’ familiarity with the facts alleged in the plaintiff’s second
amended complaint (“SAC”) (Doc. No. 59) and the parties’ briefing on the motion to compel. (See
Doc. Nos. 42-1 (Pl’s Br.) and 54 (Def’s Br.)). Thus, the Court provides only a summary of the
facts relevant to the resolution of the instant motions.
In 2019, and at all relevant times, the plaintiff was employed as a driver for Peter Pan Bus
Lines (“Peter Pan”), and the defendants were officers of the Connecticut State Police, Troop C,
and acting under that authority. (SAC ¶¶ 6-9, 10).
On August 4, 2019, the plaintiff was operating a passenger bus for Peter Pan, departing
from Manhattan, New York, en route to Boston, Massachusetts. (SAC ¶ 11). The bus briefly
stopped at Union Station in Hartford, Connecticut, to change drivers. (SAC ¶ 12). During the
stopover, a passenger asked the plaintiff if she could retrieve an item from her bag inside the large
luggage compartment, under the bus. (SAC ¶ 13). The plaintiff acquiesced, opened the luggage
compartment door and went on to engage in a conversation with a coworker while the second
driver scheduled to drive the leg from Hartford to Boston began pre-trip safety checks. (SAC ¶¶
Though accounts diverge from here, both parties agree to the following basic facts. While
the plaintiff was engaged in conversation with her coworker, the passenger fully entered the
luggage compartment and the compartment door was shut on her, trapping her below the main
passenger cabin. Alberty then boarded the bus to continue the trip to Boston as a passenger while
the second driver took over, and the bus resumed its trip with the passenger trapped underneath.
(SAC ¶¶ 16-18; Doc. No. 54 at 1-2). The passenger dialed 911, and the bus was pulled over by
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 3 of 31
Trooper Hunter who informed the bus driver that Connecticut State Police Troop C dispatch had
received a 911 telephone call from a female passenger, stating that she was locked in the luggage
compartment of a Peter Pan bus. (SAC ¶ 19). Sergeant Samson then arrived on the scene, took
command, and the passenger was freed from the luggage compartment uninjured. (Id.).
At this point, Hunter and Samson interviewed the second bus driver, the passenger and the
plaintiff. (SAC ¶ 25; Doc. No. 54 at 2). The passenger alleged that the plaintiff had purposefully
locked her in the luggage compartment. (SAC ¶ 22). The plaintiff adamantly maintained that she
had not intentionally or knowingly locked the passenger in the luggage compartment. (SAC ¶ 24).
Nonetheless, Trooper Hunter and Sergeant Samson arrested the plaintiff for breach of peace and
reckless endangerment. (SAC ¶ 23). 1
At about the same time as the troopers were conducting their investigation of the incident
by the roadside, the State Police had dispatched Trooper Gonzalez 2 to Union Station to determine
whether any surveillance footage of the incident existed. Shortly after the plaintiff’s arrest,
Trooper Hunter and Sergeant Samson received word, through dispatch, that Trooper Gonzales had
reviewed the surveillance footage, and it appeared to show that the plaintiff had indeed not locked
the passenger in the luggage compartment intentionally. (SAC ¶¶ 20-21; Doc. No. 42-1 at 2).
The defendants state in their briefing that, following the arrest, Trooper Hunter compiled
his Investigation Report, which contained documentation from the incident, including, as relevant
here, several “NCIC printouts.” (Doc. No. 54 at 2; see SAC ¶ 26; see also Doc. No. 54-1). The
National Crime Information Center (“NCIC”) “database is maintained by the FBI and aggregates
The plaintiff was ultimately charged with (1) unlawful restraint in the first degree, in violation of Conn. Gen. Stat. §
53a-95; (2) reckless endangerment in the second degree, in violation of Conn. Gen. Stat. § 53a-64; and (3) breach of
the peace, in violation of Conn. Gen. Stat. § 53a-181. However, as part of her claims here, the plaintiff alleges that
the count of unlawful restraint was added maliciously and as a direct result of her invocation of her Fifth Amendment
rights in refusing to provide a written statement to the defendants. (See SAC ¶¶ 26-32).
Trooper Gonzales is not a party to this action.
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 4 of 31
criminal justice information from a variety of sources.” Comm’r of Correction v. Freedom of Info.
Comm’n, 307 Conn. 53, 58, 52 A.3d 636, 640 (2012). “Some files in the database contain
information about individual persons and are known as person files. Other files contain records
regarding stolen property. Law enforcement agencies routinely check NCIC records to obtain
information concerning persons in custody or under investigation.” Id. In aggregate, these are
often referred to criminal history records information (“CHRI”).
On July 20, 2020, the plaintiff filed a complaint against Trooper Hunter and Sergeant
Samson alleging claims of false arrest, malicious prosecution, and retaliatory prosecution. 3 (Doc.
No. 1). On July 19, 2021, the Court (Covello, J.) denied the defendants’ motion to dismiss on all
counts, and, in November 2021, the parties commenced discovery. (See Doc. Nos. 28, 42-2).
On February 21, 2022, the plaintiff moved to quash a third-party subpoena issued by the
defendants to the plaintiff’s former employer, Peter Pan. (Doc. No. 37). On March 9, 2022, the
plaintiff moved to compel the defendants to respond to two requests for production and a related
interrogatory, discussed further below, involving: (1) records from criminal history databases—
namely NCIC, COLLECT (the Connecticut On-Line Law Enforcement Communications
Teleprocessing system), and NLETS (the National Law Enforcement Telecommunications
System)—“that were available to them and reviewed by them while they were determining
whether they had probable cause to arrest Plaintiff,” and (2) the defendants’ entire disciplinary
records. (Doc. No. 42). The defendants opposed both motions. (Doc. Nos. 44, 54).
On September 16, 2020, the Court (Covello, J.) granted the plaintiff’s motion to file an amended complaint. (Doc.
No. 8). On May 10, 2022, the Court granted leave to amend the complaint to include as a defendant Master Sergeant
Deptula, for his alleged involvement in adding the retaliatory charge of unlawful restraint. (Doc. No. 58).
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 5 of 31
On October 4, 2022, the Court (Hall, J.) referred both motions to the undersigned. (Doc.
No. 69). On October 14, 202, this Court held a discovery conference with the parties and instructed
them to meet and confer to attempt to the resolve the outstanding issues in the motions. (Doc. No.
73). The Court also ordered the parties to submit a joint status report explaining what issues
remained, if any. (See id.).
On October 28, 2022, the parties submitted the joint status report. (Doc. No. 74). The
parties reported that they had met and conferred and resolved the motion to quash as the “Plaintiff,
through counsel, has withdrawn her objections to Defendants’ Subpoena directed to Peter Pan Bus
Lines, Inc., and therefore the Motion to Quash and Opposition thereto are moot.”
Accordingly, the Court DISMISSES as MOOT the plaintiff’s motion to quash the subpoena.
(Doc. No. 37).
However, the parties submitted that the following two issues in the plaintiff’s motion to
compel, (Doc. No. 42), require resolution by the Court: (1) whether the defendants must disclose
the four pages of NCIC records about the plaintiff attached to the Investigation Report, and (2) the
proper scope of the defendants’ disciplinary records that must be disclosed. The Court now
resolves these issues.
The Scope of Discovery under Rule 26(b)
“[T]he scope of discovery is broad.” McCarroll v. Nardozzi, No. 3:96CV00124 (AVC),
2004 WL 7333640, at *2 (D. Conn. Oct. 13, 2004). The “[p]arties may obtain discovery regarding
any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the
needs of the case.” FED. R. CIV. P. 26(b)(1). “Information within this scope of discovery need not
be admissible in evidence to be discoverable.” Id. “The touchstone of Fed. R. Civ. P. 26(b)(1) is
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relevance[.]” Compudyne Corp. v. Shane, 244 F.R.D. 282, 283 (S.D.N.Y. 2007). “Information
that is reasonably calculated to lead to the discovery of admissible evidence is considered relevant
for the purposes of discovery.” Tucker v. Am. Int’l Grp., Inc., 281 F.R.D. 85, 91 (D. Conn.
2012) (citing Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1367 (2d Cir.1991)). See
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 2389, 57 L. Ed. 2d 253
(1978) (explaining that relevancy under Rule 26 “has been construed broadly to encompass any
matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that
is or may be in the case.” (citing Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 388, 91
L.Ed. 451 (1947))).
“When a party files a motion to compel, it bears the initial burden to show the relevance of
the information it seeks.” Huseby, LLC v. Bailey, No. 3:20-CV-00167 (JBA), 2021 WL 3206776,
at *6 (D. Conn. July 29, 2021). After this burden has been met, the “party resisting discovery
[then] bears the burden of showing why discovery should be denied.” Cole v. Towers Perrin
Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn. 2009). “Put differently, the moving party must
make ‘a prima facie showing of relevance,’ after which ‘it is up to the responding party to justify
curtailing discovery.’” Huseby, No. 3:20-CV-00167 (JBA), 2021 WL 3206776, at *6 (quoting
Shore-Long Island Jewish Health Sys., Inc. v. MultiPlan, Inc., 325 F.R.D. 36, 48 (E.D.N.Y. 2018)).
“All ‘[m]otions relative to discovery,’ including motions to compel, ‘are addressed to the
discretion of the [district] court.’” Mercer v. Rovella, No. 3:16-CV-329 (CSH), 2022 WL
1514918, at *3 (D. Conn. May 12, 2022) (quoting Soobzokov v. CBS, 642 F.2d 28, 30 (2d Cir.
1981)). “Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly and to
dictate the sequence of discovery.” Id. (quoting Crawford-El v. Britton, 523 U.S. 574, 598, 118
S. Ct. 1584, 1597, 140 L. Ed. 2d 759 (1998)) (internal quotation marks omitted). See
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also Dauphinais v. Cunningham, 395 F. App’x 745, 746-47 (2d Cir. 2010) (“[T]he federal rules
give district courts broad discretion to manage the manner in which discovery proceeds, and we
review discovery rulings for abuse of discretion.” (citations and internal quotation marks omitted)).
Establishing that a defendant acted without probable cause is an element for false arrest,
malicious prosecution, and retaliatory prosecution claims brought pursuant to § 1983. See Chase
v. Nodine’s Smokehouse, Inc., 360 F. Supp. 3d 98, 112-13 (D. Conn. 2019) (applying Connecticut
law and setting out standard for false arrest and malicious prosecution claims); Mozzochi v.
Borden, 959 F.2d 1174, 1180 (2d Cir. 1992) (setting out standard for malicious prosecution under
the First Amendment). “The existence of probable cause is a complete defense to claims of false
arrest and malicious prosecution under both federal and Connecticut law.” Chase, 360 F. Supp.
3d at 112 (citing Williams v. Town of Greenburgh, 535 F.3d 71, 78-79 (2d Cir. 2008)). “It will
also defeat a First Amendment claim that is premised on the allegation that defendants prosecuted
a plaintiff out of a retaliatory motive.” Fabrikant v. French, 691 F.3d 193, 215 (2d Cir. 2012).
Probable cause for an arrest “requires an officer to have knowledge or reasonably
trustworthy information sufficient to warrant a person of reasonable caution in the belief that an
offense has been committed by the person to be arrested.” Id. at 214. “Courts evaluating probable
cause for an arrest must consider those facts available to the officer at the time of the arrest and
immediately before it.” Id. (quoting Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006)).
NCIC Records Regarding the Plaintiff
In production Request No. 10, the plaintiff seeks:
Any and all C.I.R. reports, case/incident reports, internal affairs records, Detective
Bureau records, medical records, accident records, wagon records, booking records,
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 8 of 31
cell block records, etc., concerning plaintiff, any defendant or the subject matter of
(Doc. No. 42-1 at 3).
However, the parties agree that through their efforts to meet and confer, they have narrowed
the issue to five pages of records from NCIC, COLLECT, and LETS databases which were
attached to the Investigation Report. Four of these pages have been withheld by the defendants.
(See Doc. No. 42-1 at 3-5, 7; Doc. No. 54 at 3). A declaration proffered by the defendants states
that the four pages of unproduced records “were generated from” the COLLECT/NCIC system
and that three of them have an identical DMV record which “contains information regarding Ms.
Alberty’s driver’s license.” 4 (See Doc. No. 54-1, ¶¶ 5-7). One withheld page, however, is an
“NCIC record, which confirms the existence or nonexistence of a federal criminal record.” (Id. at
The defendants’ arguments against producing these pages are twofold. First, they maintain
that two federal statutes—the National Crime Prevention and Privacy Compact (the “Compact”),
42 U.S.C. § 14616, and 28 U.SC. § 534—prevent their disclosure. Second, they claim that, in any
case, the withheld NCIC records are irrelevant. (See Doc. No. 54 at 3-7). The Court takes these
arguments in reverse order because, if the plaintiff has not met her burden of establishing that such
records are relevant, see Huseby, No. 3:20-CV-00167 (JBA), 2021 WL 3206776, at *6, there is no
need to reach the question of whether federal law prohibits their disclosure.
The declaration is signed by Versie Jones, the Criminal Justice Information Systems Officer for Connecticut’s
Department of Emergency Services and Public Protection; Ms. Jones is responsible for the access, use, dissemination,
auditing, and training of United States Federal Bureau of Investigation (FBI) CJIS Systems and data for the State of
Connecticut. (Doc. No. 54-1, ¶ 2).
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 9 of 31
The plaintiff contends that the NCIC records are relevant because the information
contained within them—i.e., her potential criminal history that was included in page three of the
withheld documents—was available to the defendants at the time of her arrest and go to “crucial”
question of whether they had or lacked probable cause to arrest her and, in particular, whether the
defendants made the decision to arrest her based on information not related to the passenger’s
allegations. (Doc. No. 42-1 at 7; see Doc. No. 54-1, ¶ 8). As stated above, demonstrating a lack
of probable cause is a key element to each of the plaintiff’s claims here and an absolute defense
for the defendants. See Chase v. Nodine’s Smokehouse, Inc., 360 F. Supp. 3d at 112-13; Mozzochi,
959 F.2d at 1180; Fabrikant v. French, 691 F.3d at 215. The defendants’ brief also makes it clear
that Trooper Hunter had access to the NCIC criminal record information prior to when a decision
was made to arrest the plaintiff. 5 (Doc. No. 54 at 6).
Thus, the withheld NCIC records are
arguably relevant to the plaintiff’s claims because they may bear on, and lead to, other admissible
evidence as to whether the plaintiff’s arrest was substantiated by probable cause.
The defendants rejoin that the records are irrelevant because (1) at the defendants’
depositions none of them testified that her criminal history was a consideration in deciding to arrest
her and (2) the “defendants have no intention of arguing that the plaintiff’s criminal history (or
lack of) served as the basis for her arrest.” (Doc. No. 54 at 6). Rule 26(b)’s reach, however, “has
been construed broadly to include any matter that bears on, or that reasonably could lead to other
matter that could bear on, any issue that is or may be in the case” regardless of what is said in a
The defendants state, “Trooper Hunter’s body camera indicates that they never accessed the actual criminal record
information prior to arresting the plaintiff, but rather, the dispatcher communicated the results of the query to Trooper
Hunter.” (Doc. No. 54 at 6). They further state that the footage shows that dispatch did not find anything “negative.”
(Id.). But Rule 26 simply requires that the evidentiary “matter” sought be nonprivileged, relevant, and proportional
to a claim or defense and does not put limitation on from where that information may be sought. FED. R. CIV. P. 26(b).
The defendants also do not dispute that the information transmitted to Trooper Hunter came from the NCIC records
at issue and was later attached to the Investigation Report.
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 10 of 31
deposition. El Badrawi v. Dep’t Of Homeland Sec., 258 F.R.D. 198, 201 (D. Conn. 2009) (citation
and internal quotation marks omitted). See Martino v. Nationstar Mortg. LLC, No. 17-CV-1326
(KAD), 2019 WL 2238030, at *1 (D. Conn. May 23, 2019) (explaining that “[r]elevance for
discovery purposes is an extremely broad concept”). And the defendants may very well be
impeached on this deposition testimony at trial, perhaps using the very information that is
contained in withheld NCIC records. Moreover, a party seeking discovery of relevant and
nonprivileged documents need not demur to an opposing party’s assurance that they do not intend
to argue a certain theory or defense to avoid its discovery obligations. “Rather, the party seeking
discovery is entitled to obtain the discovery and draw its own conclusions as to the documents’
usefulness.” El Badrawi, 258 F.R.D. at 201.
As the plaintiff has demonstrated that the NCIC records are relevant to the issue of probable
cause, they should be disclosed unless they are privileged, or the defendants can otherwise
shoulder “the burden of showing why discovery should be denied.” Cole, 256 F.R.D. at 80.
Whether Federal Law Bars Disclosure of the NCIC Records
As an initial matter, the defendants do not “expressly” claim anywhere in their briefing that
the NCIC records are privileged. See Fed. R. Civ. P. 26(b)(5)(A) (explaining that “[w] hen a party
withholds information otherwise discoverable by claiming that the information is privileged . . .
the party must expressly make the claim” (emphasis added)); (Doc. No. 42-2, ¶ 6). See also El
Badrawi v. Dep’t Of Homeland Sec., 258 F.R.D. 198, 203-06 (D. Conn. 2009) (examining NCIC
records and the qualified “law enforcement privilege” in the Rule 26(b) motion-to-compel
context). Nor do the defendants pursue any arguments that producing the NCIC records would be
overly burdensome, disproportional, expensive, or otherwise outside the scope of Rule 26. Thus,
the Court does not address these considerations.
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 11 of 31
Instead, the defendants argue that the NCIC records concerning the plaintiff are “protected
by law.” (Doc. No. 54; Doc. No. 42-2, ¶ 6). Specifically, the defendants contend that two
interrelated federal statutes governing the exchange and dissemination of CHRI bar their
First, the defendants contend that the Compact, 34 U.S.C. § 40316, 6 which Connecticut
participates in, protects the records from disclosure because the Compact only allows the NCIC
database “to be used for limited purposes authorized by law, such as background checks, and that
NCIC records may only be used for official purposes.” (Doc. No. 54 at 4). Second, they argue
that 28 U.S.C. § 534, which regulates the dissemination of FBI compiled “rap sheets” and other
CHRI, also prohibits disclosure. Relatedly, the defendants contend that to allow production of
the records here would put Connecticut’s participation in the Compact at risk of cancellation by
the Attorney General. (Id. at 4-5).
In 1998, Congress enacted the Crime Identification Technology Act of 1998, PL 105–251,
which established the Compact. The Compact “organizes an electronic information sharing system
among the Federal Government and the States to exchange criminal history records for
noncriminal justice purposes authorized by Federal or State law, such as background checks for
governmental licensing and employment.” 34 U.S.C. § 40316(a). Pursuant to the Compact, “the
FBI and the Party States agree to maintain detailed databases of their respective criminal history
records, including arrests and dispositions, and to make them available to the Federal Government
and to Party States for authorized purposes.” Id. at § 40316(b). “The term ‘noncriminal justice
purposes’ means uses of criminal history records for purposes authorized by Federal or State law
While the defendants’ brief cites to the statute as previously codified at 42 U.S.C. § 14616, this codification was
transferred effective September 1, 2017, to 34 U.S.C. § 40316.
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other than purposes relating to criminal justice activities, including employment suitability,
licensing determinations, immigration and naturalization matters, and national security
clearances.” Id. at Art. I(18). In turn, the term “criminal justice” includes:
activities relating to the detection, apprehension, detention, pretrial release, posttrial release, prosecution, adjudication, correctional supervision, or rehabilitation of
accused persons or criminal offenders. The administration of criminal justice
includes criminal identification activities and the collection, storage, and
dissemination of criminal history records
Id. at (6)
In 2000, Connecticut entered the Compact as a party state through the enactment of General
Statutes § 29-164f. 7 Connecticut Public and Special Acts, P.A. 00-185 (2000). Both § 29-164f
and 34 U.S.C. § 40316 set forth the terms of Connecticut’s participation the Compact.
By its own text, the Compact itself does not appear to bar disclosure of the NCIC records
in absolute. The Compact contains ten Articles of which only one, Article IV “Authorized Record
Disclosures,” is relevant here. Article IV discusses how CHRI records may be exchanged but only
as to the FBI and the participating party states, not third-party individuals.
Subsection (a) mandates that the “FBI shall provide on request criminal history records
(excluding sealed records) to State criminal history record repositories for noncriminal justice
purposes allowed by Federal statute, Federal Executive order, or a State statute that has been
approved by the Attorney General and that authorizes national indices checks.” 34 U.S.C. § 40316,
Art IV(a). Similarly, subsection (b) provides that both the FBI and State criminal history record
repositories “shall provide criminal history records (excluding sealed records) to criminal justice
agencies and other governmental or nongovernmental agencies for noncriminal justice purposes
General Statutes § 29–164f provides in relevant part: “The National Crime Prevention and Privacy Compact is hereby
entered into and enacted into law with any and all of the states and the federal government legally joining therein . . .”
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 13 of 31
allowed by Federal statute, Federal Executive order, or a State statute that has been approved by
the Attorney General, that authorizes national indices checks.” Id. at (b). Subsection (c) governs
the procedures for these disclosures and states that “[a]ny record obtained under this Compact may
be used only for the official purposes for which the record was requested.”
Putting these provisions together, and by way of example only, if a school district is
considering employing a teacher that district may “request” the candidate’s CHRI records, such as
fingerprints, to perform a background check, which is an explicitly considered “noncriminal justice
purpose” pursuant to subsection (b), assuming there is an authorizing federal or state law allowing
so. See 34 U.S.C. § 40316(a); id. at Art IV(b). That agency, however, may not then use those
CHRI records outside that authorized noncriminal justice purpose of an employment suitability
check. Id. at Art IV(c).
Thus, on its face, there is nothing in the Compact’s text discussing or prohibiting the
disclosure in the discovery phase of federal civil litigation of records that may have already been
“requested” by an authorized party. Indeed, as Connecticut courts have noted, “the [C]ompact
does not contain an express prohibition on disclosure[.]” Comm’r of Pub. Safety v. Freedom of
Info. Comm’n, 144 Conn. App. 821, 827, 76 A.3d 185, 188 (2013); accord State v. Abushaqra,
No. H12MCR110235121S, 2015 WL 5135109, at *5 (Conn. Super. Ct. July 13, 2015), aff'd, 164
Conn. App. 256, 137 A.3d 861 (2016). In fact, the facts here do not appear to even implicate the
Compact as the COLLECT/NCIC records “requested” by the defendants at the time the plaintiff’s
arrest were clearly being used for criminal justice purposes, i.e., “the detection, apprehension,
detention . . . of [the] accused person[.]” Id. at Art. I(6). This scenario falls squarely outside of
the ambit of the Compact.
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Indeed, looking to the Compact as a whole, its text, history and purpose is to organize and
govern the exchange of CHRI records between “the Federal Government and the States” sought
“for noncriminal justice purposes authorized by Federal or State law” rather than to act as a purely
prophylactic barrier between the ratifying parties and the public or individual litigants. 34 U.S.C.
§ 40316(a); see id. at (b) (setting out the obligations of the parties as between “the FBI and the
Party States”); id. at Art. II(1) (stating that a purpose of the Compact is to “provide a legal
framework for the establishment of a cooperative Federal-State system for the interstate and
Federal-State exchange of criminal history records for noncriminal justice uses”).
The legislative history contained in the 1998 congressional floor debates explains:
The Compact facilitates the interstate and federal-state exchange of criminal
history information by clarifying the obligations and responsibilities of
participating parties, streamlining the processing of background search
applications, and eliminating record maintenance duplication at federal and state
levels. Finally, the Compact provides a mechanism for establishing and enforcing
uniform standards for record accuracy and for the confidentiality and privacy
interests of record subjects. . .
The Compact is an effort to get the FBI out of the business of holding a duplicate
copy of every State and local criminal history record, and instead to keep those
records at the State level. Once fully implemented, the FBI will only need to hold
the Interstate Identification Index (III), consisting of the national fingerprint file
and a pointer index to direct the requestor to the correct State records repository.
The Compact would eliminate the necessity for duplicate records at the FBI for
those States participating in the Compact.
144 Cong. Rec. S12036-03 (daily ed. Oct. 8, 1998) (statement of Sen. Jeffords), available at
1998 WL 716516.
Given the above, the defendants’ argument that the Compact itself acts as bar to disclosing
the relevant NCIC records concerning the plaintiff to the plaintiff for the purposes of civil litigation
is misplaced as the Compact clearly governs the relationship between Connecticut and the FBI
regarding CHRI records requested for noncriminal justice purposes. It is the conduct, or rather
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potential misconduct, of the party states, their agencies, or the FBI in accessing and using CHRI
and NCIC data for improper purposes, i.e., those that are not “noncriminal justice purposes,” that
appears to animate the Compact.
Federal law mentioning or construing the Compact is limited. 8 However, as it pertains to
the facts of this case, the Court finds the ruling in State v. Avery instructive, even if nonbinding.
See id., No. CR16284676, 2017 WL 6273543, at *2 (Conn. Super. Ct. Aug. 16, 2017). In Avery
the defendants sought to “compel the state to disclose certain information, claimed to be in the
state’s possession, in order to prepare a defense to their individual cases.” Id. at *2. This
information included copies of their prior criminal history held in NCIC records. Id.
the government agency respondents argued that “any dissemination of  NCIC” records “violates”
the Compact. Id. “The flaw in this argument, however,” the Avery court pointed out, “is that the
prohibition regulates the exchange of criminal history records for noncriminal purposes. The court
cannot find a prohibition on a prosecutor giving a criminal defendant a copy of his criminal history
record, such as a NCIC report or printout.” Id. Accord State v. Wilson, No. HHB-CR 14-0276060,
2017 WL 4872925, at *2 (Conn. Super. Ct. Sept. 8, 2017) (adopting the same conclusion); See
also In Re Watkins, 369 S.W.3d 702, 706 (Tx. App. 2012) (opining that, to the extent the State
obtained information containing Brady material, including from NCIC records, the State was
obligated to disclose that information).
The Court is aware of only the following limited cases, none of which are apposite or binding here. Williams v.
Fla., No. 20-61134-CIV, 2020 WL 13453299, at *2 (S.D. Fla. Nov. 13, 2020) (involving correction of criminal history
record), reconsideration denied, No. 20-61134-CIV, 2021 WL 9057665 (S.D. Fla. Aug. 16, 2021); Knecht v. City of
Cincinnati, Ohio, No. 1:12-CV-763, 2013 WL 3875324, at *4 (S.D. Ohio July 26, 2013) (mentioning the Compact in
qualified immunity context), report and recommendation rejected sub nom. Knecht v. City of Cincinnati, No. 1:12CV-00763, 2013 WL 4536886 (S.D. Ohio Aug. 27, 2013); Mix v. JPMorgan Chase Bank, NA, No. CV-15-01102PHX-JJT, 2016 WL 5850362, at *4 (D. Ariz. Oct. 6, 2016) (discussing Compact in employment termination context);
Barlow v. United States, No. 3:03-CR-16-FDW-2, 2015 WL 5944156, at *2 n.3 (W.D.N.C. Oct. 13, 2015) (citing to
definition section of Compact in a footnote); United States v. Davis, 233 F. App’x 944, 946 (11th Cir. 2007) (citing
to definition section of Compact in criminal case); Nat’l Day Laborer Org. Network v. U.S. Immigr. & Customs Enf’t
Agency, 827 F. Supp. 2d 242, 255 (S.D.N.Y. 2011) (citing Compact as evidence of ICE policy shift in a FOIA case).
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 16 of 31
While Avery was a criminal case and the defendants sought their NCIC records pursuant
to Connecticut’s rules of criminal procedure governing discovery, its principles nonetheless
suggest the same conclusion in this case. Here, the plaintiff seeks NCIC records that are relevant
to her own claims (and perhaps the defendants’ defenses) pursuant to a federal law authorizing
their production, FED. R. CIV. P. 26(b)(1). These records are not privileged. The Court cannot
find a prohibition under the text, history, or purpose the Compact that bars disclosure of the
withheld NCIC records in this case, and the defendants offer no authority to suggest that the
Compact bars disclosure. The defendants simply argue that the terms of the Compact, as codified,
provide “that the NCIC computerized database is to be used for limited purposes authorized by
law, such as background checks, and that NCIC records may only be used for official purposes.”
(Doc. No. 54 at 4). This statement fails to apprehend, as explained above, that the subjects “using”
the NCIC database for such limited purposes are the law enforcement officers, not the plaintiff,
and the troopers in this case did not access or use the NCIC database for any Compact-related
noncriminal justice purpose.
The Court also considers several other factors not raised by the parties, in supporting this
conclusion. First, federal regulations promulgated by National Crime Prevention and Privacy
Compact Council, 9 do not contain any bar on disclosure as discussed above. Rather, these rules
contain fingerprint submission requirements, 28 C.F.R. § 901, et seq.; dispute adjudication
procedures, id., at § 902, et seq.; State Criminal History Record Screening Standards, id., at § 904,
et seq.; National Fingerprint File (NFF) Program Qualification Requirements, id., at § 905, et seq.;
regulations governing the Outsourcing of Noncriminal Justice Administrative Functions id., at §
Article VI of the Compact “established a council to be known as the ‘Compact Council’, which shall have the
authority to promulgate rules and procedures governing the use of the III System for noncriminal justice purposes, not
to conflict with FBI administration of the III System for criminal justice purposes.” 43 U.S.C. § 40316, Art. VI.
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 17 of 31
906, et seq.; and Compact Council Procedures for Compliant Conduct and Responsible Use of the
Interstate Identification Index (III) System for Noncriminal Justice Purposes, id., at § 907, et seq.
Additionally, Connecticut’s statute ratifying the Compact, Conn. Gen. Stat. Ann. § 29164f, adopts the Compact’s language regarding authorized record disclosures verbatim. See id.,
at Art. IV.
Lastly, the plaintiff here does not herself seek in her discovery requests “direct access” to
the NCIC database or terminals to view her records. See 34 U.S.C. § 40316, Art I(10) (“Direct
access” means access to the National Identification Index by computer terminal); Jones v. City of
Elkhart, No. 2:10-CV-402-TLS, 2012 WL 2026327, at *2-3 (N.D. Ind. June 5, 2012) (affirming
denial of defendant’s motion to compel “requesting access to . . . NCIC  systems to view
Given the foregoing, the Court concludes that defendants have not carried their burden “of
showing why discovery should be denied” based on the Compact alone. Cole v. Towers Perrin
Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn. 2009).
28 U.S.C. § 534
The Court now turns to determine whether 28 U.S.C. § 534 nonetheless bars disclosure of
the withheld NCIC records requested pursuant to Rule 26(b). (See Doc. No. 54 at 3-5). 28 U.S.C.
§ 534 is found in Title 28 of the U.S. Code, Chapter 33, which concerns the organization and
authority of the Federal Bureau of Investigation (“FBI”) in the Department of Justice (“DOJ”). In
relevant part, § 534 regulates the “acquisition, preservation, and exchange of identification records
and information[.]” Id. Specifically, it mandates that the “Attorney General shall. . . acquire,
collect, classify, and preserve criminal identification records, crime, or other records.” Id., §
534(a)(1). These CHRI records are sometimes more colloquially referred to as “rap sheets.” See
U.S. Dep’t of Just. v. Reps. Comm. For Freedom of Press, 489 U.S. 749, 752, (1989) (hereinafter
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 18 of 31
Reporters Committee). The statute also requires the Attorney General to “exchange these records
with, and for the official use of, authorized officials of the Federal Government, the States” and
other agencies and institutions. 28 U.S.C. § 534(a)(4).
“The local, state, and federal law
enforcement agencies throughout the Nation that exchange rap-sheet data with the FBI do so on a
voluntary basis. The principal use of the information is to assist in the detection and prosecution
of offenders; it is also used by courts and corrections officials in connection with sentencing and
parole decisions.” Reporters Committee, 489 U.S. at 752.
The statute also provides that “the exchange of records and information authorized by
subsection (a)(4) of this section is subject to cancellation if dissemination is made outside the
receiving departments.” 28 U.S.C. § 534(b). The defendants argue that the statutory language,
accompanying caselaw, and Connecticut’s interest in remaining in the Compact precludes the
production of the NCIC records to the plaintiff here. (See Doc. No. 54 at 4). The Court does not
agree with any of these contentions.
First, the statutory text does not support a wholesale prohibition on disclosure of NCIC
Indeed, federal regulations governing the exchange of CHRI even provide for
“procedures by which an individual may obtain a copy of his or her identification record” from the
FBI, state or local criminal justice agency. See 20 C.F.R. § 20.34. Relatedly, federal regulations
addressing the dissemination of NCIC CHRI provide that it “may be made available . . . for” inter
alia, “other uses for which dissemination is authorized by federal law.” 28 C.F.R. § 20.33(a)(3). 10
Nowhere in their briefing do the parties address whether any federal regulations apply or bar disclosure. The Court
need not and will not decide an issue not briefed nor before it . In any case, the Court notes that the Supreme Court
of West Virginia concluded that an earlier version of 28 C.F.R. § 20.33 did not “impose an absolute bar to the release
of criminal history record information pursuant” to a subpoena issued pursuant the state’s civil discovery laws. State
ex rel. W. Virginia State Police v. Taylor, 201 W. Va. 554, 563-64, 499 S.E.2d 283, 293 (1997).
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 19 of 31
Rather, by its own text, § 534(a)(4) simply limits mandatory CHRI exchanges to those
that are for the “official use” of the designated “authorized officials.” To ensure that the privacy
interests of the subjects of those records are safeguarded, § 534(b) acts as an enforcement device
that allows the Attorney General, in his discretion, to cancel “the FBI's exchange of rap-sheet
information. . . if dissemination is made outside the receiving departments or related agencies.”
Reporters Committee, 489 U.S. at 765. As the Supreme Court has stated, “these statutes and
regulations, [i.e., 28 U.S.C. § 544,] taken as a whole, evidence a congressional intent to protect the
privacy of rap-sheet subjects, and a concomitant recognition of the power of compilations to affect
personal privacy that outstrips the combined power of the bits of information contained within.”
Id. (emphasis added). See 28 C.F.R. § 20.1 (“It is the purpose of these regulations to assure that
criminal history record information wherever it appears is collected, stored, and disseminated in a
manner to ensure the accuracy, completeness, currency, integrity, and security of such information
and to protect individual privacy.”). See also State v. Avery, No. CR16284676, 2017 WL 6273543,
at *2 (Conn. Super. Ct. Aug. 16, 2017) (concluding that section 534 “is about the treatment of rap
sheets as confidential and restricting their use to governmental purposes, while prohibiting access
of rap sheets to the general public”). However, the factual situation at play here is not one that
raises the privacy concerns that concerned Congress in enacting § 534 or the Supreme Court in
Reporters Committee; the plaintiff simply seeks, in discovery in a civil rights action, her own NCIC
records which were attached to the police report justifying her arrest. Moreover, as discussed
below, disclosing the withheld NCIC records to the plaintiff and her counsel alone, subject to a
standard protective order, does not appear to be “dissemination” as contemplated in the statute or
Supreme Court precedent.
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The defendants also appear to argue that subsection (f)(1) also prohibits disclosure because
it creates only a “narrow exception” to the exclusion of all others. 11 (Doc. No. 54 at 4).
This subsection provides:
Information from national crime information databases consisting of identification
records, criminal history records, protection orders, and wanted person records may
be disseminated to civil or criminal courts for use in domestic violence or stalking
cases. Nothing in this subsection shall be construed to permit access to such records
for any other purpose.
28 U.S.C. § 34(f)(1) (emphasis added).
“This [language] simply means that nothing in subsection (f) permits access to records for
any other purpose—not that access is never permitted for other purposes.” Mathews v. City of
Beaumont, No. 1:11CV268, 2012 WL 12906090, at *4 (E.D. Tex. Mar. 13, 2012) (emphasis in
original). This reading is confirmed elsewhere in the statute. For example, section (b) states that
the “exchange of records and information authorized by subsection (a)(4) of this section is subject
to cancellation if dissemination is made outside the receiving departments or related agencies[.]”
28 U.S.C. § 536(b) (emphasis added).
Second, the case law cited by the defendants does not support the argument that the
plaintiff’s NCIC records cannot be disclosed. The defendants rely on both Reporters Committee,
489 U.S. 749 (1989) and Comm’r of Pub. Safety v. Freedom of Info. Comm’n, 144 Conn. App.
821, 833, 76 A.3d 185, 192 (2013). (See Doc. No. 54 at 5-6). Reporters Committee involved
journalists who sought copies of FBI rap sheets of four members of an alleged crime family
pursuant to the federal Freedom of Information Act (“FOIA”). See Reporters Committee, 489 U.S.
at 757. The FBI denied the requests citing FOIA’s Exemption 7(C). Id. Exemption 7(C) excludes
The defendants’ brief states, “Subsection (f)(1) clearly demonstrates that access to NCIC records for any purpose
not contained within the [C]ompact is not permitted.” It is not clear from the text how this subsection of § 534 actually
relates to the terms of the Compact, which is an entirely separate statute enabling access to NCIC records for entirely
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 21 of 31
from FOIA’s reach records or information compiled for law enforcement purposes, “but only to
the extent that the production of such [materials] . . . could reasonably be expected to constitute an
unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Id. at 755–56. In examining
whether rap sheets were covered under Exemption 7(c), the Supreme Court first concluded that
“[t]he privacy interest in a rap sheet is substantial.” Id. at 771. In so doing, the Court looked, in
part, to § 534 and opined that its “careful and limited pattern of authorized rap-sheet disclosure fits
the dictionary definition of privacy as involving a restriction of information ‘to the use of a
particular person or group or class of persons.’” Id. at 765 (citation omitted). “Moreover. . . these
statutes and regulations, taken as a whole, evidence a congressional intent to protect the privacy
of rap-sheet subjects, and a concomitant recognition of the power of compilations to affect personal
privacy that outstrips the combined power of the bits of information contained within.” Id.
Ultimately, the Court held that, categorically balancing the public interest in disclosure against the
interest Congress intended the Exemption to protect, “a third party’s request for law enforcement
records or information about a private citizen can reasonably be expected to invade that citizen’s
privacy, and that when the request seeks no ‘official information’ about a Government agency, but
merely records that the Government happens to be storing, the invasion of privacy is
‘unwarranted.’” Id. at 780.
Similarly, Comm’r of Pub. Safety v. Freedom of Info. Comm’n, 144
Conn. App. at 824, involved reporters who sought results from inquiries made to the NCIC by the
Department of Public Safety pursuant to Connecticut’s state FOIA law. Relying on Reporters
Committee and its discussion of § 534, that court also ultimately concluded that the records sought
by the reporters could not be disclosed pursuant to the state FOIA law. Id. at 828-33.
What is clear about both these cases is that they share a concern about the invasion of
privacy interests held by citizens in the CHRI records compiled about them by law enforcement
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 22 of 31
and their potential dissemination to the public (or at least journalists) through FOIA statutes
outside of any litigation. This concern is simply not relevant here, where no party has invoked
FOIA, and the plaintiff is seeking her own NCIC records. Cf. State v. Avery, No. CR16284676,
2017 WL 6273543, at *2 (Conn. Super. Ct. Aug. 16, 2017) (finding “these two cases lend support
to the view that 28 U.S.C. § 534 and [the Compact] concern the protection of the confidentiality
of the reports and limiting disclosure outside of the criminal justice system and official
governmental purposes, rather than prohibiting criminal defendants from receiving copies of their
rap sheets or other criminal history records”). See also Golden Pac. Bancorp v. F.D.I.C., No. 95
CIV. 9281 (NRB), 2002 WL 31875395, at *5 (S.D.N.Y. Dec. 26, 2002), aff'd sub nom. Golden
Pac. Bancorp. v. F.D.I.C., 375 F.3d 196 (2d Cir. 2004) (“Though we recognize that a state court’s
interpretation of federal law is not binding . . . we nevertheless find the reasoning of the [state]
Court . . . persuasive, and adopt it here.”).
Lastly, the defendants raise the concern that disclosing five pages of NCIC records—only
one of which potentially contains CHRI—may result in Connecticut being terminated from the
Compact pursuant to § 534. (See Doc. No. 54 at 5-6). To be sure, this Court respects the
implications that cancellation from the Compact may have on both noncriminal justice activities
governed by the Compact and law enforcement efforts in Connecticut generally. See also King v.
Conde, 121 F.R.D. 180, 190 (E.D.N.Y. 1988) (“[A] strong policy of comity between state and
federal sovereignties impels federal courts to recognize state privileges where this can be
accomplished at no substantial cost to federal substantive and procedural policy.”).
However, the Court notes that, this provision is discretionary and only triggered when such
records have been “disseminated” outside the receiving departments or related agencies. 28 U.S.C.
§ 534(b). Given that disclosure here should be limited to the plaintiff and her attorney and subject
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 23 of 31
to a standard protective order, disclosure here and in this manner would not count as
“dissemination” triggering § 536(b), as that word has been understood both by the DOJ’s Office
of Legal Counsel (“OLC”)
in an opinion addressed to the Director of the FBI (the “OLC
Opinion”) and the Supreme Court in Reporter’s Committee.
In relevant part, the OLC Opinion discussed whether the cancellation provision of § 534
provided an absolute bar to potentially allowing government-authorized private contractors to
access CHRI data.
CRIM. HIST. RECS.
PERFORMING AUTHORIZED CRIM. JUST. FUNCTIONS, 22 U.S. Op. Off. Legal Counsel 119, 1998 WL
1751073 (1998). 13 As to the term “dissemination,” the OLC Opinion stated that:
a strong argument can be made that disclosures of the sort contemplated would not
constitute “dissemination” of the information, within the ordinary meaning of that
word. Indeed, the dictionary defines “dissemination” to mean “to spread or send
out freely or widely as though sowing or strewing seed: make widespread.”
Webster’s Third International Dictionary 656 (1986). Sharing information with
contractors who are assisting in law enforcement and who are subject to carefully
drawn controls would not appear to fall within this definition. Moreover, although
the meaning of the phrase “dissemination” may well vary based on context.
OLC Opinion, 1998 WL 1751073 * 3.
The Office of Legal Counsel, or OLC, is an office within the U.S. Department of Justice that drafts legal opinions
of the Attorney General and provides its own written opinions and other advice in response to requests from various
agencies within the executive branch. See 28 U.S.C. § 512 (providing that agency heads may seek legal advice from
the Attorney General); 28 C.F.R. § 0.25 (delegating Attorney General’s authority to render legal advice to OLC);
“Office of Legal Counsel,” The United States Department of Justice, https://www.justice.gov/olc.
While OLC opinions are not binding on this Court, the OLC Opinion is detailed and thoroughly well-reasoned, and
its conclusion advocating for recommending rulemaking was later adopted by the FBI. The Court thus finds that the
OLC Opinion is entitled to significant weight. See El Omari v. Int'l Crim. Police Org., 35 F.4th 83, 89 (2d Cir. 2022),
cert. denied sub nom. Omari v. Interpol, No. 22-117, 2022 WL 4654639 (U.S. Oct. 3, 2022) (finding, inter alia, an
OLC opinion “entitled to considerable persuasive weight” after the executive branch adopted its recommendation and
explaining that “the persuasiveness of the Executive Branch’s interpretation of statutes outside of the rulemaking
context depends, inter alia, on ‘the thoroughness evident in its consideration’ and ‘its consistency with earlier and
later pronouncements’” (quoting Gonzales v. Oregon, 546 U.S. 243, 268-69 (2006)); Casa De Maryland v. U.S. Dep't
of Homeland Sec., 924 F.3d 684, 692 (4th Cir. 2019) (“Although not binding on courts, OLC opinions reflect[ ] the
legal position of the executive branch and are generally viewed as providing binding interpretive guidance for
executive agencies.” (citation and internal quotation marks omitted)).
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Similarly, the Supreme Court’s understanding of the term in Reporters Committee
demonstrates that “dissemination” in § 534 is concerned with the availability and broadcast of
FBI’s CHRI records to the general public. See 489 U.S. at 753 (“Although much rap-sheet
information is a matter of public record, the availability and dissemination of the actual rap sheet
to the public is limited.”) (emphasis added); id. at 767 (“Given this level of federal concern over
centralized data bases, the fact that most States deny the general public access to their criminalhistory summaries should not be surprising.”) (emphasis added); id. at 771 (“[A]lthough the FBI's
policy of granting the subject of a rap sheet access to his own criminal history is consistent with
its policy of denying access to all other members of the general public”) (emphasis added). See
also Bartnicki v. Vopper, 532 U.S. 514, 537, 121 S. Ct. 1753, 1766, 149 L. Ed. 2d 787 (2001)
(Breyer, J. concurring) (“Media dissemination of an intimate conversation to an entire community
will often cause the speakers serious harm over and above the harm caused by an initial disclosure
to the person who intercepted the phone call.”). Here, the Court finds that disclosure to the plaintiff
(and her counsel) of her own NCIC records does not constitute “dissemination” as contemplated
by the § 534(b), which is primarily concerned with public broadcast.
In sum, the Court finds that the defendants have not shouldered their burden to justify
curtailing the plaintiff’s Rule 26(b) discovery request. Huseby, LLC v. Bailey, No. 3:20-CV-00167
(JBA), 2021 WL 3206776, at *6. Rather, as the Supreme Court of West Virginia opined in a
similar case examining the potential prohibition by federal regulations on the disclosure of NCIC
data sought pursuant to a state discovery statute, “the instant case illustrates, in a particular civil
case the contents of a person's criminal history record information may be necessary to the fair
resolution of significant issues in the litigation.” Cf. State ex rel. W. Virginia State Police v. Taylor,
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201 W. Va. 554, 565, 499 S.E.2d 283, 294 (1997). 14 “In such a case, substantial injustice and
unfairness might result from making potentially crucial information unavailable to litigants, by
imposing an absolute bar on obtaining the information by the use of civil process pursuant to
procedures authorized by” Rule 26(b). Id. Such a conclusion is further confirmed by the potential
of a contrary ruling that would “frustrate the important federal interests in broad discovery and
truth-seeking and the interest in vindicating important federal substantive policy such as that
embodied in section 1983.” King v. Conde, 121 F.R.D. 180, 187 (E.D.N.Y. 1988) (citing United
States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958);
Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 391, 91 L.Ed. 451 (1947)).
For the reasons just discussed, the Court GRANTS the plaintiff’s motion to compel
Request No. 10. (Doc. No. 44). The Court ORDERS the defendants to produce the four pages of
withheld NCIC records. The Court also makes clear that its ruling applies only to the four records
at issue in this litigation and is decided upon the facts presented to it and that its ruling is not
intended to create an opening for any broader requests for NCIC records.
As it does not appear that the Court has entered the District of Connecticut’s Standing
Protective Order, the parties may want to consider requesting that such an order issue here to
ensure that this discovery material is handled properly and not distributed to anyone other than the
plaintiff and her counsel. See FED. R. CIV. P. 26(c); Dorsett v. Cnty. of Nassau, 800 F. Supp. 2d
453, 457 (E.D.N.Y. 2011), aff'd sub nom. Newsday LLC v. Cnty. of Nassau, 730 F.3d 156 (2d Cir.
2013) (“It is well-settled that courts have broad power to enter protective orders under Rule
26(c) that prohibit parties from sharing discovery materials with non-litigants. [S]uch orders are
In the West Virginia case, the court addressed “whether there is an absolute bar to a non-governmental party
obtaining criminal history record information about an individual who will not consent to the release of the information
by means of a court order enforcing a subpoena duces tecum issued in a civil action to a governmental or law
enforcement agency.” Taylor, 201 W. Va. at 562.
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 26 of 31
typically referred to as ‘confidentiality orders’” (citing AT & T Corp. v. Sprint Corp., 407 F.3d
560, 562 (2d Cir.2005)) (affirming and upholding a protective order preventing public
dissemination internal report that the plaintiff obtained from the defendant Nassau County Police
Department in discovery); Mercer v. Rovella, No. 3:16-CV-329 (CSH), 2022 WL 1514918, at *3
(D. Conn. May 12, 2022) (“Rule 26 vests the trial judge with broad discretion to tailor discovery
narrowly and to dictate the sequence of discovery.” (citation and internal quotation marks
The Defendants’ Disciplinary Records
In their joint status report, the parties stipulated that Interrogatory No. 8 and Request for
Production No. 11 required resolution by the Court. 15 (Doc. No. 74). However, in the initial
briefing on the motion to compel it appears that only Request for Production No. 11 was in dispute.
(See Doc. Nos. 42-1 at 8-11; 54 at 7-9). Given that both requests seek the same essential
information, the Court will resolve both.
In Interrogatory No. 8, the plaintiff demands that the defendants:
Identify any and all civilian complaints or internal disciplinary proceedings having
to do with alleged abuses of your powers as a law enforcement officer, of which
you were a subject. As to each such proceeding, state:
a. The substance of any change made against you in each such proceeding;
b. The name and address of each person who brought such charges;
c. The date and outcome of each such proceeding, including the date and nature of
any subsequent disciplinary action against you, if any was taken.
The joint status report is confusing as it states, “The Parties request the Court rule on Plaintiff’s Motion to Compel
a response to Interrogatory #8 and Request for Production #8,” yet the request for production subsequently cited is
No. 11, which is consistent with the parties briefing. Accordingly, the Court treats this as a scrivener’s error and only
addresses Interrogatory No. 8 and Request for Production No. 11.
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 27 of 31
In Request for Production No. 11, the plaintiff seeks
Any and all police records concerning internal disciplinary procedures, regardless
of the outcome, to which defendants have been subjected while employed as a
(Doc. No. 74 at 1-2).
The defendants objected to Interrogatory No. 8 on the grounds that the “request is overly
broad and vague in its reference to ‘abuses of power’ and is not limited to relevant information.”
(Id.). As to Request for Production No. 11, the defendants objected on the grounds that the request
was not limited to relevant information but that the “Defendants agree[d] to respond to this request
as limited to disciplinary proceedings involving allegations of misconduct similar to the plaintiff’s
claims in this case, i.e., false arrest/malicious prosecution” of which there was “None.” (Id.).
During the meet and confer process in February 2022, the defendants maintained their
objections to these requests as to documents but agreed that they were “willing to provide any
responsive records of civilian complaints and disciplinary proceedings that are similar to the claims
alleged in the complaint, i.e. false arrest, malicious prosecution, and retaliatory prosecution, but
nothing beyond that.” (Doc. No. 42-2, at § 7; Doc. No. 54 at 7). The plaintiff maintains that the
defendants’ “entire disciplinary records are relevant to Plaintiff’s claims and should be produced”
and that the “Plaintiff is entitled to review Defendants’ entire disciplinary files and determine for
herself what is arguably relevant to the allegations in her Complaint.” (Doc. No. 42-2 at 8, 10).
The plaintiff also argues that disciplinary records that are indicative of the defendants’ veracity or
truthfulness are also relevant and should be produced. (Id. at 9, 11).
As an initial matter, the Court agrees that the defendants’ disciplinary records may be
relevant to the claims raised here, and thus discoverable, on the theory that they may be used to
prove the defendants’ intent. (Doc. No. 42-1 at 8-9). FED. R. CIV. P. 404(b)(2) (evidence of “other,
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 28 of 31
crime, wrong, or act . . . may be admissible for another purpose, such as proving . . . intent.”). See
Frails v. City of New York, 236 F.R.D. 116, 117 (E.D.N.Y. 2006) (finding the plaintiff “correct as
to his theory” that the “records of unsubstantiated allegations of misconduct are discoverable
under” are relevant “to prove defendants’ intent” under FED. R. CIV. P. 404(b)(2)); Fountain v.
City of New York, No. 03 CIV. 4526 (RWS), 2004 WL 941242, at *2 (S.D.N.Y. May 3, 2004), on
reconsideration in part, No. 03 CIV 7790 RWS, 2004 WL 1474695 (S.D.N.Y. June 30, 2004).
Additionally, courts in this Circuit have also found that disciplinary records and complaints
involving allegations of “direct dishonesty” of the defendant in police misconduct actions are
relevant. Saavedra v. City of New York, No. 19 CIV. 7491 (JPC), 2021 WL 104057, at *2
(S.D.N.Y. Jan. 12, 2021) (in false arrest case against police officers, “[t]he Court  cho[se] to
follow the ‘prevailing practice’ of courts in this Circuit and limit discovery to complaints that are
similar in nature to the allegations in the Complaint or that directly involve dishonesty.”). See
Younger v. City of New York, No. 03 Civ. 8985 (VM) (MHD), 2006 WL 1206489, at *1 (S.D.N.Y.
May 2, 2006) (holding in excessive force case that “complaints or disciplinary charges that do not
involve the type of misconduct at issue here. . . or acts that involve some element of dishonesty
are not likely to be relevant to the claims or defenses in this case, and therefore documents
pertaining to such complaints or charges need not be produced”).
What is clear, though, is that the “longstanding ‘prevailing practice’ of courts throughout
the Second Circuit is to ‘limit discovery of a defendant's disciplinary history to complaints,
whether substantiated or not, about conduct similar to the conduct alleged in the complaint.’”
Saavedra, 2021 WL 104057, at *1 (quoting Gibbs v. City of New York, No. 06 Civ. 5112 (ILG)
(VVP), 2008 WL 314358, at *1 (E.D.N.Y. Feb. 4, 2008)) (emphasis added); accord Session v.
Rodriguez, No. 3:03CV0943 (AWT), 2008 WL 2338123, at *2 (D. Conn. June 4, 2008). See
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 29 of 31
Gibbs, 243 F.R.D. at 96 (S.D.N.Y. 2007) (“[A]ny proceeding-whether administrative, civil or
criminal-in which one of the defendants was charged with or investigated for possible abuses of
the type alleged by plaintiff could yield relevant information[.]” (emphasis in original) (citation
omitted)); Frails, 236 F.R.D. at 118 (“Accordingly, defendants are hereby ordered to
produce all CCRB, IAB, and NYPD records of both substantiated and unsubstantiated complaints
of misconduct against the defendant police officers of a similar nature to the claims in the
complaint.”) (collecting cases); Harnage v. S. Barrone, No. 3:15CV01035(AWT), 2017 WL
3448543, at *6 (D. Conn. Aug. 11, 2017) (“Generally, in a section 1983 case such as this,
‘[d]isciplinary records involving complaints of a similar nature, whether substantiated or
unsubstantiated, could lead to evidence that would be admissible at trial and thus, are
discoverable.’” (quoting Frails, 236 F.R.D. at 117-18)). Cf. Reyes ex rel. Reyes v. City of New
York, No. 00 Civ. 2300 (SHS), 2000 WL 1528239, at *1 (S.D.N.Y. Oct. 16, 2000) (explaining that
where New York City Civilian Complaint Review Board (“CCRB”) records “contain allegations
wholly unrelated to those in the complaint, their relevance has been found to be too tenuous to
allow discovery” (internal quotations and citation omitted)).
Thus, as currently framed, Interrogatory 8 is overly broad as it is not properly limited in
temporal scope and potentially seeks the identification of every complaint relating to “alleged
abuses of power” made against each defendant since the beginning of time. See Harnage, No.
3:15CV01035(AWT), 2017 WL 3448543, at *6. Accordingly, the Court sustains, in part, the
defendants’ objection to Interrogatory 8 on the grounds of relevance and over breadth. However,
the Court will GRANT, in limited part, the plaintiff’s motion to compel as to Interrogatory 8.
Specifically, the defendants shall answer Interrogatory No. 8 but only as to any and all
civilian complaints or internal disciplinary proceedings against the defendants “of a similar
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 30 of 31
nature to the claims in the complaint,” that is having to do with alleged false arrest, malicious
prosecution, and retaliatory prosecution or complaints that involve “direct dishonesty.” The
plaintiff is entitled to discovery of records and answers to the interrogatory “concerning allegations
of a similar nature.” Saavedra v. City of New York, No. 19 CIV. 7491 (JPC), 2021 WL 104057,
at *3 (S.D.N.Y. Jan. 12, 2021) (citing Reyes, 2000 WL 1528239, at *2). “This does not mean
‘only complaints that are identically labeled’ as the allegations in the” Second Amended
Complaint. Id. (citation omitted). The answers shall include the date and outcome of any
identified grievance, complaint, or disciplinary proceeding and only detail such incidents that
occurred during their time as police officers.
For the same reasons, Court will GRANT, in limited part, the plaintiff's motion to compel
as to Request for Production No. 11. The defendants shall produce the police records concerning
internal disciplinary procedures, regardless of the outcome, but only to the extent they involve
claims of false arrest, malicious prosecution, and retaliatory prosecution or involve “direct
Any privacy concerns by the defendants “can be alleviated by an appropriate protective
order and the redaction of personal information (like the officers’ addresses and social security
numbers) from the reports.” Gibbs, 243 F.R.D. 95, 96 (S.D.N.Y. 2007). See FED. R. CIV. P. 26(c).
In summary and for the reasons set forth above:
1. The plaintiff’s motion to quash, (Doc. No. 37), is DISMISSED as moot;
2. The plaintiff’s motion to compel, (Doc. No. 42), is GRANTED in part subject to
a. Within 14 days of this Order, the defendants shall produce the four pages of
NCIC records concerning the plaintiff that are currently being withheld;
Case 3:20-cv-01014-JCH Document 75 Filed 11/17/22 Page 31 of 31
b. Within 30 days of this Order, and as to each defendant, the defendants shall
answer Interrogatory No. 8 and identify any and all civilian complaints or
internal disciplinary proceedings having to do with alleged complaints of
false arrest, malicious prosecution, retaliatory prosecution, or direct
dishonesty during their employment as police officers.
c. Within 30 days of this Order, and as to each defendant, the defendants shall
produce documents responsive to Request for Production No. 11, i.e., any
and all police records concerning internal disciplinary procedures,
regardless of the outcome, to which defendants have been subjected while
employed as a police officer, limited to discipline for false arrest, malicious
prosecution, retaliatory prosecution, or direct dishonesty.
To the extent that the parties seek entry of the Standing Protective Order, they shall submit
a joint request on or before 14 days after the entry of this Order. “The parties are urged to work
cooperatively on this issue to eliminate the need for further litigation. If the parties are unable to
agree, each may file its own request by that date, including both a proposed order for the court's
endorsement and a memorandum of law citing authority in support of its position.” Session v.
Rodriguez, No. 3:03CV0943 (AWT), 2008 WL 2338123, at *3 (D. Conn. June 4, 2008).
This is not a Recommended Ruling. This Ruling is reviewable pursuant to the “clearly
erroneous” statutory standard of review. See 28 U.S.C. § 636(b)(1)(A); FED. R. CIV. P. 72(a); and
D. CONN. L. CIV. R. 72.2. As such, it is an order of the Court unless reversed or modified by the
district judge upon timely made objection.
Dated at New Haven, Connecticut, this 17th day of November, 2022.
__/s/ Robert M. Spector, USMJ_________
Robert M. Spector
United States Magistrate Judge
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