Opinion
Introduction
Petitioner, Department of Motor Vehicles (the DMV), seeks a writ of mandate directing respondent court to vacate its order requiring it to produce to the People its unredacted records concerning real party in interest, Teodorico Manliclic Carmona
The DMV contends that entries in Carmona’s driving record relating to his physical or mental condition are absolutely privileged (1) under section 1808.5, which provides, in relevant part: “all records of the department relating to the physical or mental condition of any person ... are confidential and not open to public inspection”; and (2) under Evidence Code section 1040, subdivision (b), the official information privilege.
We hold that: (1) section 1808.5 does not create a privilege, independent of Evidence Code section 1040, to withhold information required to be produced by subpoena; (2) although the DMV established that its claim of privilege involved “official information” within the meaning of Evidence Code section 1040, section 1808.5 does not forbid disclosure of such official information within the meaning of Evidence Code section 1040, subdivision (b)(1); and (3) under Evidence Code section 1040, subdivision (b)(2), the necessity for disclosure of complete copies of Carmona’s driving records outweighs the DMV’s interest in preserving confidentiality. Accordingly, we find that the trial court’s order requiring the DMV to produce to the People the entirety of Carmona’s driving records was a sound exercise of discretion, and we deny the petition.
Factual and Procedural Background
On May 24, 2000, Carmona, while traveling on the 101 Freeway, clipped one car, rear-ended another a mile later, and then hit a third vehicle, a utility truck, causing it to overturn and kill the driver. Witnesses reported Carmona to have been making unsafe and precipitous lane changes and to have been driving at excessive speeds. A short distance after hitting the utility truck, Carmona’s car stopped in the center divider. A witness who encountered Carmona shortly after his car stopped described him as clammy, bluish, and staring blankly.
Carmona was transported for medical care. While hospitalized, he made a statement to a California Highway Patrol (CHP) officer investigating the accident. That statement, as well as witness statements, was contained in an accident report generated by the CHP and filed with the DMV.
Subsequently, Carmona was charged with vehicular homicide. On August 2, 2001, the People served the DMV with a business records subpoena duces tecum (the subpoena) requiring it to produce: ’’All documents maintained by DMV regarding driving record of Teodorico Manliclic Carmona . . . including: Copy of file of physical investigation/lapse of consciousness, priority re-examination, interview contact 8-16-99, tape recording and official transcript of hearing, all documents submitted, including any submitted or referenced by Mr. Carmona; and Copy of file of fatal, including same of all [.sic]; and certified copy of driver’s record/green & white printout; and certified copy of H6 printout; and any and all other documents
On August 24, 2001, the DMV responded to the subpoena by transmitting to the clerk of the court an unsigned custodian of records declaration purporting to transmit “true and correct copies of available records.” A letter accompanying the records and the custodian of records declaration provided: “Your attention is respectfully directed to the provisions of Section 1808.5 of the Vehicle Code regarding the confidentiality of records of the department relating to physical or mental conditions and Section 1653.5(e) V.C. regarding confidentiality of Social Security Numbers. HD You may also notice that portions of the attached material deemed confidential have been redacted, as they apply to procedures for updating our database.” Neither the custodian of records declaration nor the letter identified what had been redacted or otherwise withheld under a claim of confidentiality.
A. The Records Produced by the DMV
The DMV produced 96 pages of documents in response to the People’s subpoena for Carmona’s driving record, of which 18 pages appear to be redacted. The redactions are contained in documents discussing Carmona’s medical history, including records related to administrative proceedings placing his driving privileges on medical probation and revoking them.
B. Trial Court Proceeding on the DMV’s Motion
On October 24, 2001, in the criminal action, the DMV filed a noticed “Motion for Order Modifying Subpoena, or, in the Alternative for a Protective Order,” citing to Code of Civil Procedure section 1987.1 (motion to quash), section 1808.5 (DMV records of medical and physical condition confidential), and Evidence Code section 1040, subdivision (b) (official information privilege), seeking an order relieving it from producing the redacted information. The DMV contended that section 1808.5 rendered the redacted information confidential and not subject to disclosure, disclosure was against the public interest in driver safety because confidentiality of medical evaluations was necessary to ensure accurate reporting, the information was available from nonprivileged sources, and Carmona’s consent to disclosure had no effect on the DMV’s independent assertion of privilege.
The People filed a joint opposition to the motion and a motion to compel, in which it informed the court that Carmona intended to pursue an affirmative defense of unconsciousness due to diabetic coma, and that the voluntariness of any unconsciousness would be at issue in the pending criminal proceeding. The People contended plausible justification had been established for the subpoenaed documents. Carmona had been involved in a 1999 traffic accident, which he had attributed to his diabetic condition. Therefore, evidence of his knowledge of his condition, including his prior statements about it, as well as his eating, sleeping, driving, and medication practices, were material to whether he had knowingly failed to exercise the caution of a similarly situated reasonably prudent driver. The People disputed that section 1808.5 created an absolute privilege, and maintained that, on balance, the public interest was best served by disclosure.
The DMV’s reply papers were supported by a déclaration by the chief of the DMV’s
On January 24, 2002, the DMV’s motion was heard. Carmona joined with the People in seeking that the DMV be required to produce unredacted copies of his driving record, and on that basis, the trial court ordered the DMV to comply in full with the People’s subpoena.
On February 11, 2002, the DMV filed a petition for writ of mandate, contending that section 1808.5 and Evidence Code section 1040 created statutory privileges to withhold the medical information contained in Carmona’s driving record, unaffected by Carmona’s consent to release the information. We stayed production of the DMV’s records, issued an order to show cause, and set the matter for hearing.
Standard of Review
Appellate review of issues of statutory construction is de novo.
{Redevelopment Agency
v.
County of Los Angeles
(1999)
Appellate review of discovery orders applying the law to facts is under the abuse of discretion standard. We set aside the court’s order granting or denying discovery only where it has been demonstrated that discretion was abused.
(People
v.
Superior Court (Baez)
(2000)
The Parties’ Contentions
The DMV contends that the trial court abused its discretion in ordering it to disclose the entirety of Carmona’s records, because section 1808.5 requires it to keep driver medical information absolutely confidential, section 1808.5 and Evidence Code section 1040 set forth absolute privileges with respect to driver medical information, and even in the absence of an absolute privilege, the public interest in maintaining confidentiality of medical information in Carmona’s records outweighs the need for disclosure.
The People assert that Evidence Code section 1040 is the only statutory privilege under which medical information in the DMV’s records can be withheld, the DMV’s information concerning Carmona’s medical condition is conditionally privileged under Evidence Code section 1040, subdivision (b)(2), and the trial court acted properly in ordering the DMV to produce unredacted copies of its records, because the People and Carmona’s joint interest in disclosure of the records outweighs the DMV’s interest in maintaining their confidentiality.
Discussion
The People described the information it sought with specificity and stated good cause for its production. The DMV then bore the burden of establishing its entitlement to its claim of privilege
(D.I. Chadbourne, Inc. v. Superior Court
(1964)
The Evidence Code generally- “establishes the law of this state respecting the subject to which it relates” (Evid. Code, § 2), and absent a statute stating otherwise, the Evidence Code privilege statutes apply to all legal “proceedings” in which a claim of privilege is made after December 31, 1966. (Evid. Code, §§ 12, subds. (a) & (c), 910.)
In sum, absent either an Evidence Code section establishing a privilege for the DMV to refuse to produce a writing, or a statute expressly creating such a privilege outside the Evidence Code, no such privilege exists. (Evid. Code, §§ 2, 12, subd. (c), 911, subd. (b).)
A. Section 1808.5
The DMV contends that the language in section 1808.5, deeming “all records of the [DMV] relating to the physical or mental condition of any
person . . . confidential and not open to public inspection,”
3
creates a privilege independent of the Evidence Code. We disagree. Characterizing information as confidential from public inspection is not the equivalent of establishing a privilege in a legal proceeding. Section 1808.5 does not use the term “privilege” nor does it invoke the concept of privilege as that term used in the Evidence Code or discovery statutes. (Accord,
Davies
v.
Superior Court
(1984)
We are constrained to interpret statutes by examining their actual language. “We are required to give effect to statutes ‘according to the usual, ordinary import of the language employed in framing them.’ [Citations.]”
(Moyer
v.
Workmen’s Comp. Appeals Bd.
(1973)
Moreover, in determining legislative intent, our responsibility is to construe the words of a statute “in context in light of the nature and obvious purpose of the statute where they appear. [Citation.]”
(Decker
v.
City of Imperial Beach
(1989)
The obvious and stated purpose of section 1808.5 is to render physical and mental condition information “confidential and not open to public inspection.” Placing this language in context confirms that it merely provides a limitation on public disclosure, not an evidentiary privilege.
In general, the records of the DMV “shall be open to public inspection during office hours.” (§ 1808, subd. (a).) The DMV is authorized to sell the information in its files and to charge for providing the inspection or sale of information. (§ 1810, subd. (a).) The Legislature has enacted limitations and exceptions to the inspection and sale of information in the DMV’s files. These limitations and exceptions appear at sections 1808.2 through 1808.24. Section 1808.5, declaring physical and mental condition information confidential from public inspection, is placed with the statutes declaring certain home addresses confidential.
Specifically, sections 1808.2, 1808.4, and 1808.6 declare that the home addresses of identified public officials and public employees, and of their spouses and children, are “confidential.” A confidential address under section 1808.2 is “confidential” without qualification. A confidential address under sections 1808.4, subdivision (b), and 1808.6, subdivision (b), “shall not be disclosed to any person,” except a court, a law enforcement agency, the State Board of Equalization, and “[a]ny governmental agency to which, under any provision of law, information is required to be furnished from records maintained by the department.” Section 1808.4 provides an additional exception to confidentiality for “[a]n attorney in a civil or criminal action that demonstrates to a court the need for the home address, if the disclosure is made pursuant to a subpoena.” (§ 1808.4, subd. (b)(4).)
Section 1808.21 provides that residence address information is confidential and “shall not be disclosed to any person, except a court, law enforcement agency, or other governmental agency, or as authorized by Section 1808.22 or 1808.23.” Section 1808.7 declares confidential the record of a driver’s participation in traffic school, driving school, and court-ordered driving instruction, and provides that it “shall not be disclosed to any person, except a court, . . .” Section 1808.24 provides that the DMV’s information concerning any motor vehicle liability insurance policy “is confidential and shall not be disclosed to any person,” except to a court of competent jurisdiction, a law enforcement or other governmental agency, or parties involved in an accident reported to the DMV.
While these statutes differ in their particulars, they do not show a legislative intent to create a privilege. Collectively, they acknowledge that information confidential for purposes of public inspection may nevertheless be necessary for and subject to disclosure in legal and other official proceedings. In other words, if “confidential” meant “privileged,” it would be repugnant to include language allowing for the disclosure of such confidential information. Applying the well-established rules of statutory construction, we find the word “confidential” in section 1808.5 synonymous with the word “confidential” as used in these statutes. Confidentiality does not equate with privilege.
Accordingly, insofar as the DMV’s claim of privilege not to produce Carmona’s complete driving record rests upon section 1808.5, we reject it. We then turn our
B. Evidence Code Section 1040
The DMV claims an absolute privilege under Evidence Code section 1040, subdivision (b), which provides, in relevant part: “(b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and: RQ (1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state; or [^] (2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice;
1. Evidence Code Section 1040 Establishes a Privilege for Statutorily Defined “Official Information”
Subdivision (a) of Evidence Code section 1040 defines “official information” within the meaning of the statute as “information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.”
The People contend that the DMV failed to establish the preliminary fact of “information acquired in confidence,” a threshold burden for claiming a privilege under Evidence Code section 1040.
(Marylander v. Superior
Court (2000)
In
County of Orange v. Superior Court
(2000)
Likewise, medical information is by its nature confidential and widely treated as such. “A person’s medical profile is an area of privacy infinitely more intimate, more personal in quality and nature than many areas already judicially recognized and protected.”
(Board of Medical Quality Assurance v. Gherardini, supra,
. 2. Section 1808.5 Is Not a Statute That “Forbids Disclosure” Within the Meaning of Evidence Code Section 1040, Subdivision (b)(1)
Because medical information satisfies the “official information” requirement of Evidence Code section 1040, our next query is whether its disclosure is forbidden by statute. The same reasons that led us to conclude that section 1808.5 does not establish a privilege lead to the conclusion that it is not a statute, within the meaning of Evidence Code section 1040, that “forbids disclosure.”
Additionally, section 1808, the general public disclosure statute, demonstrates that a provision that certain records of the DMV are confidential is not equivalent to declaring their disclosure forbidden by law. Section 1808 generally defines which of the DMV’s records are open to public disclosure. It provides, in pertinent part: “Except where a specific provision of law prohibits the disclosure of records or information or provides for confidentiality, all records of the department relating to the registration of vehicles, other information contained on an application for a driver’s license, abstracts of convictions, and abstracts of accident reports required to be sent to the department in Sacramento, . . . shall be open to public inspection during office hours. . . .” (§ 1808, subd. (a), italics added.)
We understand the use of the disjunctive in section 1808, subdivision (a), to define two separate and different categories of statutes: (1) statutes that “prohibit[] the disclosure of records,” and (2) statutes that “provide!] for confidentiality.” A statute that “prohibits the disclosure of records” would invoke the absolute privilege of Evidence Code sections 1040 and 1041. 4 A statute that “provides for confidentiality,” would not. This is not to say that a statute that “provides for confidentiality” does not express a strong public policy of nondisclosure, but is to say that the policy does not rise to the level of an absolute prohibition, thereby precluding a case-by-case judicial determination that weighs the public policy against disclosure of specified information against a particular party’s interest in obtaining that information.
The DMV relies on
Richards v. Superior Court
(1968)
We are unpersuaded by Richards for several reasons. First, Richards expressly limits its holding to its facts. (Richards, supra, 258 Cal.App.2d at p. 637.) Second, Richards’s conclusion that former Unemployment Insurance Code sections 2111 and 2714 create an absolute privilege under Evidence Code section 1040, subdivision (b)(1), is inconsistent with its comment that a different result might be reached if the subject of the medical records were seeking the records for her own benefit. (Richards, supra, at p. 638, fn. 2.) We do not agree with Richards’s conclusion that “whether a statute prohibits disclosure is a matter of interpretation of that statute as applied to the case in which disclosure is sought.” (Id. at p. 638, fn. omitted.) In our view, whether disclosure of specified official information is prohibited by statute is a matter of statutory construction, and the weighing of interests is the essence of a conditional, not an absolute, privilege. Third, the language contained in section 1808.5 is entirely different from that of former Unemployment Insurance Code sections 2111 and 2714, at issue in Richards. In particular, Unemployment Insurance Code section 2714, by declaring Department of Employment medical information to be inadmissible in any proceeding not arising under the Unemployment Insurance Code division related to disability benefits, expressed a much stronger public policy against public disclosure than does section 1808.5. 7
Finally, the DMV’s own statements in the record demonstrate that section 1808.5 does not, in fact, forbid the disclosure of medical information in its records. On August 18, 1999, the DMV issued a notice of decision of medical probation that placed Carmona’s driver’s license on medical probation. Accompanying the decision was an advisement that Carmona had a right to a further hearing, the right to be represented by any person of his choosing at the hearing, and the right to inspect and copy the documents related to the DMV’s decision. The notice of decision, citing section 1808.5, also informed Carmona that
3. The Trial Court Did Not Abuse Its Discretion
The DMV’s only remaining colorable claim of privilege is under Evidence Code section 1040, subdivision (b)(2), which required the trial court to determine whether there is a “necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice.”
The People and Carmona have an interest in a document that is relevant to Carmona’s defense to the vehicular homicide charge. “A criminal defendant’s right to discovery ... ‘is based on the “fundamental proposition that [an accused] is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information.” ’ ”
(People
v.
Luttenberger
(1990)
Under the circumstances of this case, we conclude that the DMV’s interest is outweighed by the People’s and Carmona’s interests herein. In August 1999, following an administrative proceeding, the DMV limited Carmona’s privilege to drive by placing his license on medical probation. As a consequence, the DMV was required to and did make the records justifying its decision available to Carmona, including confidential documents under section 1808.5. (§ 14100.) The DMV’s interest in confidentiality is no greater a year later, when Carmona’s liberty, not his license, is at risk.
Disposition
The petition for writ of mandate is denied. The order to show cause is discharged, and the stay of the order requiring the DMV to produce its entire file of documents related to Carmona’s driver’s license is dissolved.
Boren, P. J., and Nott, J., concurred.
Notes
A11 further statutory references are to the Vehicle Code unless otherwise indicated.
Carmona made no appearance in this proceeding.
Section 1808.5 provides: “Except as provided in Section 22511.58 [designation of off-street parking for disabled persons], all records of the department relating to the physical or mental condition of any person, and convictions for any offense involving the use or possession of controlled substances under Division 10 (commencing with Section 11000) of the Health and Safety Code not arising from circumstances involving a motor vehicle, are confidential and not open to public inspection."
Evidence Code section 1040, subdivision (b)(1), the official information privilege, and Evidence Code section 1041, subdivision (a)(1), the privilege for the identity of an informer, contain the same language: “Disclosure is forbidden by an act of the Congress of the United States or a statute of this state; . . .”
Richards
was the basis of a 1972 Attorney General Opinion (
As quoted in
Richards, supra,
Likewise, so far as was relevant to Richards, supra, 258 Cal'.App.2d at page 637, Unemployment Insurance Code section 2714 provided: “ ‘All medical records of the department . . . shall be confidential and shall not be published or be open to public inspection in any manner revealing the identity of the claimant, or the nature or cause of his disability. Such records are not admissible in evidence in any action or special proceeding other that [sic] arising under this division. . . .’ ”
The two Unemployment Insurance Code sections that Richards concluded created an absolute privilege under Evidence Code section 1040 subsequently were amended. Unemployment Insurance Code section 2111, as currently enacted, does not declare violation of confidentiality a misdemeanor. Unemployment Insurance Code section 2714 does not declare the department’s medical information inadmissible except in proceedings under the division.