Douglas v. Windham Superior Court

Dooley, J.

The Vermont Secretary of State, as custodian of the records of the Vermont State Board of Nursing, petitions this Court for extraordinary relief from a trial court order directing him to produce certain documents in response to a pretrial discovery request. We decline to grant the relief requested and dismiss the petition.

Respondents here are the Windham Superior Court and the plaintiffs in a personal injury action against a registered nurse licensed by the Board, the hospital that employs her, and the hospital’s administrator. The suit alleges, inter alia, that defendant nurse injected herself with drugs that should have been administered to plaintiff, Barbara Wilkinsen, and then injected water in the tainted syringes into Barbara Wilkinsen to conceal the diversion. The complaint also alleges that the hospital and its administrator hired the nurse without properly investigating her background and physical condition and that they failed to supervise her properly or monitor her physical condition during the term of her employment.

In the course of pretrial discovery, plaintiffs served requests to produce on petitioner, who is the statutory custodian of the Board’s records, seeking the following:

1. Any and all complaints of professional misconduct directed against [the nurse].

2. The complete contents of any and all files maintained by or in the custody of any employee or agent of the Secretary of State concerning any complaint of professional misconduct against and/or any possible discipline of [the nurse], including the complete contents of any investigative file.

3. The complete minutes of any meeting of the Vermont State Board of Nursing at which any complaint of professional misconduct on the part of [the nurse] or any disciplinary action or possible disciplinary action against [the nurse] was discussed.

4. Any other records involving the licensure and/or discipline of [the nurse] as a registered nurse.

(Emphasis added.) Petitioner responded by supplying the nurse’s application for licensure, the stipulation of settlement of the complaints against her, and the minutes of a Board meeting of June 12,1989. He moved to quash the balance of the request on grounds that the material requested was privileged and not subject to discovery. The motion was accompanied by an affidavit of petitioner who stated he had personally reviewed the file of the nurse. He indicated that the file contained a report to the Board from one of his investigators transmitting the oral complaint and his preliminary investigation of it. He also indicated that the file contains a more complete report from the investigator, notes made by the executive director of the Board during the investigation, and notes of a meeting between the investigators and the nurse. The file also contains a stipulation of settlement between the nurse and the Board, a copy of which was provided to respondent. The stipulation contains an admission by the nurse that she diverted drugs for her personal use while employed by the hospital.

The affidavit of petitioner stated reasons why he refused to comply with the request to produce. As to the two reports of the investigator, he asserted that they name persons who provided information and that investigatory procedure “calls for the investigation stage to be confidential, and people providing information are routinely told that.” He asserted that complaints often come from nurses and they would be deterred from complaining if they knew the information would be provided to private persons for use in litigation against their employer. He also asserted that the remaining complaints come from patients, who would also be deterred from complaining if details of their medical treatment were to be revealed. Overall, he believed that revealing investigative reports would “undercut the effectiveness of nursing regulation by revealing investigative techniques.”

As to the notes of the Board’s director, petitioner asserted that these also include the names of persons who provided information and show investigative techniques used. He also stated that these notes recorded settlement negotiations with the nurse and that disclosure of such negotiations would discourage settlements. He concluded that settlements are particularly important in drug abuse cases because cooperation is needed to allow for needed drug treatment.

The trial court considered the affidavit of petitioner, as well as the fact (apparently admitted during the hearing in the trial court) that the names of informants were disclosed to the nurse, and concluded that no applicable privilege existed in Vermont. The court denied the motion to quash. The present petition for extraordinary relief followed.

Petitioner asserts that three privileges¹ give him the right to resist disclosure: (1) the investigatory files privilege; (2) the informant privilege as set forth in V.R.E. 509; and (3) the restriction on the admission of evidence of settlement negotiations as contained in V.R.E. 408.² We agree with the trial court that the latter two contentions can be addressed quickly. Assuming that V.R.E. 509 applies outside the criminal context, this privilege is waived if the identity of the informant is disclosed by the holder, here the Board, to a person “who would have cause to resent the communication” from the informant to the government agency. We can think of no person who would greater resent the communication of the nurse’s wrongdoing than the nurse. This privilege, if it existed, was waived.

The other asserted source of a privilege is actually a rule of relevancy. See V.R.E. 408. It does not create a privilege. At best, the rule creates an argument that the settlement negotiation information should not be disclosed because it is not relevant and is not “reasonably calculated to lead to the discovery of admissible evidence.” See V.R.C.P. 26(b)(1). Petitioner did not make that argument.

Petitioner’s strongest argument is the investigatory files privilege. The trial court concluded that no such privilege exists in Vermont. Petitioner recognizes we have never announced such a privilege, either by decision or in the Vermont Rules of Evidence, but urges that we follow the lead of other states in developing such a privilege as part of the common law. See Killington, Ltd. v. Lash, 153 Vt. 628, 635, 572 A.2d 1368, 1373 (1990) (recognizing qualified executive privilege); V.R.E. 501(a) (“This rule shall not be construed to prevent the development at common law of other privileges.”). He argues that if such a privilege is recognized, it must necessarily cover the information plaintiffs seek.

Before we address this argument, we must stress that we are operating under a very limited scope of review in evaluating this kind of extraordinary relief petition. We held recently in Ley v. Dall, 150 Vt. 383, 386, 553 A.2d 562, 564 (1988), that the intervention of this Court to prevent discovery in the trial court was warranted only on a showing of usurpation of judicial power or clear abuse of discretion. In State v. Forte, 154 Vt. 46, 48, 572 A.2d 941, 942 (1990), we stated that this standard is met if petitioner shows an arbitrary abuse of power. Thus, in this Court, petitioner must show more than that the trial court was wrong or gave the wrong reason for its action. When we refer to abuse of discretion, we are saying that the trial court decision must be wrong as a matter of law. See id. We will not intervene if there is any ground for the trial court action, even if it is not the ground used by the trial court.³

In applying this standard of review, it is also important to emphasize what is in issue. Petitioner does not complain about an inability to present his ease to the trial court. All facts relevant to the questions before the trial court were presented in petitioner’s affidavit and supporting material. No evidentiary hearing is needed here or in the trial court. Petitioner’s complaint is that the court failed to apply the facts to the law and quash the subpoena.⁴

We also stress the care with which we must approach any request to create a new privilege. The most important point of privilege doctrine was set forth by Chief Justice Burger in United States v. Nixon, 418 U.S. 683, 710 (1974):

Whatever their origins, these exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.

Because of their interference with truthseeking, privileges are strongly disfavored. See, e.g., Cronin v. Strayer, 392 Mass. 525, 533, 467 N.E.2d 143, 148 (1984); Dixon v. Rutgers, 110 N.J. 432, 446, 541 A.2d 1046, 1053 (1988). Most courts have created a testimonial privilege only when the conditions meet the four-part test for recognition set forth in Dean Wigmore’s treatise. See, e.g., American Civil Liberties Union v. Finch, 638 F.2d 1336, 1344 (5th Cir. 1981) (privilege for governmental records). The four requirements are:

(1) The communications must originate in a confidence that they will not be disclosed.

(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.

(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

8 Wigmore on Evidence § 2285, at 527 (McNaughton ed. 1961) (emphasis added). Only if all conditions are present should a privilege be recognized. See id.

We agree with petitioner that information in official investigatory files can meet the four requirements set forth by Wigmore to warrant an evidentiary privilege in some circumstances. We wall assume for purposes of analysis that petitioner is the proper person to claim such a privilege⁵ and that the privilege can extend to licensing boards.⁶ Neither of these assumptions are free from doubt, and both warrant further analysis in the appropriate case. We believe, however, that petitioner has failed to make a sufficient showing to apply the privilege in this case.

Case law and statutes in other states and in the federal system have defined a number of interrelated privileges covering governmental information. Petitioner relies upon the “investigatory files privilege.” The privilege was defined, as part of an official information privilege, by proposed Fed. R. Evid. 509(a)(2) as covering governmental information “the disclosure of which is shown to be contrary to the public interest” if it consists of “investigatory files compiled for law enforcement purposes and not otherwise available.” This statement is somewhat vague. The coverage of the privilege comes down to a kind of judicial judgment call — whether the disclosure is contrary to the public interest.

The determination of the “public interest” has turned on a number of judicially created factors. The leading ease setting forth the relevant factors is Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. 1973), where Judge Becker put forth the following list in a civil rights action based on police brutality:

In the context of discovery of police investigation files in a civil rights case, however, at least the following considerations should be examined: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which government self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any . . . disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff’s suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiff’s case.

While the precise description of the factors will vary depending on the nature of the case involved, the Frankenhauser list represents the most complete and widely accepted itemization of the relevant considerations.

Although petitioner has argued that the application of the factors should have required the trial court to grant the motion to quash, he recognizes that the court may be able to evaluate the competing considerations only after an in camera inspection of the file. We recognize that the showing that petitioner must make to get to an in camera inspection is less than the showing he must make to prevail on his motion to quash. It is important, however, to insist that petitioner meet a reasonable threshold before the court must make the inspection.

The routine use of an in camera inspection is not a satisfactory resolution of the balancing of interests the privilege requires. “There is ... reason to be concerned about the possible due process implications of routine use of in camera proceedings.” United States v. Zolin, 491 U.S. 554, 571 (1989) (attorney-client privilege). In camera proceedings are extraordinary events in the constitutional framework because they deprive the parties against whom they are directed of the basic requirement of due process — the opportunity to be heard. In re Taylor, 567 F.2d 1183, 1187-88 (2d Cir. 1977). Thus, they must be justified and allowed by a compelling state interest. Id. at 1188. Further, they place a special burden on the trial court because they require the court to make important and sensitive decisions “without open adversarial guidance by the parties.” Zolin, 491 U.S. at 571. Indeed, the burden is often greater because the side holding the documents gives knowledgeable, adversarial advice while the other side cannot articulate an informed position.

It is important to recognize that the situation here is different from that in the recent case of Killington v. Lash, where the Governor was asserting an absolute privilege and the court conditioned recognition of the privilege on inspection of the material in the face of a showing of private need for the disclosure of the information. In Killington, the scales started in favor of nondisclosure, and the individual seeking the information had to demonstrate need to require the court to balance. 153 Vt. at 639, 572 A.2d at 1375. In this case, the scales must start on the side of disclosure, and the government must make a showing to require the court to balance. See Assured Investors Life Ins. Co. v. National Union Assocs., 362 So. 2d 228, 233 (Ala. 1978). This case and Killington should be the same, however, in the sense that the party who has the initial burden cannot require the court to make an in camera examination without meeting that initial burden. Thus, an order for an in camera inspection was reversed in Killington because of the failure of the petitioner to show need for the information. Killington, 153 Vt. at 639, 572 A.2d at 1375. For the same reason, no order of in camera inspection can be imposed here.

The case law on the investigatory files privilege is clear that a minimum showing is required before the court must balance the interests, and the precedents are relatively consistent on what must be in that showing. See, e.g., Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1342 (D.C. Cir. 1984). It is best described in the recent decision of Judge Weinstein in King v. Conde, 121 F.R.D. 180, 189 (E.D.N.Y. 1988), as follows:

The party seeking to invoke the privilege bears the burden of justifying its application. The government must specify “which documents or class of documents are privileged and for what reasons.” This threshold showing must explain the reasons for nondisclosure with particularity, so that the court can make an intelligent and informed choice as to each requested piece of information. “Unless the government, through competent declarations, shows the court what interests [of law enforcement or privacy] would be harmed, how disclosure under a protective order would cause the harm, and how much harm there would be, the court cannot conduct a meaningful balancing analysis.” If the police make no such showing, the court has “no choice but to order disclosure.”

The privilege will be deemed asserted when the objecting party timely invokes the privilege as to each discovery result thought to invade the privilege ... [and files] “a declaration or affidavit... from a responsible official within the agency . . . .” This statement must be based on personal review of the documents by an official in the police agency (not the defendant’s attorney) and must explain (not merely state conclusorily) how the materials at issue have been generated or collected; how they have been kept confidential; what specific interests (e.g. of the police officers, of law enforcement, or of public concern) would be injured by disclosure to plaintiff, to plaintiff’s attorney, and to the public; and the projected severity of each such injury. This procedure should discourage applications for non-revelation in all but deserving cases.

(citations omitted; emphasis in original). Petitioner’s case for withholding the information is based on exactly the sort of conclusory claims that Judge Weinstein and others have found inadequate. A comparison of the claims made with the Frankenhauser factors discloses how inadequate the showing was in this case.

Before looking at the Frankenhauser factors, however, we should emphasize that it is entirely appropriate for this Court to do so in an extraordinary relief proceeding. Petitioner submitted to the trial court and to this Court all the information relevant to its claim of privilege, and there are no facts in issue. As we emphasized earlier, petitioner is not entitled to extraordinary relief if there is any ground for the trial court action. Thus, we will deny relief if the trial court could have found that petitioner failed to make a threshold showing in this case, even though the trial court never evaluated petitioner’s showing on the merits.

Petitioner relies primarily on the first two Frankenhauser factors: the impact disclosure will have on the ability of the government to obtain information and the impact on persons who have given information of having their identities disclosed. He makes a number of assertions: (1) individuals interviewed are routinely told the investigation is confidential and the reports in the file disclose the identities of individuals who spoke with the investigators; (2) nurses and patients would be deterred from complaining if they knew that the information might be used by private litigants; and (3) investigative techniques will be disclosed, thereby undercutting the effectiveness of nursing regulation.

All of the petitioner’s claims are conclusory and may or may not apply to this particular case. They do not meet petitioner’s burden. The case law shows a great reluctance for courts to act on these kinds of broad generalizations that disclosure will impair administrative processes. The court in Frankenhauser stressed that “rare instances of disclosure” due to civil suits will not deter citizens from revealing information to law enforcement officials. The court noted that “the average citizen is ... willing to cooperate with law enforcement officials.” Frankenhauser, 59 F.R.D. at 344.

Particularly misdirected is the claim that nurses will not speak candidly⁷ if they know that disclosure to litigants is possible. We find no specific support for the generalization that nurses, whose profession is dedicated to patient care, will conceal or distort information to prevent injured parties from seeking redress from their employers. See King v. Conde, 121 F.R.D. at 193; see also In re Franklin Nat’l Bank Securities Litigation, 478 F. Supp. 577, 586 (E.D.N.Y. 1979) (government’s argument that disclosure of confidential bank examination report will chill the relationship between bank officials and examiners “exaggerates the danger”). If we are to make a generalization, the more likely result of disclosure is that candor will be increased, not chilled. See Mercy v. County of Suffolk, 93 F.R.D. 520, 522 (E.D.N.Y. 1982). As the court emphasized in Mercy, knowledge that others may view a witness’s statement “may serve to insure that these investigations are carried out in an even-handed fashion, that the statements are carefully and accurately taken, and that the true facts come to light, whether they reflect favorably or unfavorably on the [defendants].” Id.

Nor does petitioner have any serious interest in protecting the name of informants. The names of these persons have been disclosed to the nurse who is the defendant in the underlying lawsuit; it is difficult to see how additional disclosure to plaintiffs will have a further impact on their interests. There is no allegation that any of these individuals were promised anonymity — the disclosure to the nurse demonstrates that such a promise is not present or it has already been broken. We are not involved with criminal prosecution of a serious crime where witnesses may have valid fears for their personal security. If necessary, the court can impose a “gag order” limiting public disclosure of the names of the informants by plaintiffs or plaintiffs’ counsel.

Nor do we find weighty the broad and general claim that investigatory techniques may be disclosed. While the privilege has been held to be broad enough to protect against the disclosure of “newly developed investigative techniques,” S. Stone & R. Liebman, Testimonial Privileges § 9.22, at 534 (1983), there is no specific claim here that disclosure of Board investigatory methods will be compromised so that nurses engaging in disciplinary violations will use the information to prevent disclosure of their actions or to prevent investigation. See id. (privilege limited to circumstances where disclosure would compromise “the usefulness of the technique in future investigations”).

The third and seventh factors, the need for governmental self-evaluation and the presence of intradepartmental disciplinary proceedings, are apparently not relevant in this case. Nor can we evaluate the fourth factor, as petitioner has failed to provide us with specific information about the documents to determine the extent to which they contain evaluations of the evidence gathered in the investigation.

The fifth and sixth factors deal with the interrelationship of the litigation to the investigation and the current status of the investigation. The extent to which the litigation can interfere with an investigation is more limited in the context of a disciplinary proceeding than in the context of a criminal investigation. There is no indication that any of the parties in the underlying litigation are present or future defendants in a criminal proceeding. We are not concerned either that discovery in the civil litigation will provide a defendant with information not otherwise obtainable under criminal discovery rules; or that discovery in the civil proceeding will interfere with the rights of a defendant in a criminal proceeding. Cf. State v. Begins, 147 Vt. 295, 298, 514 A.2d 719, 722 (1986) (State’s opportunity to coerce self-incriminating testimony by scheduling probation revocation hearing prior to criminal trial poses danger of abuse to judicial decision-making process).

It is particularly significant that the Board’s disciplinary proceeding has concluded. The Vermont Board of Nursing accepted the stipulated settlement in June of 1989, well before the disclosure order. A major, if not dominant, purpose of the investigative files privilege is to prevent discovery from interfering with an ongoing law enforcement investigation or proceeding. Thus, a summary of the case law concluded: “When an investigation has been completed, the consensus is that a litigant should be allowed access to law enforcement files.” Note, Discovery of Government Documents and the Official Information Privilege, 76 Colum. L. Rev. 142, 158-59 (1976). Including this factor in an extensive list of relevant factors means that it is not alone determinative. It is, however, entitled to very significant weight in the ultimate balancing process. See United States v. Leggett & Platt, Inc., 542 F.2d 655, 659 (6th Cir. 1976), cert. denied, 430 U.S. 945 (1977); Mehau v. Gannett Pacific Corp., 66 Haw. 133, 156, 658 P.2d 312, 327 (1983); Laws v. Thompson, 78 Md. App. 665, 691, 554 A.2d 1264, 1277 (1989) (investigative files privilege does not apply when “specific investigation or governmental undertaking ends”).

The eighth, ninth and tenth factors deal with the nature of plaintiffs’ underlying case, the importance of the discovery sought to the case and the availability of the information from other sources. Petitioner has provided us very little information from, which to evaluate these factors. The underlying lawsuit is a very serious personal injury action involving allegations of damage to a hospital patient from the misuse of drugs by a nurse. The stipulation of settlement between the Nursing Board and the nurse includes admissions by the nurse that she violated disciplinary rules by being “habitually intemperate in the use of habit forming drugs” and by “diverting drugs for her personal use while employed at... [defendant] hospital.” While the record does not disclose this specifically, there is every reason to believe that the investigation covered the alleged incident that gave rise to the underlying lawsuit.

The trial court concluded that “[b]oth the need for, and the relevancy of the material sought has been amply demonstrated by the plaintiffs.” It also concluded that the material may not be readily available from other sources. Petitioner has not questioned the trial court’s conclusions or plaintiffs’ need for the material, asserting instead a blanket and absolute right to withhold it.

The need for discovery materials of this kind, based in part on the unavailability of alternatives, is particularly strong where plaintiffs have sued an employer of the individual who committed the alleged tortious acts. Plaintiffs will probably have to show that the employer was aware of the nurse’s misconduct, or can be charged with that knowledge, and failed to take action. Thus, they must determine the extent of both the misconduct and the knowledge of the misconduct, the type of information that is likely to arise in the Board’s investigation. See Crawford v. Dominic, 469 F. Supp. 260, 263 (E.D. Pa. 1979) (importance of the information to plaintiffs’ case is the weightiest factor); Martinelli v. District Court, 199 Colo. 163, 173, 612 P.2d 1083, 1090 (1980) (same).

Finally on this point, it is significant that petitioner has failed in any way to accommodate the legitimate needs of the plaintiffs. See United States v. O’Neill, 619 F.2d 222, 227 (3d Cir. 1980) (indiscriminate claim of privilege can be “sufficient reason to deny it”). For example, petitioner refuses to release even the names of complainants and persons who gave information to the Board to enable plaintiffs to conduct their own investigation even though those names went to the nurse. With the lack of even minimal cooperation from petitioner, the paths available to gather the necessary information are simply too tortuous to be reasonable alternatives to the disclosure of petitioner’s records.

When we engage in balancing of the relevant factors in light of petitioner’s duty to support his privilege claim with detailed and not conclusory reasons why disclosure is not in the public interest, related specifically to the documents involved and the information contained therein, there is virtually no basis for keeping the records from the plaintiffs. Not only do most factors point toward disclosure, petitioner has failed to make any showing why the factors that might support confidentiality have any weight in this case.

Although the trial court was in error in concluding that no investigatory files privilege exists in Vermont, it could have denied relief on the ground that petitioner has failed to make a sufficient showing to apply the privilege in this case. Since petitioner has failed to show that there is no ground for the trial court’s action, extraordinary relief is inappropriate.

Petition for extraordinary relief dismissed.

1 Petitioner has not claimed that the patient’s privilege applies. See V.R.E. 503.

2 Petitioner has noted that the Vermont Access to Public Records Act, 1 V.S.A. § 317(b)(5), has an exception from public disclosure for “disciplinary investigation” records of a “professional licensing agency.” This exception deals with disclosure to the public generally, not disclosure in response to discovery in litigation. It does not create a privilege. See Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1344 (D.C. Cir. 1984); Toran, Information Disclosure in Civil Actions: The Freedom of Information Act and the Federal Discovery Rules, 49 Geo. Wash. L. Rev. 843, 849 (1981).

3 If there is a single difference between our view of this case and that espoused by the dissent, it lies in the nature of our role in extraordinary review. Under Ley v. Dall and State v. Forte, we are not applying our normal abuse of discretion standard. Petitioner is not entitled to relief simply by showing that the trial court failed to recognize the privilege, and this is not an appeal of the trial court order. Using the terminology of the dissent, there is here no “case” to remand; we either grant extraordinary relief or deny it.

4 We must rely upon petitioner’s complaint and accompanying material in acting upon the complaint. If petitioner concludes, based on this opinion, that a further showing would result in favorable action in the trial court in whole or in part, he is free to renew his motion to quash. We are confident that the trial court will act in accordance with this opinion.

5 The privilege sought by petitioner must be invoked by the head of the agency that has control over the matter. See, e.g., United States v. O’Neill, 619 F.2d 222, 226 (3d Cir. 1980) (relying on similar rule for privilege for state and military secrets developed in United States v. Reynolds, 345 U.S. 1, 7-8 (1953)); Association for Women in Science v. Califano, 566 F.2d 339, 347-48 (D.C. Cir. 1977); AgriVest Partnership v. Central Iowa Production Credit Ass’n, 373 N.W.2d 479, 486 (Iowa 1985). The purpose of the requirement, in part, is to ensure that the agency head has considered the documents involved and developed “‘precise and certain reasons for preserving’ the confidentiality of the communications.” O’Neill, 619 F.2d at 226 (quoting Smith v. Federal Trade Comm’n, 403 F. Supp. 1000, 1016 (D. Del. 1975)). It is, of course, the privilege of the agency if it chooses to invoke it.

The only interest of the Secretary of State in the records involved in this ease is that he is the custodian of the records of licensing boards as an “administrative service” to these boards that includes “maintenance of current files and furnishing secretarial service.” 3 V.S.A. § 114(a). In fact, the Vermont State Board of Nursing has a chairperson, 26 V.S.A. § 1574(1), and an executive officer. See 26 V.S.A. § 1575(a). The executive officer has the power to compel the attendance of witnesses at Board hearings by subpoena. See 26 V.S.A. § 1582(b)(4). We have no idea what the views of the Board or its executive officer are with respect to the disclosure of the records in controversy. The Board may believe that all or part of the records involved in this case are properly public or that disclosure to an affected litigant is consistent with the purpose of the Board to “safeguard the life and health of the people of this state.” 26 V.S.A. § 1571. In fact, the affidavit of the Secretary of State in this ease indicates that the State Nursing Board proceeding was triggered by an “oral complaint” to the Board. 26 V.S.A. § 1582(b)(8) makes a record of a complaint “part of the permanent public record” of proceedings of the Board.

6 On this issue, petitioner relies primarily on McClain v. College Hosp., 99 N.J. 346, 363, 492 A.2d 991, 1000 (1985), a licensing board case. McClain is distinguishable because it is based on the applicability of right-to-know or freedom-of-information laws, a rationale not applicable here. See note 2, supra. It also involves interagency opinions or memoranda, a different privilege issue than that present here. Further, we note that New Jersey has adopted an “official information” privilege as a rule of evidence. See N.J.R.E. 32 (codified as 2A N.J.S.A. § 84A-27).

7 As noted earlier, the statements of the one nurse who has reason not to be candid, the defendant in the underlying ease, were protected from disclosure by the trial court.