February 1, 2011
THREAT REPORTING – LAWS ON CONFIDENTIALITY AND LIABILITY
By: James Orlando, Associate Analyst
You asked about laws regarding the confidentiality of people reporting threats and liability for falsely reporting someone for making violent threats. The Office of Legislative Research is not authorized to provide legal opinions and this report should not be considered one.
Under certain circumstances, a report of a threat can remain confidential under the state Freedom of Information Act. The act allows law enforcement agencies to keep records of criminal investigations or detection confidential if disclosure would be contrary to the public interest and it would reveal specified information, including the identity of (1) informants not otherwise known or (2) witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known (CGS § 1-210 (b)(3)).
The federal Freedom of Information Act allows federal agencies to keep records or information compiled for law enforcement purposes confidential to the extent the production of the records or information could reasonably be expected to (1) disclose the identity of a confidential source or (2) endanger the life or physical safety of any individual (5 USC § 552(b)(7)).
In addition to legal protections for the identity of informants or witnesses, police departments routinely accept anonymous tips about crimes or threats. We were unable to find any laws addressing anonymous tips about potential threats. The Connecticut State Police have established a program allowing people to send anonymous text messages for tips or information to help solve crimes (but not for emergencies or crime reporting). Information about the program is available here: http://www.ct.gov/dps/cwp/view.asp?a=2152&q=424756.
Connecticut law does not specifically address the confidentiality of 9-1-1 call recordings. Thus, the recordings would be subject to disclosure under the Freedom of Information Act unless they fall under one of the exemptions, such as the exemption related to criminal investigations described above. However, PA 09-86 makes confidential and exempt from disclosure under the Freedom of Information Act subscriber information about 9-1-1 callers, including the name, address, and telephone number contained in the enhanced 9-1-1 database of a telephone used to place a 9-1-1 call or used in connection with an emergency notification system (a service that notifies the public of emergencies). Such subscriber information can only be used for (1) responding to emergency calls, (2) investigating false or intentionally misleading reports of incidents requiring emergency service, or (3) enabling emergency notification systems in case of life-threatening emergencies.
According to a recent report by the National Conference of State Legislatures (NCSL), six states (Alabama, Mississippi, Missouri, Pennsylvania, Rhode Island, and Wyoming) keep 9-1-1 call recordings confidential and four others (Georgia, Maine, Minnesota, and South Dakota) place restrictions on the release of 9-1-1 calls or call information. The NCSL report contains excerpts and links to these laws. Attached is a copy of the report which is also available at the following link: http://www.ncsl.org/default.aspx?tabid=20225.
We found no Connecticut statutes addressing general liability issues or defamation liability regarding threat reporting. However, the Connecticut Supreme Court recently held that statements made to police during an investigation are only entitled to qualified immunity (Gallo v. Barile, 284 Conn. 459 (2007)). Therefore, someone who reports another's alleged threats could be liable for defamation if the person reporting the threat did so knowing the report was false or with reckless disregard for its truth or falsity.
Please note that this report does not address liability issues regarding certain professionals' duty to disclose confidential information when they believe a serious risk exists to a third party. OLR Report 2010-R-0024 summarizes Connecticut law regarding the duty of mental health professionals to warn of their patients' potentially violent conduct.
We found laws in three states addressing defamation or other liability issues related to threat reporting. These laws involve school-related threats.
QUALIFIED IMMUNITY OF STATEMENTS MADE TO POLICE
In Gallo v. Barile, 284 Conn. 459 (2007), the plaintiff brought a lawsuit for defamation, among other claims, for allegedly false and malicious statements the defendants made to a state trooper about the plaintiff's conduct. The plaintiff, an employee of the Department of Social Services, had a verbal exchange with his supervisor. The supervisor described the plaintiff's conduct as aggressive and indicated that it appeared the plaintiff would become violent. Two other employees witnessed the exchange and one agreed with the supervisor's assessment. The supervisor reported the encounter to other department personnel, one of whom eventually contacted the state police.
A state trooper arrived to investigate. After various witnesses and others recounted their versions of the event, the state trooper arrested the plaintiff for 2nd degree breach of the peace.
The plaintiff was acquitted after a jury trial. He then brought suit against his supervisor and two others for defamation (among other claims) alleging that the defendants wrongfully accused him of threatening and harassing behavior. He claimed that the defendants' statements to the police and their trial testimony was false and malicious and, as a result, his reputation and community standing suffered, causing him great mental and physical distress.
The defendants moved for summary judgment, claiming that their statements to the state trooper and trial testimony were absolutely privileged, thus shielding them from liability. The trial court granted the defendants' motion. The state Supreme Court reversed and sent the case back to the trial court. The Supreme Court concluded that the defendants' statements to the police were subject to only a qualified privilege, not the absolute privilege afforded to statements made in the
course of judicial or quasi-judicial proceedings. The court cited opinions from several other states, noting that “[o]ur conclusion comports with the rule adopted by a majority of the states that have addressed this issue,” including Florida, Maryland, Nevada, and Oregon (Gallo, 284 Conn. at 472).
The court rejected the distinction made by the trial court between a “complaining” witness (one whose report triggered the investigation) and anyone else providing information about possible criminal activity to the police, including people sought out by the police. The court found that both types of statements in connection with a police investigation are entitled only to qualified immunity (Gallo, 284 Conn. at 469 n. 12).
As explained by the Supreme Court in an earlier case and reiterated in Gallo, “[a]lthough a qualified privilege insulates many defamatory statements and shields many defendants from liability, the privilege does not protect a defendant who makes statements that are both defamatory and malicious” (284 Conn. at 464 n.6) (quoting Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 545 (1999)). As the court has further explained:
[T]he malice required to overcome a qualified privilege in defamation cases is malice in fact or actual malice . . . which requires that the statement, when made, be made with actual knowledge that it was false or with reckless disregard of whether it was false. . . . the evidence must demonstrate a purposeful avoidance of the truth. . . . Malice in fact is sufficiently shown by proof that the [statement was] made with improper and unjustifiable motives (Gallo, 284 Conn. at 464 n.6) (quoting Hopkins v. O'Connor, 282 Conn. 821, 845-47 (2007)).
The court noted that “[i]n view of the potentially disastrous consequences that may befall the victim of a false accusation of criminal wrongdoing, we are unwilling to afford absolute immunity to such statements. We also are persuaded that qualified immunity affords sufficient protection for those who cooperate with the police” (Gallo, 284 Conn. at 472).
SELECTED LAWS ON THREAT REPORTING
Following are summaries of selected laws from other states on confidentiality and liability issues regarding threat reporting.
California: Limited Defamation Liability for Reporting Threats to School Officials
Under California law, reports of threats to commit violence or potential violence on school grounds involving firearms or other deadly or dangerous weapons are considered communications on a matter of public concern. They are only subject to defamation liability if clear and convincing evidence shows that the report was made with knowledge of its falsity or with reckless disregard for its truth or falsity. This applies to communications (1) by anyone to a school principal or (2) by a student attending the school to a teacher, school counselor, or school nurse, and any report of that communication to the principal. These provisions apply in both public and private schools (Cal. Civ. Code §§ 48.8, 3294).
Georgia: Immunity for Civil Liability for Reporting School Bullying
Under Georgia law, anyone who reports an incident of school bullying in good faith is immune from civil liability for any damages caused by reporting the bullying (Ga. SB 250, Act 471 (2010)).
Nevada: Immunity for Reporting Threats Against Students or School Officials
Nevada law provides immunity from civil liability for reporting threats against school employees, officials, or pupils. The person reporting the threat must know or have reasonable cause to believe that someone else has made such a threat, and the report must be in good faith. The immunity applies in both public and private schools. The immunity does not extend to someone (1) acting in a professional or occupational capacity who is required by law to report (a) the abuse, neglect,
exploitation, or isolation of an older or vulnerable person or (b) the abuse or neglect of a child or (2) required by law to report violent or sexual offenses against a child. The immunity also does not extend to other acts or omissions by the person as part of, in connection with, or as a principal, accessory, or conspirator to the violence (Nev. Rev. Stat. Ann. §§ 388.880, 394.177).