2023 UT 12
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
DAVID CHADWICK,
Appellant. 1
No. 20190818
Heard February 10, 2023
Filed June 8, 2023
On Motion for Access to Court Records Associated with Case
Fourth District, Provo
The Honorable James R. Taylor
No. 171400984
Attorneys:
William M. Hains, Asst. Solic. Gen., Sean D. Reyes, Att’y Gen.,
Salt Lake City, for appellee
Douglas J. Thompson, Jennifer Foresta, Provo, for appellant
Paul Cassell, Heidi Nestel, Crystal C. Powell, Salt Lake City, for
limited-purpose party F.L.
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE PEARCE, JUSTICE PETERSEN, JUSTICE HAGEN,
and JUDGE CORNISH joined.
Having recused herself, JUSTICE POHLMAN did not participate herein;
DISTRICT COURT JUDGE RITA M. CORNISH sat.
CHIEF JUSTICE DURRANT, opinion of the Court:
_____________________________________________________________
1 Consistent with our decision in F.L. v. Court of Appeals, 2022 UT
32,
515 P.3d 421, F.L. participates in this matter as a limited-purpose
party.
STATE v. CHADWICK
Opinion of the Court
Introduction
¶1 David Chadwick was charged with four counts of sexual
abuse of a child, F.L. In defending his case, Mr. Chadwick requested
that the trial court review the records of several entities that had
provided mental health services to F.L. to determine whether the
records contained information relevant to the charges against him.
The court issued an order authorizing in camera review of the
records, then, pursuant to that order, provided Mr. Chadwick with
relevant snippets from the records and sealed the undisclosed
records.
¶2 Mr. Chadwick was convicted on one of the four counts, and
he appealed. Upon receiving the case record, the court of appeals
unsealed F.L.’s therapy records, at which time Mr. Chadwick used
those previously sealed records to prepare his appellate brief.
¶3 When F.L. learned that her records had been unsealed, she
obtained legal counsel and asked the court of appeals to re-seal her
records. The court did so. F.L. also asked the court of appeals for
permission to participate in Mr. Chadwick’s appeal as a limited-purpose party. That issue came to us, and we reviewed and granted
F.L.’s request.
¶4 The court of appeals certified the case to us, and we issued a
briefing schedule. Rather than filing a brief on the merits of his
appeal, Mr. Chadwick filed the motion now at issue. Citing rule 4-
202.04 of the Utah Code of Judicial Administration, 2 he seeks access
to F.L.’s therapy records that the trial court sealed after its in camera
review. He claims that without access to the requested records, his
counsel is prevented from preparing an adequate appellate brief or
zealously advocating on his behalf.
¶5 Because the balance of interests weighs in favor of keeping
F.L.’s therapy records sealed during appellate review, and no
reasonable alternative to closure adequately protects those interests,
we deny Mr. Chadwick’s request.
Background
¶6 Mr. Chadwick was charged with four counts of sexual abuse
of a child, F.L. Before his trial commenced, Mr. Chadwick asked the
_____________________________________________________________
2 Rule 4-202.04 was recently amended, effective May 1, 2023. In
this opinion, we reference the 2016 version of the rule, which was in
effect at the time of oral argument in this matter.
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trial court to conduct an in camera review of F.L.’s therapy and
counseling records and release any portions containing material or
exculpatory information. He first sought the trial court’s review and
release of the records by motion. In that motion, Mr. Chadwick
claimed that the records “contain references to the incidents alleged
to have occurred” in his case. He requested that the court (1) conduct
an in camera review of F.L.’s therapy and counseling records;
(2) release the portions of the records that are material to his defense;
(3) ensure a proper record of its in camera review, with an index of
documents; and (4) seal and retain copies of all in camera
information as part of the court record. He also described our
caselaw recognizing a defendant’s right to receive additional records
as they become relevant during trial.
¶7 But before the State responded to Mr. Chadwick’s motion, and
before the court ruled on it, the State indicated it would not oppose
the court’s in camera review of the records. So rather than assessing
Mr. Chadwick’s motion, the court asked the parties to prepare a
proposed order directing that the records be provided for its review.
¶8 Mr. Chadwick prepared the requested proposed order, which
the State signed off on. Under the proposed order, Mr. Chadwick
was authorized to issue subpoenas to seven entities—Motivational
Empowerment Counseling, Wasatch Mental Health, Center for
Change, Sandy Counseling Centers, Provo Canyon Behavioral
Health, 3 Meadow Elementary School, and Snow Springs Elementary
School—requiring them to deliver all of F.L.’s therapy and
counseling records under their control to the court. The proposed
order provided that the court was to conduct an in camera review of
the records and “disclose only those portions” that contained
information falling within three categories: (1) “a factual description
of alleged abuse by Mr. Chadwick and circumstances surrounding
those events”; (2) “any report of those events by the counselor to law
enforcement”; or (3) “any methods used to refresh or enhance the
memory of [F.L.] regarding those events.” The proposed order also
restricted the disclosure and dissemination of the records, and it
stated that the “[r]ecords received for review . . . which are not
_____________________________________________________________
3The trial court and the parties have referred to Provo Canyon
Behavioral Health by varying names, including Provo Canyon
Hospital and Provo Behavioral Health. For consistency, we use
Provo Canyon Behavioral Health throughout this opinion.
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STATE v. CHADWICK
Opinion of the Court
disseminated shall be retained as part of the Court record but shall
be sealed documents.”
¶9 The court signed the order as prepared and agreed upon by
the parties, and Mr. Chadwick sent subpoenas to the listed entities.
After reviewing the records it received from Motivational
Empowerment Counseling, Wasatch Mental Health, Center for
Change, Sandy Counseling Centers, and Provo Canyon Behavioral
Health, 4 the court issued written rulings summarizing its findings
for each set of records. It found that the records from three of the
entities, Center for Change, Sandy Counseling Centers, and Provo
Canyon Behavioral Health, contained no information falling within
the parameters of the order.
¶10 The court further found that the records from two of the
entities, Motivational Empowerment and Wasatch Mental Health,
did contain information falling within the parameters of the order.
With respect to the records reviewed from Motivational
Empowerment, the court identified a “brief reference” to Mr.
Chadwick. It quoted that reference in its written ruling and stated
that the records did not contain any other information falling within
the parameters of the order. With respect to the records reviewed
from Wasatch Mental Health, the court identified seven clinical notes
that fit within the three relevant categories outlined in the order
authorizing the in camera review. The court’s written ruling quoted
those clinical notes and stated that the court “did not observe any
other notes, description[,] or information in the records” falling
within the parameters of the order.
¶11 The court never provided Mr. Chadwick with the records
themselves, redacted or otherwise. So besides the single quote from
the Motivational Empowerment records and the excerpted seven
clinical notes from the Wasatch Mental Health records, which were
included as part of the court’s written rulings following its in camera
review, Mr. Chadwick was not privy to the information contained in
F.L.’s therapy records. As set out in the court’s order, after the
court’s in camera review, the portions of the records that were not
provided to the parties became sealed.
_____________________________________________________________
4 We are not asked to address issues relating to the subpoenas
sent to Meadow Elementary School and Snow Springs Elementary
School.
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¶12 F.L. testified at Mr. Chadwick’s trial. During crossexamination, Mr. Chadwick’s counsel asked F.L. about her
experience with therapy. Counsel specifically asked F.L. about her
experience at Wasatch Mental Health, Center for Change, Sandy
Counseling Centers, and Provo Canyon Behavioral Health and
whether she told her therapists that she did not remember details
about sexual abuse occurring in her house. F.L. testified that she told
her therapists “parts of the details” about the abuse but that “when
they pushed, [she] wouldn’t talk.” When Mr. Chadwick’s counsel
asked follow-up questions about what F.L. had discussed with her
therapists, she said she could not answer unless she knew the name
of the therapist to whom counsel was referring.
¶13 Shortly after questioning F.L., Mr. Chadwick’s counsel
complained to the court that it was “more aware” of the information
in F.L.’s therapy records than he was because “[o]nly portions were
released to Counsel.” Counsel also noted to the court that he
believed it had “a continuing obligation to release portions [of the
records] that become relevant as the trial progresses.” The court
responded that there was “just no way that [it] could comply with
that” obligation because when it reviewed the records, it “was
looking for the specific areas of question that were included in the
order.” The court further stated that it was “not in a position to have
digested the full import of th[e] records.”
¶14 Mr. Chadwick was convicted of one count of sexual abuse of
a child, and he appealed. F.L.’s therapy records were not initially
included in the court record on appeal, so Mr. Chadwick moved for
the court of appeals to correct the omission. In the motion, to which
the State stipulated, the parties asked the court to ensure that the
records were “in a sealed envelope or container; and that the
envelope or container be clearly labeled ‘Sealed Court Records:
Witness Mental Health Records.’” The parties also asked for
clarification about whether F.L.’s therapy records were “‘sealed
court records’ accessible only by court order,” and Mr. Chadwick
indicated that he intended to seek an order authorizing his counsel
to access the records on appeal.
¶15 The court of appeals granted Mr. Chadwick’s motion to
correct the appellate record. Shortly thereafter, on its own motion,
the court unsealed F.L.’s therapy records, ordering that they be
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STATE v. CHADWICK
Opinion of the Court
classified as “private,” not “sealed,” for the purposes of Mr.
Chadwick’s appeal. 5
¶16 Upon the court of appeals’ unsealing of the records, Mr.
Chadwick’s counsel reviewed all the records reviewed in camera by
the trial court and filed an opening appellate brief, which discussed
details from the previously sealed records. The State then moved the
court of appeals to re-seal F.L.’s therapy records and to strike all
references to the records from Mr. Chadwick’s brief. The court
denied those motions but ordered that the record and the parties’
briefs be designated as “private” for purposes of appeal.
¶17 F.L. then obtained legal counsel and moved for enforcement
of her rights as a crime victim. She claimed in her motion that by
releasing her confidential records to Mr. Chadwick, the court of
appeals had violated her state constitutional rights under Utah’s
Victims’ Rights Amendment (VRA). In addition, she argued that she
was entitled to have the court of appeals re-seal her therapy records
and direct that all references to the records be stricken from Mr.
Chadwick’s brief.
¶18 In response to F.L.’s motion, the court of appeals ordered
that F.L.’s records be re-sealed and that Mr. Chadwick file a revised
brief omitting reference to the sealed records. The court later ordered
Mr. Chadwick to return all of F.L.’s therapy records that were in his
possession.
¶19 As the court of appeals had directed, Mr. Chadwick filed a
revised brief, which omitted any reference to F.L.’s sealed therapy
records. He argued that his rights to appeal, to due process, and to
fundamental fairness were violated by his inability to access the
records. He requested that the court either (1) designate the records
as private—thus permitting Mr. Chadwick’s access to them—or
_____________________________________________________________
5 The distinction between “private” court records and “sealed”
court records is consequential because while, generally, “no one may
access a sealed court record except by order of the court,” a private
court record is accessible by various parties, including “a party” or
an “attorney for a party . . . to litigation in which the record is filed.”
UTAH R. JUD. ADMIN. 4-202.03(2), (3)(C). In other words, Mr.
Chadwick and his counsel are entitled to access private court
records, but, absent a court order, they are prohibited from accessing
sealed court records.
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(2) examine the records itself, reviewing the trial court’s materiality
determination de novo.
¶20 F.L. then moved to intervene as a limited-purpose party,
requesting that she be permitted to file briefs on issues relating to
her confidential records. She maintained that her rights would be
violated if her confidential records were disclosed. The court of
appeals construed F.L.’s motion for intervention as a motion for
leave to file an amicus curiae brief and granted the motion. In
response, F.L. sought relief from this court. She requested that we
review the court of appeals’ denial of her motion to intervene as a
limited-purpose party. We did. 6 We reversed the court of appeals’
decision and remanded for F.L. to participate in Mr. Chadwick’s
appeal as a limited-purpose party. 7
¶21 Upon remand to the court of appeals, that court certified Mr.
Chadwick’s appeal to this court for original review and
determination because it concluded that the appeal “presents several
important and novel questions regarding the scope of appellate
review of the district court’s in camera decision to withhold or
disclose a victim’s confidential therapy records, as well as
interpreting provisions of the Utah Victims’ Rights Amendment.”
After the case was certified to us, we issued an order indicating that
Mr. Chadwick would be permitted to file a replacement brief and
specifying the briefing schedule. Instead of filing a brief on the
broader merits of his appeal, Mr. Chadwick filed the motion now
under review.
Standard of Review
¶22 Mr. Chadwick invokes rule 4-202.04 of the Utah Code of
Judicial Administration in requesting access to F.L.’s sealed therapy
records for purposes of preparing an appellate brief. This is an issue
for which there is no lower court ruling to review, so we address the
issues raised in Mr. Chadwick’s motion as a matter of law. 8
_____________________________________________________________
6 See F.L. v. Court of Appeals, 2022 UT 32, ¶¶ 4–5,
515 P.3d 421.
7 Id. ¶ 43.
8 Cf. State v. Clark,
2004 UT 25, ¶ 6,
89 P.3d 162 (“An ineffective
assistance of counsel claim raised for the first time on appeal
presents a question of law.”).
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STATE v. CHADWICK
Opinion of the Court
Analysis
¶23 Rule 4-202.04 of the Utah Code of Judicial Administration
“establish[es] the process for accessing a court record associated with
a case.” 9 The rule provides that “[a] person not authorized to access
a non-public court record may file a motion to access the record.”10
In ruling on a motion or petition under the rule, a court must do
three things: (1) “make findings and conclusions about specific
records”; 11 (2) “identify and balance the interests favoring opening
and closing the record”; 12 and (3) “if the record is ordered closed,
determine there are no reasonable alternatives to closure sufficient to
protect the interests favoring closure.”13
¶24 The rule permits a court to “consider any relevant factor,
interest, or policy” in deciding whether to grant someone access to a
court record. 14 Another rule, rule 4-202, describes several
considerations that could be relevant to a court’s analysis, but the list
is not exhaustive. 15 If a court decides to grant someone access to a
record pursuant to rule 4-202.04, it “may impose any reasonable
conditions to protect the interests favoring closure.” 16
¶25 Mr. Chadwick asks us to balance his interest in accessing
F.L.’s sealed therapy records for purposes of drafting an “adequate
appellate brief” against the State’s and F.L.’s interests in keeping the
records sealed. He requests access to the records and encourages us
to impose “any reasonable protective conditions” we deem
necessary.
_____________________________________________________________
9 UTAH R. JUD. ADMIN. 4-202.04 (2016).
10 Id. R. 4-202.04(2)(B).
11
Id. R. 4-202.04(6)(A). For purposes of complying with this
requirement, the statements in the Background section of this
opinion constitute our findings about F.L.’s therapy and counseling
records.
12
Id. R. 4-202.04(6)(B).
13
Id. R. 4-202.04(6)(C).
14
Id. R. 4-202.04(6).
15 See
id. R. 4-202.
16
Id. R. 4-202.04(2)(B).
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¶26 In particular, Mr. Chadwick identifies the following factors
and rights that he argues favor turning the records over to him for
purposes of appeal: the rules of the Utah Code of Judicial
Administration, his right to appeal, and his due process rights to
fundamental fairness and effective assistance of counsel. Although
he acknowledges F.L.’s and the State’s interests in the records, he
contends that, based on the balance of interests, he is entitled access
to the records. The State and F.L. disagree. In their view, their
interests in keeping the records sealed outweigh any claim Mr.
Chadwick has to accessing the records.
¶27 Below we identify and balance the parties’ interests. For
three reasons, we determine that the interests favoring closure
outweigh the interests favoring Mr. Chadwick’s access to the records
on appeal. First, we find it significant that the parties agreed to the
trial court’s sealing of all nonrelevant records after its in camera
review. Second, United States Supreme Court caselaw indicates that
Mr. Chadwick’s constitutional rights are not violated by his current
inability to access F.L.’s therapy records. And third, F.L.’s interest in
the privacy of her therapy records, in tandem with the State’s
interest in protecting the therapist-patient privilege, weighs in favor
of keeping the records sealed during appellate review.
¶28 After balancing the parties’ interests, we discuss the
alternative approaches Mr. Chadwick proposes and conclude that
they fail to protect F.L.’s and the State’s interests in the records.
I. The Interests Favoring the Records’ Closure Outweigh Those
Favoring Mr. Chadwick’s Access
A. The Trial Court’s Sealing of the Presumptively Privileged Records
Weighs in Favor of Keeping the Records Sealed During Appellate Review
¶29 Mr. Chadwick claims that under the Utah Code of Judicial
Administration, the records he seeks to access should be classified as
private. He explains:
Nothing in our rules or law requires that mental health
records of a complaining witness or victim be
permanently designated as “sealed” when they become
part of the court record. Nothing in our rules or law
required the district court to designate the unreleased
portion of the mental health records to be designated
as “sealed” following the in camera review. Nothing in
our rules or law required the court of appeals to re-seal
the mental health records and prevent [Mr.] Chadwick
from accessing or utilizing them on appeal. And
9
STATE v. CHADWICK
Opinion of the Court
nothing in our rules or law prevent this Court from
authorizing the parties to access the records now.
Specifically, Mr. Chadwick complains that F.L.’s mental health
records are currently classified as “sealed” even though the Utah
Code of Judicial Administration classifies “medical, psychiatric, or
psychological records” and “record[s] submitted for in camera
review” as “private.” 17
¶30 But Mr. Chadwick overlooks two important facts. First, F.L.’s
therapy records are presumptively privileged. 18 Notably, the records
classification provisions that Mr. Chadwick references do not refer to
presumptively privileged records. And if presumptively privileged
medical, psychiatric, and psychological records were classified as
“private”—meaning a party or an attorney for a party may access
them—then Mr. Chadwick would have been entitled to access F.L.’s
therapy records even before the trial court reviewed them to
determine whether they were discoverable. Similarly, a record is not
automatically deemed to become “private” upon being “submitted
for in camera review” as Mr. Chadwick suggests. 19 If that were true,
then, again, Mr. Chadwick would have been entitled to access F.L.’s
therapy records even before the trial court’s review. Accordingly, the
Utah Code of Judicial Administration provisions Mr. Chadwick
references do not address the situation we have here, where a trial
court is reviewing presumptively privileged information in camera
to determine if it is discoverable.20
_____________________________________________________________
17 (Quoting UTAH R. JUD. ADMIN. 4-202.02(4)(N), (U).)
18See UTAH R. EVID. 506(b) (“A patient has a privilege . . . to refuse
to disclose and to prevent any other person from disclosing
information that is communicated in confidence to a physician or
mental health therapist for the purpose of diagnosing or treating the
patient.”).
19 Stated fully, rule 4-202.02(4)(U) provides that a “record
submitted for in camera review” is “private” “until its public
availability is determined.” UTAH R. JUD. ADMIN. 4-202.02(4)(U)
(emphasis added). We understand this to refer to situations in which
a record is discoverable by the parties but where questions of
admissibility need to be resolved before it is publicly disclosed.
20 We encourage the advisory committee on the Utah Code of
Judicial Administration to propose recommendations to address this
gap in rule 4-202.02.
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¶31 Second, upon conducting its review in camera, the trial court
assessed whether the records should be publicly available and,
under the terms of its order authorizing the review, identified and
quoted portions of the records and then sealed the records. 21
¶32 Mr. Chadwick benefited from the procedure the trial court
followed during its in camera review. Ordinarily, for otherwise
privileged communications between a patient and therapist to be
subject to in camera review and disclosure, a defendant must show
that the communications fall within an exception under rule 506(d)
of the Utah Rules of Evidence. 22 In cases with facts similar to those
presented in Mr. Chadwick’s case, we have explained that the
disclosure of communications between a patient and therapist is
“limited and require[s] a showing with reasonable certainty that
exculpatory evidence exists which would be favorable to the
defense.” 23 Here, Mr. Chadwick was relieved of the burden of
meeting this “stringent test”24 because the parties stipulated to the
trial court order authorizing the court’s in camera review.
¶33 In fact, Mr. Chadwick prepared the proposed order, which
was the result of “an agreement” between the parties and the court.
The court directed the parties to “prepare a stipulated order” that
would allow for the records’ delivery to the court. At the following
hearing, Mr. Chadwick’s counsel told the court, “[W]e took a little bit
of time to get an agreement regarding the language that the Court
was looking for on the order for the mental health records . . . . [W]e
do have an agreement now, and I filed the agreed language [of the]
proposed order this morning.” The court signed the stipulated order.
The “agreed language” of that order limited the scope of the court’s
review of F.L.’s therapy records. It provided that the court would
_____________________________________________________________
21 Significantly, the records classification rule cited by Mr.
Chadwick was recently amended to provide that “on appeal, any
record previously designated as sealed by another court” is a sealed
court record. UTAH R. JUD. ADMIN. 4-202.02(3)(I) (2023).
22 See, e.g., State v. Worthen, 2009 UT 79, ¶ 14,
222 P.3d 1144
(explaining that “[t]he privilege described in rule 506(b) has three
exceptions”).
23 State v. Blake,
2002 UT 113, ¶ 19,
63 P.3d 56 (cleaned up).
24
Id. (“This is a stringent test, necessarily requiring some type of
extrinsic indication that the evidence within the records exists and
will, in fact, be exculpatory.”).
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STATE v. CHADWICK
Opinion of the Court
“disclose only those portions” of the records that contained
information falling within the three outlined categories. And it
included an additional limitation on the court’s in camera review,
stating that the “[r]ecords received for review . . . which are not
disseminated shall be retained as part of the Court record but shall
be sealed documents.” 25
¶34 Despite Mr. Chadwick’s agreeing to the limited scope of the
court’s relevance assessment below, now on appeal he endeavors to
expand his rights under that review. Moreover, he now claims that
the trial court’s order was improper because it failed to provide
context and lacked the findings necessary for the court to seal the
records. But without the benefit of a merits brief on appeal, the
extent to which Mr. Chadwick challenged the trial court’s in camera
review is not entirely clear. Although the record indicates that Mr.
Chadwick mentioned to the trial court that “only portions” of the
reviewed records were released to him and that the court was “more
aware” of the information in the records than he was, his challenge
has seemingly expanded on appeal. As F.L. notes, Mr. Chadwick did
not ask the trial court to explain the legal standards it applied in
conducting its review, nor did he inquire into the court’s factual
findings. F.L. also observes that although Mr. Chadwick did initially
request, in his original motion for in camera review of the records,
that the court maintain a privilege log, the court never ruled on that
motion, and the stipulated order did not incorporate his request.
¶35 The State and F.L. do not deny that Mr. Chadwick may
challenge the trial court’s decisions concerning the records. The State
concedes he may challenge the court’s decision to release only some
of the records it reviewed. And it admits he may argue that the trial
court erred in failing to create a privilege log or to review the records
on an ongoing basis. But although the State and F.L. make these
concessions, they contend that Mr. Chadwick cannot sidestep
conventions of appellate practice. The State opines that Mr.
Chadwick’s appellate counsel is not entitled to broader access to
privileged records than trial counsel. F.L. argues that under
longstanding appellate principles, Mr. Chadwick must rest on
_____________________________________________________________
25 The approach followed in this case is consistent with our
directive in State v. Cramer that the defendant “should have
requested that the court seal and retain the records [that were subject
to in camera review] as part of the record.” 2002 UT 9, ¶ 27,
44 P.3d
690.
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arguments advanced below rather than requesting a de novo
balancing of interests. She contends that Mr. Chadwick must point to
facts in the record developed below, 26 and she questions whether he
preserved the issues he raises on appeal.
¶36 We agree with the State and F.L. and conclude that the fact
that the records were sealed under the trial court’s stipulated order
weighs in favor of keeping the records sealed on appeal. At this
point, we defer to the parties’ agreement below concerning the scope
of the court’s in camera review. While Mr. Chadwick is entitled to
challenge the trial court’s findings and determinations, he must
prepare his merits brief using the record established below, without
the benefit of examining the sealed records.
B. Mr. Chadwick’s Counsel Can Fulfill Its Obligations on Appeal Without
Examining the Sealed Records
¶37 Mr. Chadwick identifies certain rights that he claims favor us
granting him access to F.L.’s therapy records for purposes of
preparing an appellate brief. He asserts that he is entitled to receive
notice of important claims, rights, and obligations relevant to his
case, and he contends that his current inability to access the sealed
records violates his right to appeal, as well as his due process rights
to fundamental fairness and effective assistance of counsel.
¶38 First, Mr. Chadwick argues that his need to receive “notice of
important claims, rights[,] and obligations” is a factor supporting his
access to the records. 27 That entitlement to notice, he argues, is
buttressed by rule 14(b) of the Utah Rules of Criminal Procedure and
rule 506(d) of the Utah Rules of Evidence. In his view, the balance
struck by rule 14(b) substantiates his request for notice of important
claims, rights, and obligations because the rule “permits subpoena
and review of private records that are material to the case, while
permitting a court to ‘issue any reasonable order to protect the
privacy of the victim or to limit dissemination of disclosed
records.’”28 And he explains that rule 506(d) strikes a similar balance
by stating that “[n]o privilege exists . . . [f]or communications
_____________________________________________________________
26(Citing Gorostieta v. Parkinson, 2000 UT 99, ¶ 16,
17 P.3d 1110
(“As an appellate court, our power of review is strictly limited to the
record presented on appeal.” (cleaned up)).)
27 (Quoting UTAH R. JUD. ADMIN. 4-202(1)(F).)
28 (Quoting UTAH R. CRIM. P. 14(b)(6).)
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STATE v. CHADWICK
Opinion of the Court
relevant to an issue of the physical, mental, or emotional condition of
the patient . . . in any proceeding in which that condition is an
element of any claim or defense.” 29 Mr. Chadwick thus urges that his
right to present a defense outweighs F.L.’s privacy interest in her
therapy records.
¶39 Next, Mr. Chadwick exhorts us to consider his constitutional
right to appeal as a factor favoring his access to F.L.’s records. He
accurately points out that the right to appeal derives from the state
constitution, statute, and caselaw. 30
¶40 Finally, Mr. Chadwick contends that his due process rights to
fundamental fairness and effective assistance of counsel favor his
access to the records on appeal. As he explains, appellate counsel is
obligated to “play the role of an active advocate, rather than a mere
friend of the court”;31 “to fully state the facts and arguments”; “to
fully brief the issues on appeal ‘with reasoned analysis supported by
citations to legal authority and the record’”; 32 and “to zealously
advocate” on the client’s behalf. 33
¶41 Mr. Chadwick laments that his right to appeal with the
effective assistance of counsel has been “functionally nullified”
because, he reasons, without access to F.L.’s therapy records, he
cannot point to relevant portions of those records; instead, he is
forced to argue vaguely that a review of the records would
demonstrate their materiality. So he seeks access to the sealed
records, explaining that it would be impossible to resolve the
question of whether the currently sealed records are material to his
case without his review of the records.
_____________________________________________________________
29 (Quoting UTAH R. EVID. 506(d)(1)(A).)
30 (Citing UTAH CONST. art. I, § 12 (“In criminal prosecutions the
accused shall have . . . the right to appeal in all cases.”); UTAH CODE
§ 77-18a-1(1) (outlining when a defendant may appeal “as a matter of
right”); Bruner v. Carver, 920 P.2d 1153, 1155 (Utah 1996) (“[T]he right
of a criminal defendant to pursue a direct appeal is a fundamental
constitutional right.”).)
31 (Quoting Evitts v. Lucey,
469 U.S. 387, 394 (1985).)
32 (Quoting UTAH R. APP. P. 24(a)(8).)
33 (Quoting State v. Archibeque,
2022 UT 18, ¶ 15,
509 P.3d 768
(cleaned up).)
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STATE v. CHADWICK
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¶42 Although it is true that the scope of the arguments Mr.
Chadwick can make on appeal may be restricted by his inability to
access the records he seeks, that limitation alone does not entitle him
to examine the records. We have held that such a limitation does not
infringe the right to appeal when “it does not foreclose an appeal but
only narrows the issues that may be raised on appeal.” 34
¶43 Caselaw from the United States Supreme Court further
indicates that the rights Mr. Chadwick invokes do not justify his
access to the sealed records. In Pennsylvania v. Ritchie,35 the Court
balanced a defendant’s (Ritchie’s) right to examine confidential
records that were unavailable to him against the victim’s and the
State’s opposing interests. There, Ritchie was charged with crimes
involving the sexual abuse of a minor. 36 He sought access to the
victim’s Children and Youth Services (CYS) records, claiming they
might contain exculpatory evidence. 37 The trial court declined to
order CYS to turn over the records, and Ritchie appealed, invoking
his constitutional rights. 38 The Supreme Court acknowledged that
because neither the parties nor the court had examined the full CYS
file, it was impossible to know on appeal whether the records bore
on Ritchie’s innocence. 39 It determined that Ritchie was “entitled to
have the CYS file reviewed by the trial court to determine whether it
contain[ed] information that probably would have changed the
outcome of his trial.” 40 But the Court also noted that “[a]lthough the
eye of an advocate may be helpful to a defendant in ferreting out
information,” “[d]efense counsel has no constitutional right to
conduct his own search of the State’s files to argue relevance.”41
Accordingly, the Court denied Ritchie’s request to review the CYS
_____________________________________________________________
34 State v. Rettig, 2017 UT 83, ¶ 22,
416 P.3d 520.
35
480 U.S. 39 (1987).
36
Id. at 43.
37
Id. at 43–44.
38
Id. at 44–45.
39
Id. at 57.
40
Id. at 58.
41
Id. at 59.
15
STATE v. CHADWICK
Opinion of the Court
records, concluding instead that Ritchie’s constitutional rights would
be “protected fully” by the trial court’s in camera review. 42
¶44 The interests at stake here coincide with those in Ritchie.
Accordingly, we adhere to the balance struck by the United States
Supreme Court and conclude that Mr. Chadwick’s rights are
protected fully by the trial court’s in camera review, coupled with
his right to appeal the trial court’s decisions under conventional
appellate principles.
C. F.L.’s and the State’s Interests in the Privacy of F.L.’s Therapy Records
Weigh in Favor of Keeping the Records Sealed During Appellate Review
¶45 The State and F.L. urge us to consider their interests in F.L.’s
records. Mr. Chadwick acknowledges the concerns raised by F.L.
and the State but suggests they can be mitigated.
¶46 The Utah Code of Judicial Administration provides a list of
“interests served by non-public court records.” 43 Those interests
include protecting “personal privacy” as well as protecting “nonparties participating in the court process, such as victims, witnesses,
and jurors.” 44 F.L.’s privacy interest includes her rights under the
VRA, which provides that crime victims are entitled “[t]o be treated
with fairness, respect, and dignity, and to be free from harassment
and abuse throughout the criminal justice process.” 45
¶47 In earlier proceedings before this court in Mr. Chadwick’s
case, we acknowledged F.L.’s privacy interest in her records,
explaining that “crime victims have weighty interests in the privacy
of their therapy records.” 46 Indeed, in State v. Cramer, we expressly
acknowledged victims’ “privacy interests in privileged mental health
records.” 47 And United States Supreme Court caselaw further
_____________________________________________________________
42 Id. at 60.
43 UTAH R. JUD. ADMIN. 4-202(2).
44
Id. R. 4-202(2)(A), (E).
45 UTAH CONST. art. I, § 28(1)(a); see also Blake,
2002 UT 113, ¶ 16
(explaining that the VRA was enacted, in part, “in response to an
increasing recognition that . . . [v]ictims who do survive their attack,
and are brave enough to come forward, turn to their government
expecting it to protect the innocent.” (cleaned up)).
46 F.L. v. Court of Appeals,
2022 UT 32, ¶ 42,
515 P.3d 421.
47
2002 UT 9, ¶ 22,
44 P.3d 690.
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STATE v. CHADWICK
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confirms our decision to safeguard F.L.’s personal privacy interest in
her records, as well as the State’s interest in protecting records like
the ones at issue here. In Ritchie, the Court refused to grant defense
counsel access to the CYS records, stating:
To allow full disclosure to defense counsel in this type
of case would sacrifice unnecessarily the
Commonwealth’s compelling interest in protecting its
child-abuse information. If the CYS records were made
available to defendants, even through counsel, it could
have a seriously adverse effect on Pennsylvania’s
efforts to uncover and treat abuse. . . . It therefore is
essential that the child have a state-designated person
to whom he may turn, and to do so with the assurance
of confidentiality. 48
¶48 Under the therapist-patient privilege, the State has a
compelling interest in protecting the confidentiality of F.L.’s mental
health records. 49 There are, of course, exceptions to the privilege,
including “situations in which otherwise privileged
communications” between crime victims and therapists “might be
subject to in camera review and disclosure.” 50 Our caselaw has
developed a “stringent test” for demonstrating an exception to the
therapist-patient privilege, and “[t]he difficulty in meeting th[e] test
is deliberate and prudent in light of the sensitivity of these types of
records and the worsening of under-reporting problems in the
absence of a strong privilege.”51
¶49 We have also acknowledged the potentially “chilling effect of
piercing” the relationship between therapist and patient. 52 And the
United States Supreme Court has warned of this potentially chilling
effect, stating: “Because of the sensitive nature of the problems for
which individuals consult psychotherapists, disclosure of
_____________________________________________________________
48 Ritchie, 480 U.S. 39 at 60.
49 See Blake,
2002 UT 113, ¶ 18 (describing the privilege as
“reflecting [a] good policy choice[], fostering candor in important
relationships by promising protection of confidential disclosures”
(cleaned up)).
50 Id. ¶ 19.
51 Id.
52 Id. ¶ 5.
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STATE v. CHADWICK
Opinion of the Court
confidential communications made during counseling sessions may
cause embarrassment or disgrace. . . . [T]he mere possibility of
disclosure may impede development of the confidential relationship
necessary for successful treatment.” 53 The strong policy interests,
described in the VRA and caselaw, in protecting F.L.’s rights as a
victim and in encouraging candor in confidential communications
between therapists and patients therefore weigh against granting
Mr. Chadwick access to F.L.’s records for purposes of preparing an
appellate brief.
¶50 In sum, the balance of interests weighs against Mr.
Chadwick’s access to F.L.’s sealed therapy records for purposes of
preparing an appellate brief. The trial court’s sealing of the records
resulted from a stipulated order that Mr. Chadwick himself
prepared; Mr. Chadwick need not review the sealed records to
challenge the trial court’s determinations; and F.L.’s personal interest
and the State’s institutional interest in protecting the records tip the
scale against Mr. Chadwick’s access to the records on appeal.
II. There Is No Reasonable Alternative to the Records’ Closure
Sufficient to Protect F.L.’s and the State’s Interests
¶51 Having decided that the balance of the interests favors
keeping F.L.’s confidential therapy records sealed during appellate
review, we must determine whether any reasonable alternative
exists that adequately protects the interests favoring closure. 54
¶52 Mr. Chadwick observes that we could elect to perform our
own in camera review of F.L.’s therapy records, but he discounts that
approach as being “impractical and unconstitutional.” 55 Instead, he
_____________________________________________________________
53 Jaffee v. Redmond, 518 U.S. 1, 10 (1996).
54 See UTAH R. JUD. ADMIN. 4-202.04(6)(C) (2016) (“[I]f the record is
ordered closed, [the court must] determine there are no reasonable
alternatives to closure sufficient to protect the interests favoring
closure.”).
55 Although we do not rule on the constitutionality or
appropriateness of this approach, we note that at least one state
appellate court has conducted its own in camera review of privileged
records when reviewing a challenge to a trial court’s materiality
determination. See, e.g., People v. Frost,
5 P.3d 317, 323–24 (Colo. App.
1999) (conducting appellate in camera review of confidential records
and agreeing “with the trial court’s conclusion that the non-disclosed
documents were not relevant to any issue before the court”).
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STATE v. CHADWICK
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recommends we grant the parties access to the records while
imposing “reasonable conditions” on that access. He proposes that
we restrict who may see the records (e.g., counsel only), specify how
the records are to be stored and handled, prohibit the unauthorized
dissemination of the records, and/or require the filing of public and
private briefs. According to Mr. Chadwick, the conditions he
proposes protect F.L.’s and the State’s interests in the records
without depriving him of his rights as an appellant.
¶53 We conclude that these alternative paths—conducting our
own review of the records or granting Mr. Chadwick limited access
to them—are inconsistent with the interests favoring closure,
including F.L.’s privacy interest in her records. In addition, we agree
with F.L. that granting even limited records access to Mr. Chadwick
at this point in his appeal would risk creating satellite litigation in all
confidential records cases. Rather than permitting litigants to request
access to sealed records before arguing the merits of their appeal—
thus necessitating the development of jurisprudence balancing the
parties’ interests in each case—the simpler approach is to allow
litigants to pursue an appeal by challenging the lower court’s
decisions based on the available court record.
¶54 Again, we reiterate that Mr. Chadwick is not without options
on appeal. He is entitled to argue that he was prejudicially harmed
by errors the trial court made. If he is successful, the result could be
that we remand to the trial court for an additional in camera review.
But we conclude that the conditions Mr. Chadwick proposes do not
sufficiently protect the interests we have identified in favor of
keeping the records sealed during appellate review.
Conclusion
¶55 We decline to grant Mr. Chadwick access to the records he
seeks. He must proceed on appeal by making arguments based on
the record established below.
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