Chapter 5 501 Privileges Recognized Only as Provided

• Library: Evidence Guide 2003

§501 Privileges recognized only as provided

§502 Lawyer-client privilege

§503 Physician/psychologist/professional counselor/social worker/marital and family therapist/dentist-patient privilege

§504 Husband-wife privilege

§505 Communications to clergy

§506 Accountant-client privilege

§507 Political vote

§508 Auxiliary aids and services provider/interpreter/
transliterator/relay agent(impaired person privilege

§501 Privileges Recognized Only as Provided

Except as otherwise provided by law, no person has a privilege or claim of “confidential” information to:

(1) refuse to be a witness;

(2) refuse to disclose any matter;

(3) refuse to produce any object or writing; or

(4) prevent another from being a witness, disclosing any matter, or producing any object or writing.

Notes

The authority under which an individual may withhold or suppress relevant information is limited to instances of recognized privileges provided by law. A parent-child privilege is an example of an unrecognized privilege as to which the courts have expressly deferred to the legislature. State v. Bruce, 655 S.W.2d 66, 68 (Mo. App. E.D. 1983). Several of the “privilege” statutes discussed in this comment use the term “confidential” rather than privilege. But it is arguable that the legislature intended use of these terms synonymously. Support for that position is found in a decision applying § 210.150, now RSMo 2000. See State v. Moesch, 738 S.W.2d 585, 588 (Mo. App. E.D. 1987). But see State ex rel. Mo.

Ethics Comm’n v. Nichols, 978 S.W.2d 770 (Mo. App. E.D. 1998) (distinguishing confidentiality from privileges).

In addition to those set forth in §§502–507, other privileges declared by Missouri statute or founded on appellate decisions include the following:

1. Syphilis blood test result

Section 210.040, RSMo 2000, treats as privileged the results of blood tests for syphilis by any person undertaking the obstetrical or gynecological care of pregnant women in Missouri and furnished to the Division of Health .

2. Employment security record

Section 288.250, RSMo 2000 does not create an absolute privilege, but its scope is not decided. State ex rel. Von Hoffman Press, Inc. v. Saitz, 604 S.W.2d 770, 772 (Mo. App. E.D. 1980).

3. Juvenile proceeding matters

Section 211.271.3, RSMo 2000 covers communications to a juvenile officer or juvenile court personnel. State v. Wright, 515 S.W.2d 421, 427–31 (Mo. banc 1974). The statute does not apply to the use of lineups or fingerprints because this is not equated with taking of statements or confessions expressly mentioned in the statute. See State v. Richardson, 495 S.W.2d 435, 438–40 (Mo. banc 1973). A later statute, § 491.078, RSMo 2000, permits limited impeachment use of juvenile adjudications. See §609(b), infra. An additional limitation on § 211.271.3, RSMo 2000, occurs in impeachment of a juvenile witness in a criminal trial. State v. Russell, 625 S.W.2d 138, 141–42 (Mo. banc 1981). The privilege is subject to waiver. See State ex rel. Rowland v. O’Toole, 884 S.W.2d 100 (Mo. App. E.D. 1994).

4. Trade secret

The owner of a trade secret may prevent its disclosure if no fraud or other injustice results. See Stuckes v. Nat’l Candy Co., 138 S.W. 352, 356 (Mo. App. E.D. 1911). The privilege is not absolute. See Putney v. Du Bois Co., 226 S.W.2d 737, 741–42 (Mo. App. S.D. 1950). An owner of a trade secret who is not entitled to absolute secrecy may request relief in restricting the manner in which disclosure is required. See Rule 56.01(c)(7).

5. Identity of informer

The state has a qualified privilege to withhold the identity of persons who furnish information to officials charged with the duty to investigate crime. State v. Rollie, 962 S.W.2d 412, 415–16 (Mo. App. W.D. 1998). The privilege belongs to the state rather than the informant and may be claimed by a representative acting in the public interest, including the person to whom the disclosure was made. In re McClelland, 521 S.W.2d 481, 485 (Mo. App. E.D. 1975). The privilege does not apply once the identity of the informer has become known to the defendant. State v. Younger, 633 S.W.2d 161, 162–63 (Mo. App. W.D. 1982). The trial judge in the exercise of discretion should inquire whether, under the circumstances, nondisclosure violates fundamental fairness because information on the merits is possessed by the informer. State v. Taylor, 508 S.W.2d 506, 512 (Mo. App. E.D. 1974). Other factors may require disclosure. See State v. Nafziger, 534 S.W.2d 480, 482–84 (Mo. App. W.D. 1975). If the informer’s identity is essential to a fair determination of the legality by which evidence has been obtained against the defendant, the court may require disclosure. State v. Edwards, 317 S.W.2d 441, 445–47 (Mo. banc 1958).

6. Health care review and records matters

Section 537.035.4–.6, RSMo 2000, provides that the “proceedings, findings, deliberations, reports, and minutes of peer review committees,” id. (emphasis added), related to health care are privileged with certain exceptions.

Section 630.167.3(2), RSMo 2000, provides that the “proceedings, findings, deliberations, reports and minutes of investigators or of committees” with responsibility to evaluate the quality of mental health services are generally privileged. But the same matter is available to certain boards and agencies. Section 630.167.3(3) & (4).

Section 197.477, RSMo 2000, provides that the Department of Health may disclose certain general information concerning an inspection of a health facility or agency. All other information related to the inspection is confidential, except for disclosure to the subject of the inspection or evaluation.

Section 630.140, RSMo 2000, provides limited confidentiality to the information and records obtained in the course of providing services to clients held by a residential facility or day program.

7. Confidentiality of report and record related to child abuse or neglect

Section 210.150, RSMo 1994, provides that reports and records of child abuse and neglect under §§ 210.109–210.183, RSMo 2000 and Supp. 2002, are, with eight exceptions, confidential. State v. Moesch, 738 S.W.2d 585, 588 (Mo. App. E.D. 1987). Information related to certain background checks may be released in a limited form.

8. Limitation of privileges in proceedings for the termination of parental rights

Section 211.459.4, RSMo 2000, provides that, in any proceeding for the termination of parental rights, the only privileges that will be recognized are the attorney-client and the priest, minister, or rabbi-parishioner privileges.

9. Report and record concerning an individual’s HIV

infection status

Section 191.656.1, RSMo Supp. 2002, provides that an individual’s HIV infection status is confidential and may not be disclosed except under certain statutory exceptions. Section 191.656.2(3) limits further disclosure of an individual’s HIV infection status when the original disclosure was made under § 191.656.1(1)(b) or (c). Section 191.656.3 treats as “privileged” all communications between HIV test subjects and anyone who performs HIV blood sampling as an apparent extension of the physician-patient privilege. Sections 191.659, RSMo Supp. 2002, and 191.663, RSMo 2000, authorize disclosure to crime victims of test results of offenders. Section 191.658, RSMo 2000, authorizes disclosure to health care workers or law enforcement officers who are exposed to blood or other fluids during their duties information on the status of the source individual.

10. Information related to arbitration proceeding

Section 435.014, RSMo 2000, treats any confidential communication relating to the dispute as settlement negotiations. See the Notes to §408 for further details. Section 435.014 also prevents an arbitrator, conciliator, or mediator from being compelled to disclose information related to the arbitration proceeding. See Kenney v. Emge, 972 S.W.2d 616, 620–21 (Mo. App. E.D. 1998).

11. Highway Patrol “criminal record review” information

Section 43.540.5, RSMo Supp. 2002, relating to information available to “youth services agenc[ies]” or providers of care to minors, provides that such information “shall be used solely for the provider’s or youth service agency’s internal purposes in determining the suitability of an applicant or volunteer.”

12. Information acquired from 911 call

Section 610.150, RSMo 2000, provides that information from a 911 caller is “inaccessible to the general public.” But the information is available to law enforcement, the Division of Workers’ Compensation, or under a court order and information consisting of the date, time, specific location, and facts and circumstances of the initial report of the crime or incident are an incident report and subject to § 610.100, RSMo 2000.

13. Expunged arrest records

Section 610.120, RSMo 2000, provides that expunged records are “inaccessible” to all persons other than the defendant with listed exceptions. See Kuenzle v. Mo. State Highway Patrol, 865 S.W.2d 667 (Mo. banc 1993); State ex rel. McHaffie v. Bunch, 891 S.W.2d 822, 831 (Mo. banc 1995).

14. Information from the “putative father registry”

Section 192.016.5, RSMo Supp. 2002, authorizes introduction in evidence of an unrevoked notice of intent to claim paternity. Section 192.016.6 limits access to the putative father registry.

15. Information maintained by Cancer Information Reporting System

Section 192.655, RSMo 2000, directs the Department of Health to protect the identity of a patient, physician, hospital, or other listed providers or facilities that are involved in a report required by § 192.653, RSMo 2000.

16. Information regarding pregnant women referred for substance abuse

Section 191.731, RSMo 2000, provides that the records and reports regarding a pregnant woman who has been referred for substance abuse are confidential with two limited exceptions found in §§ 191.737 and 191.743, RSMo 2000.

17. Information obtained through wiretapping

Sections 542.400–542.422, RSMo 2000...