N.G. v. Superior Court

BOLGER, Judge,

concurring.

I agree with the reasonably broad construction of the psychotherapist-patient privilege discussed in the lead opinion. I write separately to note that this construction avoids some thorny constitutional questions.

For example, N.G. argues that an order compelling a crime victim to provide a list of all of her health care providers could violate the victim's right to privacy under Article I, § 22 of the Alaska Constitution.1 In view of this fundamental right, it is arguable that any such order must be narrowly drawn so that disclosure is limited to information for which there is a demonstrable and compelling need.2

Moreover, as a crime victim, N.G. had the right to be "treated with dignity, respect, and fairness during all phases of the criminal . process" under Article I, § 24 of the Alaska Constitution. Construing similar constitutional language, another state court has required a criminal defendant, in order to justify in camera review of a crime vie-tim's treatment records, to make a strict foundational showing that there is: (1) a reasonable certainty that exculpatory evidence exists, which would be favorable to the defense; and (2) a reasonable probability that, if the evidence were disclosed to the defense, the result of the proceeding would be different.3

We are not required to decide these constitutional questions because the disclosure order in this case unnecessarily infringes on the psychotherapist-patient privilege. But these cireumstances serve as a reminder that a healthy construction of this privilege is necessary to avoid infringing privacy inter*341ests protected by the constitution.4

. See Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469, 479-80 (Alaska 1977) (annulling a statute that required doctors seeking public office to disclose the names of their patients).

. See Messerli v. State, 626 P.2d 81, 86 (Alaska 1980) (holding that a campaign disclosure statute that affected the right to privacy would have to be justified by a "legitimate and compelling governmental interest").

. See State v. Blake, 63 P.3d 56, 60 (Utah 2002).

. See State v. R.H., 683 P.2d 269, 280-81 (Alaska App.1984).