Opinion
Case No. 97-11234-SSM, Adversary Proceeding No. 99-1046
July 20, 1999
Stephen H. Ratliff, Fairfax, VA, of Counsel for the plaintiff
John W. Bevis, Esquire, Byrd Mische P.C., Fairfax, VA, of Counsel for the defendant
Robert M. Ross, Esquire, Fairfax, VA, of Counsel for Detective Perez and the Fairfax County Police Department
MEMORANDUM OPINION AND ORDER
This matter is before the court on a motion filed by the Fairfax County Police Department and Detective Richard J. Perez on May 17, 1999, to quash a subpoena duces tecum dated May 3, 1999, seeking all "reports, notes, investigative notes, field notes, correspondence, written statements, visual or audio recordings, signed statements, photographs, diagrams, and/or any other materials in reference to the investigation of the death of Rachael Lynn Madsen." A hearing was held in open court on July 6, 1999, at which the plaintiff and the County of Fairfax, Virginia, on behalf of its police department and Detective Perez, appeared by counsel. The County subsequently delivered to the court under seal a complete copy of the police department's file for in camera review.
Background
This adversary proceeding concerns the tragic death of a five-year old child, Rachael Lynn Madsen, by drowning on January 11, 1996, while in the custody of Dennis D. Rogers and his wife, Donna Sue Rogers. Rachael had been removed from the custody of her parents, Allen and Mya Madsen, after a medical diagnosis of failure to thrive, and placed in foster care with Mr. and Mrs. Rogers. Mrs. Rogers was a licensed child care provider. On the day of her death, Rachael had been sick in bed with vomiting and diarrhea. In the afternoon, she had an attack of diarrhea. According to Mrs. Rogers, she washed Rachael in the tub, took her out and dried her, and told her to get dressed. Mrs. Rogers went downstairs and, when she returned approximately 15 minutes later, found Rachael face down in the tub. Mr. Rogers, who had earlier left the house to pick up his niece from work, returned at that point. The niece called "911" while Mr. Rogers attempted to administer CPR. Resuscitation efforts were unsuccessful, and Rachael was pronounced dead shortly after her arrival at the hospital. An autopsy concluded that death was by drowning. An extensive investigation was conducted by the Fairfax County Police Department, but as of this date no criminal charges have been brought.
On February 12, 1996, just one month after Rachael's death, Mr. and Mrs. Rogers filed a chapter 13 petition in this court. That case was dismissed on December 17, 1996, on motion of the chapter 13 trustee. On January 14, 1997, they filed another chapter 13 petition, which was dismissed on February 13, 1997. Thereafter, Mr. and Mrs. Rogers filed separate chapter 7 petitions, he on February 20, 1997, she on December 3, 1997. In none of their petitions did they list any claim against them related to Rachael's death. Each case was a "no asset" case in which no bar date was set for filing claims. Mr. Rogers received a discharge on June 6, 1997, and Mrs. Rogers received a discharge on March 18, 1998.
On January 9, 1998, Allen T. Madsen, Rachael's father, filed a wrongful death action in the Prince William County Circuit Court against Mr. and Mrs. Rogers, as well as the City of Manassas Park, Virginia, and the director of the City of Manassas Park Department of Social Services. Madsen v. City of Manassas Park et.al., Law No. 45265. The motion for judgment, which for some reason was not formally served on Mr. and Mrs. Rogers until December 21, 1998, alleged causes of action against Mr. and Mrs. Rogers for Rachael's death based on theories both of negligence and of willful and wanton conduct. In that action, Mr. Madsen served a subpoena duces tecum on the Fairfax County Police Department and Detective Perez, the lead investigator, for his investigative file. The Department and Detective Perez filed a motion to quash. Ultimately, the state court ordered that the Department produce all information and material that would be discoverable by a criminal defendant under Rule 3 A: 11, Rules of the Supreme Court of Virginia. In response, the Department turned over an autopsy report, 23 photographs, and a typed summary of four oral statements given by Mrs. Rogers to police investigators. Mr. Madsen returned to the state court, asserting that the Department had not fully complied with that court's order, but the state judge, after reviewing the complete file in camera, ruled that the Department had complied.
At the time the wrongful death action had been filed in state court, Mr. Madsen was unaware of the bankruptcy filings by Mr. and Mrs. Rogers. After learning of them, he brought a motion to reopen and jointly administer their cases. The motion to reopen was granted, and adversary proceedings were filed against Mr. and Mrs. Rogers to determine the dischargeability of the wrongful death claim. It is in the context of the adversary proceeding against Mr. Rogers that Mr. Madsen has caused a subpeona duces tecum — essentially identical in scope with that in the state court action — to be served on the Department and Detective Perez.
Discussion
Federal Rules of Civil Procedure 34(c) and 45, made applicable to this adversary proceeding by Federal Rules of Bankruptcy Procedure 7034 and 7045, allow a party to obtain documents from a non-party by subpoena. Federal Rule of Civil Procedure 26(b)(1), which is incorporated by Federal Rule of Bankruptcy Procedure 7026, allows discovery "regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action" (emphasis added). Since the information sought by the plaintiff's subpoena duces tecum is clearly "relevant to the subject matter" of this adversary proceeding, the question resolves to whether the information is "privileged." Although no Virginia statute or reported Virginia decision states that police investigative files are privileged from being used as evidence in judicial proceedings, the Department urges recognition of a public-policy privilege for police investigative files based on the exceptions to disclosure contained in the Virginia Privacy Protection Act of 1976, Va. Code Ann. § 2.1-377 et seq., and the Virginia Freedom of Information Act, Va. Code Ann. § 2.1-340 et seq. The former exempts from its provisions "personal information systems . . . [m]aintained by . . . police departments of cities, counties, and towns," Va. Code Ann. § 2.1-384(7); while the latter exempts from mandatory disclosure, "[m]emoranda, correspondence, evidence and complaints related to criminal investigations" as well as "reports submitted to the state and local police . . . in confidence." Va. Code Ann. § 2.1-340(B)(1). Additionally, the County has cited to Va. Code Ann. § 16.1-301, which limits disclosure of "law enforcement records concerning a juvenile." In support of the motion to quash, the County has filed a copy of an affidavit of Detective Perez — originally filed with the state court — stating that the investigation into Rachael's death remains open; that Donna Rogers remains under a "cloud of suspicion"; that some of the information in the file was provided by informants who had requested anonymity; and that release of information from the file would substantially hinder the ongoing investigation "and all but preclude prosecution."
In a "no asset" chapter 7 bankruptcy case, an unlisted debt is nevertheless discharged unless it is a debt of the type described in 11 U.S.C. § 523(a)(2), (a)(4), or (a)(6), or is not dischargeable under some other provision of the Bankruptcy Code. In re Woolard, 190 B.R. 70 (Bankr. E.D. Va. 1995) (leaving open, however, the question of whether the claim of a deliberately-omitted creditor would be discharged). In the present case, the only apparent basis for excepting the wrongful death claim from discharge would be that it was not listed on the schedules and is a debt of the type described in 11 U.S.C. § 523(a)(6), that is, "for willful and malicious injury by the debtor to another entity or to the property of another entity." The Supreme Court has recently made it clear that to be "willful" the injury must be intentional, and not merely the result of negligent or reckless conduct. Kawaauhau v. Geiger, — U.S. —, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). Thus, it is plainly relevant — indeed, central — to the issue of nondischargeability whether Rachael's death was intentionally caused.
Federal Rule of Evidence 501 provides as follows with respect to evidentiary privileges:
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.
Rule 501 goes on to state, "However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law." While the underlying wrongful death claim is clearly one as to which state law — in this case, Virginia law — supplies the rule of decision, the issue of dischargeability is governed by Federal bankruptcy law. Thus, the court is not required to reach the issue of whether Virginia courts would recognize the privilege claimed here.
As the Supreme Court has cautioned,
Testimonial exclusionary rules and privileges contravene the fundamental principle that "`the public . . . has a right to every man's evidence.'" As such, they must be strictly construed and accepted "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth."
Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 912, 63 L.Ed.2d 186 (1980) (ellipsis in original; internal citations omitted). In this connection, Federal courts have recognized an "official information privilege" which allows a governmental department or agency to refuse to give evidence upon a showing of reasonable likelihood of danger that the evidence will disclose official information, the disclosure of which would be contrary to the public interest. 3 Joseph McLaughlin, Weinstein's Evidence, § 509.20 at 509-13. With particular regard to investigatory files, a privilege will be recognized where the file relates to an ongoing investigation or one in which law enforcement proceedings are current or imminent. 3 Joseph McLaughlin, Weinstein's Evidence § 509.22 at 509-18; see NERB v. Robbins Tire and Rubber Co., 437 U.S. 214, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978) (disclosure of witness statements given to NLRB could not be compelled under Freedom of Information Act prior to hearing on unfair labor practice complaint); Spannaus v. U.S. Dept. of Justice, 813 F.2d 1285 (4th Cir. 1987) (Government not required to release FBI investigative file under Freedom of Information Act where disclosure could result in destruction or alteration of evidence, intimidation or harm to knowledgeable individuals, and fabrication of fraudulent alibis); J.P. Stevens Co., Inc. v. Perry, 710 F.2d 136 (4th Cir. 1983) (EEOC investigatory file exempt from disclosure under Freedom of Information Act where adequate showing was made that production would interfere with enforcement proceedings); Wichlacz v. U.S. Dept. of Interior, 938 F. Supp. 325, 330 (E.D. Va. 1996) (Park Police investigatory file into suspicious death exempt from disclosure under Freedom of Information Act where "(1) law enforcement proceedings are pending or prospective; and (2) release of the information could reasonably be expected to cause some articulable harm.").
To be sure, most of the reported cases discussing the official information privilege involve requests under the Freedom of Information Act, which addresses the right of the general public to government information, rather than, as here, a private litigant who has a particularized need for the evidence in order to obtain redress in a court of law. Nevertheless, the court concludes that the scope of the privilege is properly measured not by the strength of the requesting party's need to know but rather by the government's need to maintain confidentiality. Accordingly, the same standard will apply where a private litigant seeks to compel the production of evidence from a criminal investigative file as when that information is requested by, say, a journalist. That is, a privilege will be recognized where (1) law enforcement proceedings are pending or prospective; and (2) release of the information could reasonably be expected to cause some articulable harm. Wichlacz, 938 F. Supp at 330.
With respect to the first prong of the test, the court readily finds, based on a review of the file, that a criminal investigation is still on-going. While it may be an overstatement to assert, as Detective Perez does in his affidavit, that the investigation is "very" active, it clearly has not been closed or abandoned, and the court cannot find that the prospect of a criminal prosecution is remote or unlikely.
The more difficult issue is whether the release of the information could reasonably be expected to cause some articulable harm. The generalized assertion of Detective Perez in his affidavit that release of the file would "all but preclude prosecution" is of little assistance to the court. As discussed above, certain information has already been released to the plaintiff in compliance with the state court's order. This includes a summary of four oral statements made by Mrs. Rogers, 23 photographs of the Rogers' home and of Rachael's body, and the autopsy report. There are a few additional items in the file that are publicly-available documents the release of which could not possibly impede any likely prosecution. These include, for example, the Police Department's own press release of January 16, 1996; Rachael's birth certificate; the Family Day Care License issued to Mrs. Rogers; and a newspaper report of the filing of Mr. Madsen's lawsuit. Other documents, such as copies of Rachael's medical records, are presumably available to the plaintiff directly from the medical care providers who treated or examined her.
Although the statements were provided in the form of a re-typed "summary" rather than in the form they exist in the investigative file — that is, raw hand-written field notes and a typed investigation report — the court has compared the summary with the field notes and is satisfied that the summary fairly sets forth the substance of the oral statements as recorded by the interviewers.
The copies in the police file contain some notations that appear to reflect the thought processes of the investigator.
The remaining documents consist primarily of raw notes of interviews by Detective Perez and other investigators with various potential witnesses, as well as a hand-drawn investigator's sketch of the upstairs bathroom and of Rachael's bedroom, together with a typed investigative report containing the theories of the lead investigator. There are also notes related to a polygraph examination of Mrs. Rogers. There are no lab reports other than the autopsy report, which has already been furnished, and no photographs, other than the 23 already furnished. There is no recording or transcript of the call made to 911. And there are no tape recordings of the interviews with Mr. or Mrs. Rogers (or any other witness) and no signed statements by Mr. or Mrs. Rogers.
Her answers to the three questions posed by the examiner, as well as a statement she made following the examination, are included in the summary of testimony previously furnished to the plaintiff; however, the examiner's conclusions concerning her truthfulness have not been provided.
It is far from clear that the police department has custody of tape recordings (assuming they were retained) of the 911 telephone call. The file does contain a computer transcript reflecting the dispatch of police units to the Rogers' residence on January 11, 1996; but aside from time of dispatch, time of arrival, and the names of the officers dispatched, it provides no useful information.
The court has little difficulty in concluding that releasing the identity of, and statements by, informants who have provided investigative leads could reasonably tend to intimidate those persons (and other potential informants) from providing further information that might be crucial to a prosecution and could also lead to efforts to influence their testimony. Additionally, premature disclosure of the statements of prospective witnesses and of the investigators' observations could facilitate the fabrication of testimony. Spannaus, 813 F.2d at 1289. Thus, the court will not require production of the investigators' notes, Detective Perez's report, or the contents of statements made by third-party witnesses.
The court will require, however, that the Police Department release to the plaintiff the contents of the oral statements made by Mr. Rogers. It is the plaintiffs theory that Mr. Rogers is not merely a witness but a culprit. Obviously, his statements to the police made at a time when his memory was much fresher than it would be now — three and a half years after the event (and before he would have had an opportunity to conform his version of the events to that of his wife and the other persons present at the house) — are highly probative. The contents of his wife's oral statements have already been released, and, having reviewed the notes of the interview with him, the court cannot find that there is any reasonable likelihood that disclosing his statements would impede the investigation or imperil a prosecution. As with the statements of Mrs. Rogers, the content of those statements need not consist of the raw interview notes but may be set forth in a summary that omits the investigator's conclusions and speculations.
ORDER
For the foregoing reasons it is
ORDERED:
1. The motion to quash is granted in part and denied in part. The Fairfax County Police Department and Detective Perez are required to produce to the plaintiff, within ten (10) days of the entry of this order, the contents of the oral statements made by Dennis D. Rogers. The raw interview notes are not required to be provided, and for the purpose of complying with this order, the disclosure may consist of a narrative statement fully and fairly setting forth the substance of the statement as reflected in the notes. A copy of the summary shall concurrently be provided to chambers. The remaining documents listed in the subpoena duces tecum (other than those already provided in compliance with the order of the Circuit Court of Prince William County) are not required to be produced.
These documents need not be produced a second time.
2. The clerk will mail a copy of this memorandum opinion and order to the parties listed below.