Opinion
Case No. 4:07CV00996 ERW.
September 18, 2008
MEMORANDUM AND ORDER
This matter comes before the Court on the Court's in camera review of documents. Pursuant to the Court's Memorandum and Order dated August 29, 2008, Defendants submitted to the Court a proposed protective order, the Internal Affairs card files for all officers present at the scene, and information regarding all citizen complaints and investigations between 9/3/99 and 9/3/02 that related to allegations of the excessive use of force, police brutality, abusive conduct, assault or battery.
Plaintiff has filed claims against the St. Louis Board of Police Commissioners alleging a policy or practice of failing to train, instruct, supervise, control and discipline police officers. To pursue these claims, Plaintiff asked that Defendants disclose certain Internal Affairs documents. In response, the Government has objected to the disclosure of these documents on the basis of executive privilege.
This privilege is a governmental privilege and it should only be invoked in extreme circumstances. See Brown v. Thompson, 430 F.2d 1214 (5th Cir. 1970). The general rule is that "a plaintiff alleging misconduct by police officers and a municipal policy condoning such alleged misconduct is entitled to discovery of the internal affairs investigations conducted by the police department regarding the incident of which he complains and regarding other similar incidents involving the police department or the individual police officers about whom plaintiff complains."
To determine whether documents should be disclosed, the Court engages in a balancing test weighing, "the public interest in nondisclosure against the need of the particular litigant for access to the privileged information." Hemstreet v. Duncan, 2007 WL 4287602, at *2 (D. Or. Dec. 4, 2007) ( quoting Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1341 (D.C. Cir. 1984)). When the documents sought "are `both relevant and essential' to the presentation of the case on the merits, `the need for disclosure outweighs the need for secrecy,' and the privilege is overcome." Hemstreet, 2007 WL 4287602, at *2 ( quoting In re Search of Premises Known as 1182 Nassau Averill Park Road, 203 F.Supp.2d 139, 140 (N.D.N.Y. 2002).
Ten factors are generally relied upon by courts when deciding whether internal affairs documents are protected by this privilege;
(1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the investigation has been completed; (7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff's suit is nonfrivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiff's case.Hemstreet, 2007 WL 4287602, at *2 ( citing Frankenhauser v. Rizzo, 59 FRD 339, 344 (E.D. Pa 1973)). The Court has considered these factors, and finds that disclosure is appropriate. To alleviate the Court's concerns regarding the first and second factors, the Court will order Defendants to redact certain information. Defendants must redact the names and personal contact information of all private citizens in these Internal Affairs documents. Defendants shall not redact the names of any police officers mentioned in these Internal Affairs documents, but shall redact any police officer's personal contact information that is contained in these documents. Personal contact information includes addresses, social security numbers, date of birth, family information and telephone numbers.
Plaintiff's suit has been brought in good faith and this information is both important and relevant to Plaintiff's claims. Accordingly, Defendants must disclose the following IAD reports:
99/326 99/332 99/347 99/348 99/350 99/351 99/352 99/389 99/390 99/395 99/404 99/416 99/430 99/432 99/433 00/004 00/011 00/027 00/029 00/030 00/039 00/049 00/061 00/076 00/086 00/095 00/097 00/102 00/108 00/111 00/133 00/134 00/135 00/147 00/165 00/168 00/169 00/170 00/178 00/182 00/183 00/190 00/202 00/210 00/222 00/223 00/241 00/244 00/249 00/250 00/266 00/290 00/304 00/305 00/322 00/340 01/008 01/009 01/021 01/031 01/033 01/037 01/038 01/055 01/063 01/065 01/067 01/079 01/080 01/083 01/089 01/091 01/129 01/132 01/151 01/155 01/158 01/159 01/163 01/167 01/180 01/181 01/192 01/197 01/204 01/218 01/240 01/253 01/269 01/273 01/300 01/301 02/004 02/005 02/006 02/038 02/063 02/068 02/070 02/079 02/081 02/082 02/120 02/136 02/101 02/118 02/120 02/137 02/139 02/140 05/231 Additionally, Defendants must disclose the following items from the card files of those officers present at the scene; Ronald Mueller, IAD # 06/067 and Luther Hall, IAD #97/115.Accordingly,
IT IS HEREBY ORDERED that Defendants must disclose the above listed documents to Plaintiff's counsel on or before September 23, 2008. Plaintiff's response to Defendants' Motion for Summary Judgment must be submitted on or before September 30, 2008. Defendants' Reply must be submitted on or before October 6, 2008. Trial remains set on a 3-week docket beginning November 3, 2008. These deadlines may hinder the Court's ability to rule the pending Motion for Summary Judgment prior to the Parties' deadline to file pretrial compliance, which is October 14, 2008. IT IS FURTHER ORDERED that the following Protective Order shall be imposed on the documents disclosed pursuant to this order:
1. As used in this order, CONFIDENTIAL MATERIAL shall mean and refer to all Internal Affairs Division records and personnel records produced to Plaintiff's counsel pursuant to this Memorandum and Order. 2. All CONFIDENTIAL MATERIAL shall be retained only in the custody of the respective counsel of record, who shall be responsible for restricting disclosure in accordance with the provisions of this Memorandum and Order. Specifically, counsel shall retain all CONFIDENTIAL MATERIAL within the confines of his or her personal offices except as is necessary to conduct the present litigation. 3. All CONFIDENTIAL MATERIAL and the facts and information in the CONFIDENTIAL MATERIAL shall not be disclosed to any person except as provided below. 4. All CONFIDENTIAL MATERIAL shall be designated as CONFIDENTIAL MATERIAL by marking the word "CONFIDENTIAL" or some similar phrase on the face of the documents. 5. Access to CONFIDENTIAL MATERIAL shall be limited to Plaintiff, counsel of record for the respective parties to this action, regular employees and law clerks of said counsel who are assisting in the prosecution of this litigation, expert witnesses identified by Plaintiff or Defendant, consulting experts, and appropriate court personnel in the regular course of litigation. 6. The CONFIDENTIAL MATERIAL may not be disclosed to the Plaintiff and other persons other than counsel of record unless accompanied by a copy of this Protective Order. Additionally, counsel must inform said person(s) of the terms of this Protective Order, and said person(s) must agree to be bound by its terms. 7. If it becomes necessary to submit CONFIDENTIAL MATERIAL to the Court in connection with any filings or proceedings in this litigation, the party using it shall file such CONFIDENTIAL MATERIAL under seal. 8. Nothing in this Memorandum and Order shall be construed to restrict the use or disclosure of any documents which a party or non-party shall have acquired from independent sources. 9. Upon final conclusion of this action, counsel to whom the CONFIDENTIAL MATERIAL has been disclosed shall return such CONFIDENTIAL MATERIAL (along with all copies thereof, and all other papers containing such CONFIDENTIAL MATERIAL) to the party which produced it, or take measures to destroy copies of said CONFIDENTIAL MATERIAL. 10. This Protective Order may be modified or amended by agreement of the parties or upon further Order of the Court.