Summary
redacting social security numbers, home addresses and home telephone numbers contained in law enforcement personnel and internal affairs files prior to production
Summary of this case from Frierson v. City of TerrellOpinion
Civil Action No. 99-2200, Section "C" (2)
May 8, 2000
ORDER AND REASONS
Plaintiffs, Michael Chauvin, Velma Chauvin and Adam Chauvin, moved to compel defendants, Jefferson Parish Sheriff Harry Lee and Deputy Joseph Chiasson, to respond to requests for production of documents propounded to them, seeking the Sheriff's personnel, internal affairs division ("IAD") and citizen complaints files concerning defendant Chiasson. Defendants objected to the requests for production, arguing that the requested files contain (unspecified) "privileged communications" and that many of the documents therein are irrelevant. A ruling on the motion was deferred until the Court could conduct an in camera review of the requested documents. Record Doc. No. 31.
Plaintiffs allege that Chiasson, while a deputy with the Jefferson Parish Sheriff's Department in July 1998, deprived them of their constitutional rights through excessive force, unlawful arrests and unlawful searches and seizures, and committed state law torts against them. They also contend that Sheriff Lee negligently or intentionally hired Chiasson despite Chiasson' s alleged history of unprofessional conduct while previously employed by the St. Charles Parish Sheriff. Complaint, Record Doc. No. 1.
Sheriff Lee has provided me with all materials responsive to plaintiffs' requests for in camera review. Having reviewed the materials in camera and having considered the written submissions of counsel, the record and the applicable law, IT IS ORDERED that the motion is GRANTED IN PART AND DENIED IN PART for the following reasons.
Under Louisiana's Public Records Law, the requested personnel and IAD records are defined as public records and are available for public inspection unless specifically excepted by law. La. Rev. Stat. Ann. §§ 44:1, 44:3 (West 1983); Nix v. Daniel, 669 So.2d 573, 575 (La.App. 1st Cir. 1996).
The Louisiana Public Records Law provides in pertinent part that Sheriffs records and the information contained therein are protected from disclosure only if they are:
(1) Records pertaining to pending criminal litigation or any criminal litigation which can be reasonably anticipated, until such litigation has been finally adjudicated or otherwise settled; or (2) Records continuing the identity of a confidential source or information which would tend to reveal the identity of a confidential source of information; or (3) Records continuing security procedures, investigative training information or aids, investigative techniques, investigative technical equipment or instructions on the use thereof, or internal security information; . . . (5) Records continuing the identity of an undercover police officer or records which would tend to reveal the identity of an undercover police officer;. . . .
La. Rev. Stat. Ann. § 44:3. Furthermore, the home telephone number of the public employee if it is unlisted; the home telephone number of the public employee when the employee has requested that the number be kept confidential; and the home address of the employee when the employee has requested that the address be kept confidential, shall be confidential personnel records. Id. § 44:11 (West Supp. 1999).
Federal common law, not Louisiana law, governs defendants' discovery objections. Fed.R.Evid. 501. "When considering a federal claim, federal courts apply federal common law, rather than state law, to determine the existence and scope of a privilege. Federal courts will, however, consider state policies supporting a privilege in weighing the government's interest in confidentiality." Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991) (citing Fed.R.Evid. 501). Although plaintiffs have asserted claims under both federal and state law, "all of the circuits that have directly addressed this issue have held that the federal law of privilege governs on issues of discoverability and/or admissibility," even when the evidence sought is relevant to a pendent state claim. Hinsdale v. City of Liberal, 961 F. Supp. 1490, 1493 (D. Kan.) (citing cases from Second, Third, Sixth, Seventh Eleventh Circuits), aff'd, 981 F. Supp. 1378 (D. Kan. 1997); accord Torres v. Kuzniasz, 936 F. Supp. 1201, 1208 (D.N.J. 1996).
A police officer's personnel files and IAD documents do not enjoy blanket protection from discovery. Coughlin is the controlling case on this question.
Federal common law recognizes a qualified privilege protecting investigative files in an ongoing criminal investigation or information which would reveal the identity of confidential informants. . . . Louisiana law creates a similar privilege. To determine whether this qualified privilege bars discovery of given documents, the trial court should consider the ten factors articulated in Frankenhauser v. Rizzo[, 59 F.R.D 339, 344 (E.D. Pa. 1973),] in balancing the government's interest in confidentiality against the litigant's need for the documents.Coughlin, 946 F.2d at 1159-60 (citing La. Rev. Stat. Ann. §§ 44:1, 44:3) (emphasis added). The Fifth Circuit's opinion in Coughlin makes it clear that no blanket privilege exists under federal common law for either personnel files or IAD records. Coughlin, 946 F.2d at 1159-60; Wilson v. Martin County Hosp. Dist., 149 F.R.D. 553, 555 (W.D. Tex. 1993); accord Everitt v. Brezzel, 750 F. Supp. 1063, 1066 (D. Colo. 1990); Mockler v. Skipper, No. 93-1117-FR, 1994 WL 41334, at 3-4 (D. Or. Feb. 3, 1994).
Some courts have held that similar statutes in other states do not create evidentiary privileges, but are merely exceptions to the general rule that the public has a right to inspect any public record. E.g., Hinsdale, 961 F. Supp. at 1494-95 (Kansas law, which prohibits disclosure of personnel matters discussed in closed executive sessions, is designed to protect privacy rights of public employees, not to create privilege against disclosure in court proceedings); Brown v. State, 173 F.R.D. 262, 263-64 (D. Or. 1997) (same, as to Oregon public records law).
Defendants, as the parties resisting discovery, bear the burden of demonstrating the existence of any privilege. High Tech Communications, Inc. v. Panasonic Co., No. 94-1477, 1995 WL 45847, at 1 (E.D. La. Feb. 2, 1995) (Vance, J.) (citing Hodges, Grant Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir. 1985)). Privileges, as exceptions to the demand for relevant evidence and derogations from the search for the truth, are strictly construed. Hinsdale, 961 F. Supp. at 1495 (citingUnited States v. Nixon, 418 U.S. 683, 710 (1974)). Special caution should be exercised in recognizing a privilege in a civil rights case because "application of the federal law of privilege, rather than state law, in civil rights actions is designed to ensure that state and county officials may not exempt themselves from the very laws which guard against their unconstitutional conduct by claiming that state law requires all evidence of their alleged wrongdoing to remain confidential." Torres, 936 F. Supp. at 1213; accord Hinsdale, 961 F. Supp. at 1495. To invoke a privilege against disclosure of law enforcement records, the Sheriff must make a "'substantial threshold showing' that specific harms are likely to result from disclosure."Morrissey v. City of N.Y., 171 F.R.D. 85, 92 (S.D.N.Y. 1997) (emphasis added).
Application of the Frankenhauser factors, as the Coughlin court recommended, dictates in favor of permitting some of the requested discovery. These factors are:
(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 the 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 police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiffs suit is non-frivolous 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.Frankenhauser, 59 F.R.D at 344.
Applying these factors to plaintiffs' request for Sheriff Lee's IAD and personnel records on Deputy Chiasson, I find that some of the records should be disclosed. I have seen no confidential information from citizens in the files, and the Sheriff has not specifically identified any specific information of this sort in his submissions. There is no evidence that any law enforcement programs or procedures would be compromised by release of the information.
Furthermore, many courts have rejected the theory that disclosure of such records would have a significant chilling effect on future IAD investigations. Morrissey, 171 F.R.D. at 92 (citing Thompson v. Keane, No. 95 CIV. 2442, 1996 WL 125659, at 2 (S.D.N.Y. Mar. 20, 1996); Wong v. City of N.Y., 123 F.R.D. 481, 482-84 (S.D.N.Y. 1989); King v. Conde, 121 F.R.D. 180, 193 (E.D.N.Y. 1988)); Mockler, 1994 WL 41334, at 3 (citations omitted).
On the face of the complaint and subject to Fed.R.Civ.P. 11, plaintiffs have made nonfrivolous allegations of serious misconduct, which the federal civil rights laws are designed to redress. It is probable that plaintiffs would be unable to discover relevant, discoverable information contained in the files through other means. However, Sheriff Lee has raised some legitimate privacy and confidentiality concerns, which are not sufficient to prevent this discovery but which can be accommodated by an appropriate protective order.
My review of the personnel files confirms that much that is contained in them is wholly irrelevant (for example, documents relating to medical and annual leave, income taxes, weapons and uniform purchases, and health insurance and retirement plans). Plaintiffs' motion to compel production is DENIED as to those types of documents, and the Sheriff may remove them from the files before their production.
However, some documents in the files, such as training records, commendations, pre-employment references, pre-employment psychological testing records, complaints by members of the public and IAD investigatory files, are relevant and discoverable. Accordingly, IT IS ORDERED that the motion is DENIED as to the following documents, which Sheriff Lee must produce to plaintiffs no later than May 26, 2000:
1. all certificates of training or courses completed;
2. all JPSO field training weekly observation reports and memoranda recommending advancement from training;
3. signed "Code of Conduct" receipt;
4. all letters of commendation by police officers;
5. all documents relating to citizen complaints, civil rights investigations and lawsuits filed against Deputy Chiasson;
6. pre-employment polygraph examination report; and
7. all pre-employment letters of recommendation or reference.IT IS FURTHER ORDERED that all personnel records produced shall be subject to the following protective order. Sheriff Lee must redact any social security numbers, home addresses and home telephone numbers contained in the records before they are produced. All information produced in accordance with this order must be marked and kept confidential and used only for purposes of this litigation and must not be disclosed to any one except parties to this litigation, the parties' counsel of record and experts retained in connection with this litigation. All persons to whom such information is disclosed must sign an affidavit that must be filed into the record, agreeing to the terms of the protective order and submitting to the jurisdiction of this Court for enforcement of those terms. If any party seeks to add other terms to this protective order, counsel must confer immediately and submit by motion any proposed protective order.