Opinion
Case No. 99-71007
March 16, 2001
MEMORANDUM OPINION AND ORDER DECLARING DISCLOSURE OF INFORMATION BY GOVERNMENT TO PLAINTIFFS NOT TO VIOLATE THE FEDERAL PRIVACY ACT
Plaintiffs have filed a Section 1983 claim against various Detroit Police Officers, the City of Detroit, the former police chief, the Commander of the Sixth Precinct, and the Detroit Police Department. Pursuant to a Fed.R.Civ.P. 45 subpoena plaintiffs sought information from the Federal Bureau of Investigation ("FBI") regarding its investigation of several officers in the Sixth Precinct. In order to obtain this information from the United State's Attorney, Plaintiffs need a declaration from the Court that disclosure of the information will not violate the Federal Privacy Act, 5 U.S.C. § 552a. Plaintiffs moved for such an order, and the motion was referred for hearing and determination pursuant to 28 U.S.C. § 636(b)(1)(A). on February 15, 2001, a telephonic hearing was held on the motion.
The hearing was adjourned until March 15, 2001, for additional briefing and so that Plaintiffs could detail exactly what information the United State's Attorney was willing to provide to them assuming the Court would enter an order declaring disclosure of the information not to violate the Privacy Act. The Court also was to provide notice and limited standing to appear at the subsequent hearing to any parties whose privacy might be infringed by disclosure of the information sought by Plaintiffs. See Laxalt v. McClatchy, 809 F.2d 885, 890 (D.C. Cir. 1987) ("the broad authority of the District Court in supervising discovery surely affords it the discretion to give such notice itself and ask affected parties to appear" when information sought about them is protected by the Privacy Act).
Plaintiff is not seeking through this motion information beyond that which the United States Attorney is willing to provide. In order to obtain this information, Plaintiff would need to file an action against the government.
Plaintiffs have submitted the list of information that the United States Attorney is willing to provide. It includes 302 investigative reports by the FBI pertaining to defendants Radford and Hatcher as well as court exhibits from the case of United States v. Owens and Radford, 97-81134 (E.D.Mich. 1997), a criminal case arising out of the same allegations as in this case. Because defendants Hatcher, Owens, and Radford are represented in this action, no special notice needed to be provided to them regarding Plaintiffs' motion. It is possible that there are other persons mentioned in those court exhibits apart from these defendants or the other defendants in this action. Nevertheless, it was determined that the privacy interests of such individuals is negligible because the exhibits are already part of this district's public court record and are readily available from this Court should the Plaintiffs not be able to obtain the information from the United States Attorney. Cf. U.S. Department of Justice v. Reporters Committee, 109 S.Ct. 1468, 1477 (1989) (in finding that FBI rap sheets were subject to the protection of the Privacy Act, "[p]lainly there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations, throughout the country and a computerized summary located in a single clearinghouse of information"). Unlike the cumbersome, multiple court, possible nationwide search that provided a de facto privacy in Reporters Committee, here the transcripts and exhibits are clearly identifiable in a single case and only the financial cost of obtaining them would be substantially higher.
Defendant Hatcher relies on the Supreme Court's decision in the Reporters Committee case in opposing Plaintiffs' motion. In that case, the Reporters Committee for Freedom of the Press and a CBS news correspondent sought through the Freedom of Information Act ("FOIA") FBI rap sheets concerning four members of the Medico family, a family with alleged links to organized crime. Id. at 1473. Justice Stevens considered whether disclosure of these records "`could reasonably be expected to constitute an unwarranted invasion of personal privacy' within the meaning of the [FOIA]," 5 U.S.C. § 552(b)(7)(C). Id. at 1470. After an extensive review of the purposes of the Privacy Act, the purpose fo the FOIA, the history and law around rap sheets, and other case law, Justice Stevens found that such disclosure would constitute an unwarranted invasion of personal privacy:
The FOIA and the Privacy Act are interrelated. Under the Privacy Act, "No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by or with the prior written request of, the individual to whom the record pertains, unless the disclosure of the record would be . . ." 5 U.S.C. § 552a(b). Thereafter, a number of exceptions to the general rule are listed. One exception, § 552a(b)(2), is for the disclosure of any information required under the FOIA. The other exception, § 552a(b)(11), is for disclosures made pursuant to the order of a court of competent jurisdiction.
The question in this case is which one of these exceptions should provide the test for the disclosures Plaintiffs seek. If it is the FOIA exception, then the next issue requires analysis of that statute. See 5 U.S.C. § 552. The particular provisions analyzed in Reporters Committee would be at issue if that were the case. Specifically, the FOIA while allowing disclosure of numerous types of information compiled by the government, will not allow the disclosure of information compiled for law enforcement purposes if it "could reasonably be expected to constitute an unwarranted invasion of personal privacy." § 552(b)(7)(C).
as a categorical matter that a third party's request for law enforcement records or information about a private citizen can reasonably be expected to invade that citizen's privacy, and that when the request seeks no "official information" about a Government agency, but merely records that the Government happens to be storing, the invasion of privacy is "unwarranted."Reporters Committee, 109 S.Ct. at 1485. Justice Stevens also clarified that the identify of the individual(s) seeking the information has no bearing on the merits of requests made pursuant to the FOIA. Id. at 1481.
Plaintiffs in the brief in support of their motion rely on Laxalt, 809 F.2d at 890, supra. In that case, the defendants to a libel action sought information from the FBI on Senator Paul Laxalt, and, as here, moved for an order that disclosing it would not violate the Privacy Act. Id. at 887. The District Court denied the motion because the defendants had failed to show that they needed the information in question. Id. In an opinion by Harry T. Edwards, now Chief Judge of the D.C. Circuit, the Circuit Court reversed:
The Privacy Act . . . does not create a qualified privilege as that concept is generally understood. . . . Rather, the plain language of the statute permits disclosure "pursuant to the order of a court of competent jurisdiction." 5 U.S.C. § 552a(b)(11) (1982). Neither the statute nor anything in its legislative history specifies the standards for issuance of such a court order. We therefore find no basis for inferring that the statute replaces the usual discovery standards of the [Federal Rules of Civil Procedure ("FRCP")] . . . [A] party can invoke discovery of materials protected by the Privacy Act through the normal discovery process and according to the usual discovery standards, and the test of discoverability, is the relevance standard of Rule 26(b)(1) of the FCRP.Id. at 888-889. Judge Edwards went on to state a district court's supervisory powers would often be weightier when the information sought is protected by the Privacy Act. Id. at 889. This might require courts to issue protective orders, perform in camera inspections, and to inform affected parties in order to promote as much as possible the policies of the Privacy Act. Id. at 889-890.
Although Laxalt was decided before Reporters Committee, there is no reason to conclude that Supreme Court overruled Laxalt with its decision in Reporters Committee because the cases are distinguishable on a critical element. Reporters Committee involved a FOIA request for information from the FBI about members of the Medico family by third parties. In Laxalt, the parties seeking information were doing so as part of their discovery in a civil case and the discovery that implicated privacy concerns related to the plaintiff in that case. In such a pretrial case, a party's privacy rights are already modified because each party is subject to the compulsory discovery rules of the court. In such cases, courts have available the protective mechanisms noted by Judge Edwards to lessen the intrusion on the privacy interests of parties. As under Laxalt:, the Privacy Act allows for disclosure of information that would ordinarily be discoverable in federal courts pursuant to the rules of civil procedure. That Laxalt remains good law in the D.C. Circuit in the wake of Reporters Committee is evident by the D.C. Circuit's reliance on it in Lohrenz v. Donnelly, 187 F.R.D. 1, 8 (D.C. Cir. 1999), which discussed Laxalt at length. Further, there has not been any contrary authority in the Sixth Circuit or elsewhere. Accordingly, the standard set forth by Judge Edwards in Laxalt will be the standard utilized here to determine whether Plaintiffs are entitled to an order declaring disclosure of the information they seek from the government nor to violate the Privacy Act.
There is, however, at least one district court decision in the Sixth Circuit which relies heavily on Laxalt in addressing the relationship between discovery under Fed.R.Civ.P. 26 and the Privacy Act. See Gary v. United States, 1998 WL 834853, No. 98-6964 (E.D. Tenn.).
Defendant Owens' counsel at the first telephonic hearing cited a case that was purportedly inconsistent with Laxalt, and which stood for the proposition that documents regarding criminal investigations cannot be disclosed absent a waiver by those persons investigated, Fund for Constitutional Government v. National Archives and Records Service, 656 F.2d 856, 865 (D.C. Cir. 1981). That case does not stand for the proposition stated in the context of a discovery request as in this case and Laxalt. As in Reporters Committee, the Fund for Constitutional Government case involved a FOIA request for information regarding criminal investigations. It is inapposite for the same reasons discussed in the text regarding Reporters Committee.
There is a concern that allowing parties to obtain information protected by the Privacy Act through discovery will give rise to the filing of lawsuits for the mere purpose of circumventing the Supreme Court's ruling in Reporters Committee. There is no such allegation in this case. Plaintiffs allege that they were robbed, falsely arrested, and framed by the defendant (former) police officers. These same allegations were also investigated by the FBI. It is clear that Plaintiffs seek the information compiled by the FBI for the appropriate purpose of preparing their lawsuit. An additional safeguard and reason for assurance in this case is that the FBI does not oppose disclosure of the information. Although the concern about circumventing FOIA is a real one, this is not the proper case for questioning the sensible and persuasive precedent set forth in Laxalt for parties properly seeking discovery.
Accordingly, in this case the issue is whether the information sought is relevant or reasonably calculated to lead to the discovery of admissible evidence. See Fed.R.Civ.P. 26 (b). The relevance of the information sought or the possibility it may lead to admissible evidence is readily apparent. The 302 investigative reports sought on Hatcher and Radford pertain to the same allegations in this civil action. Similarly, the criminal trial of Owens and Radford along with the exhibits thereto also relate to these events, Plaintiffs have met their burden under Fed.R.Civ.P. 26(b), and are entitled to the requested information.
on March 22, 2000, Judge Nancy G. Edmunds entered an order staying the proceedings against defendant Radford in light of the pending appeal of his criminal conviction in the Sixth Circuit. Counsel for defendant Radford at the telephonic hearing on March 15, 2001, for the first time contended that defendant Radford's privacy rights would be infringed by allowing disclosure of 302 investigative reports pertaining to him because of his pending appeal. The undersigned is aware that a stay was granted to protect defendant Radford's right to be free from compulsory self incrimination under the Fifth Amendment. The 302 reports at issue, however, have not been challenged on Fifth Amendment grounds, and there is no apparent Fifth Amendment concern with allowing plaintiffs access to the reports. Further, although there is a stay with regard to defendant Radford in this case, the 302 reports pertaining to him have an independent legal significance. This is because of the allegations of group conduct violating plaintiffs' rights and because plaintiffs need to prove a policy or practice of allowing or encouraging such conduct to prevail against the City of Detroit. See Sova v. City of Mount Pleasant, 142 F.3d 898, 904 (6th Cir. 1998). Thus, this order is not inconsistent with Judge Edmund's order staying the proceeding against Radford.
Accordingly,
IT IS ORDERED AND DECLARED THAT DISCLOSURE by the government of the information sought by plaintiffs through subpoena, including 302 investigative reports by the FBI pertaining to defendants Radford and Hatcher as well as court exhibits from the case of United States v. Owens and Radford, 97-81134 (E.D.Mich. 1997), WILL NOT VIOLATE the Privacy Act, 5 U.S.C. § 552a.
SO ORDERED.