Summary
In Henneman v. Toledo, 520 N.E.2d 207, 35 Ohio St. 3d 241, 242 (Ohio 1988), the Ohio Supreme Court addressed the issue of whether information and records compiled by a police department pursuant to its internal investigation of alleged police misconduct was discoverable.
Summary of this case from Kauffman v. Medina Cnty. Clerk of CourtsOpinion
No. 87-335
Decided March 9, 1988.
Discovery — Civil rights — Municipal corporations — Policemen — Records and information compiled by internal affairs division discoverable, when.
O.Jur 3d Discovery §§ 33, 49. O.Jur 3d Records and Recording §§ 15, 25.
Records and information compiled by an internal affairs division of a police department are subject to discovery in civil litigation arising out of alleged police misconduct if, upon an in camera inspection, the trial court determines that the requesting party's need for the material outweighs the public interest in the confidentially of such information.
APPEAL from the court of Appeals for Lucas County.
On July 7, 1982, plaintiff-appellee, Mary Ann Henneman, filed the instant action against appellant, J.P. Smith, a police officer employed by appellant city of Toledo, and against the city itself. Appellee alleged multiple claims, including a deprivation of various federally protected civil rights and assault and battery. These claims stemmed from an incident on January 12, 1982 in which Officer Smith allegedly used excessive force in effecting appellee's arrest.
During the course of discovery, appellee propounded a number of interrogatories and requests for production of documents, to which appellants, for various reasons, declined to respond. Appellee moved for orders compelling appellants to respond. Appellants countered by moving for protective orders, contending, inter alia, that a number of the discovery requests called for privileged information. Specifically, appellants alleged that any information compiled by or on behalf of the Internal Affairs Department of the Toledo Division of Police is confidential, privileged, and not subject to discovery.
The trial court granted appellants' motions in substantial part and issued protective orders regarding the vast majority of those interrogatories and requests for production to which appellants had objected. With respect to those discovery requests which called for information or documents from the Internal Affairs Department, the trial court ruled that "the confidentiality of these records must be preserved due to the chilling effect that public exposure may have on the ability of the Internal Affairs to gather the information required. To even order an in camera inspection would imply that the court may pick and choose information to be exposed, which would have just as much [of] a chilling effect. * * *"
The case proceeded to trial by jury. At the close of appellee's evidence, and again before the case was submitted to the jury, appellants moved for a directed verdict. This motion was granted with regard to all claims except the assault and battery claims against both appellants and the actions asserted against appellant Smith under Section 1983, Title 42, U.S. Code. The jury returned a verdict in favor of appellants.
The court of appeals reversed in part and affirmed in part, and remanded to the trial court for further proceedings. The appellate court held that the trial court erred in its ruling that any information or records pertaining to the investigation conducted by internal affairs are privileged and not subject to discovery. The appellate court reversed the trial court's orders protecting this information from disclosure, and remanded to the trial court for a determination of whether a qualified privilege exists under the test adopted in the federal decisions, particularly Frankenhauser v. Rizzo (E.D. Pa. 1973), 59 F.R.D. 339. As to the trial court's protective orders suppressing the remaining interrogatories and requests for production on other grounds, the court of appeals reversed the great majority of those orders, emphasizing that much of the information requested was relevant, discoverable and within the knowledge of appealants.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
R. Michael Frank and Charles Stupsker, for appellee.
Sheldon M. Rosen, director of law, and Geoffrey H. Davis, for appellants.
Gallon, Kalniz Iorio Co., L.P.A., Ted Iorio and Christine A. Reardon, urging reversal for amicus curiae, Toledo Police Patrolmen's Assn.
The principal question posed by this appeal is whether information and records compiled by a police department pursuant to its internal investigation of alleged police misconduct are subject to an executive privilege, either qualified or absolute, protecting such information and records from the normal discovery requirements of civil litigation. We hold that such evidence must be disclosed upon a proper discovery request if, pursuant to an in camera inspection, the trial judge determines that the public interest in the confidentiality of such information is outweighed by the litigant's specific need for the evidence.
Where a particular claim is based on the United States Constitution or federal statutes, federal law controls on the question of evidentiary privilege. Kerr v. U.S. Dist. Court for Northern Dist. of Cal. (C.A. 9, 1975), 511 F.2d 192, 197. Conversely, where the relief sought relies upon Ohio law, the most appropriate source of applicable legal principles would be the law of privilege as it exists in this state. See Evid. R. 501. Since appellee's complaint contains both federal and state claims, we must look to both sources of authority, so that the relevant law may be applied to each claim.
The federal cases are clear. The rule of absolute privilege for internal affairs information adopted in Kott v. Perini (N.D. Ohio 1968), 283 F. Supp. 1, upon which the trial court apparently relied, has been rejected overwhelmingly in subsequent decisions. The leading case appears to be Frankenhauser v. Rizzo (E.D. Pa. 1973), 59 F.R.D. 339. In Frankenhauser, the plaintiffs brought a civil rights action alleging police misconduct in the death of a man shot by police officers. The question before the Frankenhauser court was whether the plaintiffs had the right to seek discovery of relevant police investigative records, including internal reports of statements made by members of the defendant police department regarding the incident. The court rejected the defendants' claim of executive privilege, ruling that the documents requested are not absolutely protected from disclosure under these circumstances. In so holding, the Frankenhauser court discounted defendants' argument that compelled disclosure of such information will have a chilling effect on the department's ability to pursue its investigations and will impede candid evaluation of the conduct of its members. Id. at 342. The court reasoned that such a view fails to allow for the willingness of the police and of the public in general to cooperate fully with law enforcement officials. Id. at 344. However, the court recognized that the confidentiality of such information often serves a legitimate public interest, particularly in an ongoing criminal investigation:
See, e.g., Diamond v. Mobile (S.D. Ala. 1978), 86 F.R.D. 324; Crawford v. Dominic (E.D. Pa. 1979), 469 F. Supp. 260; Sirmans v. South Miami (S.D. Fla. 1980), 86 F.R.D. 492; Mercy v. Suffolk (E.D.N.Y. 1982), 93 F.R.D. 520; Elliott v. Webb (D. Idaho 1983), 98 F.R.D. 293; Spell v. McDaniel (E.D. N.C. 1984), 591 F. Supp. 1090; Tyner v. Jackson (S.D. Miss. 1985), 105 F.R.D. 564; Urseth v. Dayton (S.D. Ohio 1986), 110 F.R.D. 245, 252.
"* * * [W]hen executive privilege is asserted, the court must balance the public interest in the confidentiality of governmental information against the needs of a litigant to obtain data, not otherwise available to him, with which to pursue a non-frivolous cause of action. Needless to say, the balancing task will often be difficult and the ingredients of the test will vary from case to case. In the context of discovery of police investigation files in a civil rights case, however, at least the following considerations should be examined: (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 plaintiff's 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." Id. at 344.
In camera inspection of the documents by the trial judge is the most appropriate method of dealing with claims of executive privilege. Kerr v. U.S. Dist. Court for Northern Dist. of Cal. (1976), 426 U.S. 394, 406. By conducting such an inspection in chambers away from the jury and without the presence or participation of counsel for either party, the trial judge may make the necessary determination without compromising the confidentiality of any information he finds to be privileged. Upon such inspection in light of the factors outlined in Frankenhauser, and any other factors deemed relevant by the court, information found to be discoverable may then be disclosed to the requesting party on the condition that access to the materials be limited to the requesting party's counsel and persons employed by counsel in connection with the case. Urseth v. Dayton (S.D. Ohio 1986), 110 F.R.D. 245, 257. Any records requested by the plaintiff which the trial judge deems to be nondiscoverable under the Frankenhauser test will then be sealed and made part of the record, so that an appellate court faced with the question may determine whether the trial court abused its discretion in withholding such records.
The Frankenhauser rule of qualified privilege for internal affairs records and files has been adopted by the vast majority of those federal courts presented with the question. Thus, with regard to appellee's federal claims, the trial court erred in applying an absolute privilege to such information, barring appellee from access thereto without considering the balancing factors outlined in Frankenhauser.
See cases cited in fn. 1, supra.
We turn now to a consideration of whether the law of Ohio recognizes an absolute privilege with regard to records and information compiled in the course of an internal affairs investigation by a police department. Appellants argue that such records are absolutely protected from disclosure by R.C. 149.43, Ohio's public records statute, and by R.C. Chapter 1347, Ohio's Privacy Act. We cannot agree.
R.C. 149.43(B) requires that "[a]ll public records shall be promptly prepared and made available for inspection to any member of the general public at all reasonable times during regular business hours. * * *" R.C. 149.43 (A) defines the term "public record" and specifically exempts confidential law enforcement investigatory records from the disclosure requirement. The term "confidential law enforcement investigatory record" is defined in R.C. 149.43(A)(2) as follows:
"`Confidential law enforcement investigatory record' means any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following:
"(a) The identity of a suspect who has not been charged with the offense to which the record pertains, or of an information source or witness to whom confidentiality has been reasonably promised;
"(b) Information provided by an information source or witness to whom confidentiality has been reasonably promised, which information would reasonably tend to disclose his identity;
"(c) Specific confidential investigatory techniques or procedures or specific investigatory work product;
"(d) Information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source."
In arguing that internal affairs investigatory files are shielded from disclosure in this case by the foregoing provisions, appellants rely heavily on cases from this court holding that law enforcement investigation records are exempt from the public disclosure requirements of R.C. 149.43. E.g., Wooster Republican Printing Co. v. Wooster (1978), 56 Ohio St.2d 126, 10 O.O. 3d 312, 383 N.E.2d 124, paragraph four of the syllabus; State, ex rel. Dayton Newspapers, Inc., v. Rauch (1984), 12 Ohio St.3d 100, 12 OBR 87, 465 N.E.2d 458. Appellants' reliance is misplaced. These cases stand for the proposition that the law enforcement records described in R.C. 149.43(A)(2) are not subject to the requirement of R.C. 149.43(B) that all public records must be made available to the general public upon request at any reasonable time. Appellee herein is not contending that the records she requests must be made available to her as a member of the general public. R.C. 149.43 (A)(2) only operates to exempt the records described therein from the requirement of availability to the general public on request. It does not protect records from a proper discovery request in the course of litigation, if such records are otherwise discoverable. Thus, R.C. 149.43 is not dispositive.
Appellants next argue that the information appellee requests is protected from disclosure by the provisions of R.C. Chapter 1347, and specifically R.C. 1347.08. Again, appellants have misapprehended the scope of the statute. "A basic purpose of * * * [R.C. Chapter 1347] is to protect the individual's rights to privacy with regard to public record keeping. Amended Substitute Senate Bill No. 99 of the 111th General Assembly, codified as R.C. Chapter 1347, states in its preamble that its objective is to `regulate the use of personal information by state and local governments * * * and to protect the privacy of individuals from excessive record keeping by government.'" (Emphasis added.) Wooster Republican Printing Co., supra, at 133, 10 O.O. 3d at 316, 383 N.E.2d at 128. We do not believe that R.C. Chapter 1347 was intended to shield the personal information described therein from a legitimate discovery request when such information is otherwise discoverable.
The pertinent portions of R.C. 1347.08 provide:
"(A) Every state or local agency that maintains a personal information system, upon the request and the proper identification of any person who is the subject of personal information in the system, shall:
"(1) Inform the person of the existence of any personal information in the system of which he is the subject;
"(2) Except as provided in divisions (C) and (E)(2) of this section, permit the person, his legal guardian, or an attorney who presents a signed written authorization made by the person, to inspect all personal information in the system of which he is the subject;
"(3) Inform the person about the types of uses made of the personal information, including the identity of any users usually granted access to the system.
"* * *
"[(E)](2) This section does not provide a person who is the subject of personal information maintained in a personal information system, his legal guardian, or an attorney authorized by the person, with a right to inspect or have copied, or require an agency that maintains a personal information system to permit the inspection of or to copy, a confidential law enforcement investigatory record or trial preparation record, as defined in divisions (A)(2) and (4) of section 149.43 of the Revised Code. * * *"
We find no Ohio authority for the proposition that police internal investigation records are entitled to an absolute privilege such that any and all requests for discovery of such records in the course of litigation may properly be refused. Nor do we consider such a blanket rule desirable. However, we recognize that the public has an important interest in the confidentiality of information compiled in the course of police internal investigations. In many instances, disclosure of such information may work to undermine investigatory processes by discouraging persons with knowledge from coming forward or by revealing the identities of confidential sources. There may very well be an overriding need in particular cases for protecting the identities of members of the police force or of the general public who come forward with information about alleged police abuses. Appellants assert that the confidentiality of internal affairs reports is necessary to protect the privacy of police officers. Another equally important interest may exist in some cases: the need for concealing the identities of informants or citizens who participate in internal investigations. All these interests support the requirement of an in camera inspection of the requested records by the trial judge for the purpose of determining whether confidentiality is paramount.
Amicus curiae, Toledo Police Patrolmen's Association, asserts in its brief that members of the police force must respond to questions asked of them in any internal investigation or face disciplinary action, including possible dismissal. It is argued that disclosure of statements made under such circumstances violates the constitutionally guaranteed right against self-incrimination. We note that the existence of such a policy in the department compelling members to respond to questioning under threat of discipline can have no bearing on the rights of third persons such as appellee. While we express no opinion on whether the department's policy violates the Fifth Amendment to the United States Constitution and its guarantee against self-incrimination, it could be argued that any such department policy or bargaining contract provision would be fraught with constitutional difficulty of immense proportions.
We hold, therefore, that records and information compiled by an internal affairs division of a police department are subject to discovery in civil litigation arising out of alleged police misconduct if, upon an in camera inspection, the trial court determines that the requesting party's need for the material outweighs the public interest in the confidentiality of such information. Of course, the request for such information is still subject to the normal standards of discovery. For example, if the files contain privileged medical records or if the request is vague or burdensome, a properly delineated protective order may be issued upon motion. But we reject the notion that an absolute privilege automatically protects internal investigation reports from a legitimate request for discovery. Dayton v. Turner (1984), 14 Ohio App.3d 304, 14 OBR 362, 471 N.E.2d 162.
Appellants next assert that the court of appeals improperly substituted its judgment for that of the trial court in evaluating the protective orders issued on grounds other than privilege. A great number of appellee's interrogatories and other requests for discovery were suppressed by the trial court on the basis that the requests were overly broad, vague, conclusory and/or burdensome. Our review of the record compels the conclusion that the court of appeals acted properly in those instances where it reversed the trial court's determinations. In our view, the trial court was overzealous in its efforts to protect appellants from what it perceived to be inappropriate discovery requests. For example, the first interrogatory propounded by appellee to the city of Toledo requested the "names and addresses of all persons who witnessed or otherwise have knowledge of the facts and circumstances surrounding the arrest of * * * [appellee] on January 12, 1982." The trial court issued a protective order suppressing this interrogatory on the basis that it was "overly burdensome." As noted by the court of appeals, this information is highly relevant and within the knowledge of the party to whom the interrogatory was propounded. We cannot see how the request is overly burdensome, since the answer need include only those persons of whom the city of Toledo has knowledge.
In sum, we are not convinced that the court of appeals merely substituted its judgment for that of the trial court. Instead, the appellate court reviewed the lower court's protective orders under pertinent legal principles in the proper exercise of its appellate authority.
Accordingly, based on the foregoing, the judgment of the court of appeals is hereby affirmed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.
Judgment affirmed and cause remanded.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, WRIGHT and H. BROWN, JJ., concur.