Civil No. 05-26 WJ/LFG.
December 22, 2005
MEMORANDUM OPINION AND ORDER ON PRODUCTION OF DOCUMENTS
On August 12, 2005, the Court directed that Defendants:
[P]roduce to Chief United States Magistrate Judge Lorenzo F. Garcia a copy of those portions of their personnel files and Internal Affairs files which Defendant Officers contend are privileged from disclosure, along with a Vaughn index as described below. The Court will then conduct an in camera inspection to ensure that neither privileged matters nor information which is entitled to a reasonable expectation of privacy is disclosed.
In accord with the Court's directive Defendants Donald Keith and Michael Fisher submitted the files for the Court's in camera review.
Plaintiff John D. Fogarty ("Fogarty") brings this action against the City of Albuquerque and various police officers as a result of incidents that occurred on the evening of March 20, 2003. Fogarty alleges that Police Officers Gonzales, Keith and Fisher violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution when they used excessive physical force and arrested him without probable cause. Fogarty also asserts claims of supervisory and municipal liability against the City of Albuquerque and Defendant Chief of Police Gilbert Gallegos.
In addition to the claims asserted under 42 U.S.C. § 1983, Forgarty brings various claims purportedly under the New Mexico Tort Claims Act, including assault, battery, false arrest, negligence, gross negligence and recklessness.
Negligence, gross negligence and recklessness are not torts, nor has immunity been waived under the Tort Claims Act, Section 41-4-12. Claims against governmental entities may only be brought when the Legislature specifically waives immunity.
In accord with the Court's instructions and under the provisions of the August 12, 2005 protective order [Doc. 54], the Court considered, in camera, the documents submitted for inspection. These documents generally fall within four categories: (1) documents that are relevant to the parties' claims or defenses under Fed.R.Civ.P. 26 which are not privileged, and are therefore discoverable; (2) documents that are relevant to the parties' claims or defenses, but are privileged and therefore not discoverable; (3) documents that are not relevant to the parties' claims or defenses under Rule 26, and their disclosure would not lead to the discovery of relevant, admissible evidence, and therefore are not discoverable; and, (4) documents that are arguably discoverable, but their relevancy is outweighed by the Defendant Officers' privacy rights.
In considering the discoverability of the documents in the personnel and Internal Affairs files, the Court is required to balance one party's right of discovery with the opposing party's right to be free from intrusive and burdensome discovery. To strike an appropriate balance, the Court looks at the following factors: (a) the requester's need for the information from this particular source; (b) the relevancy of the requested information to the litigation; (c) the burden of producing the sought-after materials; (d) the harm or difficulty which would be caused to the party seeking to protect the information; and, (e) whether the privacy interests of one party outweigh the opposing party's right of discovery.
The Court may deny the request altogether, limit the conditions, time, places or topics of discovery, or limit the manner in which the material will be disclosed. Koch v. Koch Indus,, 203 F.3d 1202, 1238 (10th Cir. 2000); Burka v. U.S. Department of HHS, 87 F.3d 508, 517 (D.C. Cir. 1996).
In addition to this careful balance, the Court must consider the discovery requests in light of the Civil Justice Reform Act's effect on the discovery process. 28 U.S.C. § 471 et seq. Because of abusive, unchecked litigation practices that significantly increased the costs of litigation, congested court dockets and contributed to delays in the final disposition of litigation, the CJRA was enacted. Subsequently, the Federal Rules of Civil Procedure were modified to dovetail with the CJRA. With the adoption of the revised rules, discovery has been significantly limited. Indeed, the Advisory Committee Notes to Rule 26 indicate that the rule change signals to the court that it has authority to confine discovery to the claims and defenses asserted in the pleadings, and further signals to the parties that they have no entitlement to discovery in order to develop new claims or defenses not already identified in the pleadings. Rule 26 now vests the court with broad discretion to tailor discovery narrowly and to dictate the sequence of discovery.
The Court considered the Vaughn index, the file, and the individual officer's claims of privilege, reviewed eachBates-stamped document withheld from production, and now determines as follows:
Internal Affairs File: CPC Case No. 050-03
BATES DO NOT NUMBER DESCRIPTION PRODUCE PRODUCE ANALYSISD000001- Internal Affairs X This document is relevant to the D000002 disciplinary status parties' claims or defenses as it sheet concerning deals with the subject incident. complaint by Bill It is not privileged and Sprague of excessive Plaintiff's right of access force in launching gas outweighs Defendant's right of canisters at privacy. demonstrators D000016- Internal Affairs Unit X Same as above. D000017 Supervisor Recom- mendation Form for Capt. John Gonzales D000018- Internal Affairs Unit X Same as above. D000019 Supervisor Recom- mendation Form for Capt. Michael Castro D000020- Internal Affairs Unit X Same as above. D000021 Supervisor Recom- mentation Form for Officer Brett Lampiris D000026- Internal Affairs Unit X Same as above. D000027 Supervisor Recom- mendation Form for Sgt. Clarence Davis D000039- Investigative Report X This portion of the investiga- D000042 regarding Capt. John tive report only outlines the Gonzales outlining general and procedural orders issues relating to APD which are party of the City's SOPs SOPs. It does not contain findings, conclusions, or evaluations. D000043- Investigative Report X Same as above. D000044 regarding Capt. Michael Castro out- lining issues relating to APD SOPs D000045 Investigative Report X Same as above. regarding Sgt. Clarence Davis out- lining issues relating to APD SOPs D000046 Investigative Report X Same as above. regarding Officer Brett Lampiris outlining issues relating to APD SOPs The next document which the Court reviewed includes the Conclusions and Findings of the Independent Review investigator. Defendants assert a self-critical analysis privilege for this investigative report. While federal courts recognize the self-critical or evaluation privileges, Frankenhauser v. Rizzo, 59 F.R.D. 339, 342 (E.D. Pa. 1973), the self-critical analysis privilege is not absolute. When the self-critical analysis privilege, or otherwise known as an investigative privilege, is asserted, the Court must balance the public interest and 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. InFrankenhauser, the court set out a number of factors which should be considered in applying an appropriate balancing test to determine whether the information in police investigative files should or should not be produced in a civil rights case. These factors include:
1. The extent to which disclosure will thwart governmental process 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 intra-departmental 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 discovery or from other sources; and
10. the importance of the information sought to the plaintiff's case.
The weightiest of these factors is the last. That is, the importance of the information to the plaintiff's case. Crawford v. Dominic, 469 F. Supp. 260, 263 (E.D. Pa. 1979). In the present case, there is little question that the material sought — the internal investigative reports of the incident that gave rise to this very lawsuit — is highly relevant. Identifying witnesses who have knowledge of what occurred is critical for the parties to present their claims and defenses at the time of trial.
[I]n that this is an investigation into the incident which is the basis for this lawsuit, almost by definition the file is highly relevant to this lawsuit. The fact that this investigation was made almost immediately after the incident makes it of even greater relevance. While [it is unknown] what probability of success plaintiff's suit has, it may well be that if the suit has any chance of success, the keys to it are contained in this file.Wood v. Breier, 54 F.R.D. 7, 10 (E.D. Wis. 1972).
The consideration that these materials were prepared shortly after the incident at issue, when the information was not dated and memories were still sharp, has been noted by many courts in emphasizing the importance of the material to a plaintiff's case. See Frankenhauser, at 345. (Plaintiff's need for the facts contained in the police investigative files is manifest. The police investigation was conducted promptly after the incident occurred and certainly should be comprehensive and reliable). Since information and police files often will have been developed closer in time to the subject events, when witnesses were around and their memories were fresher and when physical evidence was more accessible, in many cases it will not be likely that information of comparable quality will be available from any other source. Kelly v. City of San Jose, 114 F.R.D. 653, 667 (N.D. Cal. 1987).
Thus, in reference to the Frankenhauser factors which the Court considers in reverse order, the investigative report is highly report to Fogarty's case. The Court must then consider whether Fogarty can obtain this information through other discovery. He clearly can. The same witnesses who provided statements to the police can easily provide the same statements to Fogarty. So, too, Defendant officers are subject to depositions and they may provide their own testimony concerning what occurred. Thus, this is not a situation where the investigative report provides the sole source of information. This factor favors non-disclosure, as the same information is otherwise available to Fogarty.
The Court next considers whether Fogarty's suit is non-frivolous and brought in good faith. Fogarty is making a good-faith assertion of claimed violations of constitutional and statutorily protected rights. Nothing in the record demonstrates that this lawsuit is frivolous or is being brought for any improper purpose. A civil rights claim to vindicate ones constitutionally protected rights, especially when there is an arguable basis in fact, does not appear frivolous on its face. Therefore, this factor favors disclosure to Fogarty.
The Court must next consider whether any intra-departmental disciplinary proceedings have arisen or may arise as a result of the investigation. The purpose of the investigation was in part to determine whether officers violated general orders or standard operating procedures. Indeed, the Internal Affairs and personnel files demonstrate that violations of SOPs could result in imposition of sanctions.
Individuals have an interest in preventing disclosure of personnel matters, and personnel actions are well within the zone of privacy protected by the Constitution. Flanagan v. Munger, 890 F.2d 1557, 1570 (10th Cir. 1989) ( citing Whalen v. Roe, 429 U.S. 589, 599 n. 24, 97 S. Ct. 869, 876 n. 24 (1977)). As there are significant privacy interests that would outweigh Fogarty's right of disclosure, this factor must be viewed in favor of non-disclosure.
The next consideration is whether the investigation has been completed. There is no indication in the record that this is an ongoing investigation, and therefore it must be viewed as a completed investigation. This factor weighs in favor of disclosure, as there are no risks that disclosure of information would interfere with an ongoing process.
The next factor is significant. That is whether the information sought is factual data or evaluative summary. In this case, it consists of both. Much of the information concerns witness statements, i.e., demonstrating who, what, when and where. These factual statements are important and are discoverable. However, the evaluative portion of the report is full of opinion and conclusion, and that falls squarely within the self-critical analysis privilege. Those portions of the recommendation which constitute opinion and evaluation are privileged and the Court will not order that they be produced.
The Court must then consider whether there is any chilling effect caused by disclosure. This asserted "chilling effect" arises from an argument that there is public interest in ensuring candor in internal investigations of public officials, and the fear is that, if confidentiality is not guaranteed, citizens and police officers would be reluctant to make statements or likely fail to be completely candid in their statements, and that reluctance would impede future investigations and interfere with the proper functioning of a police department. Denver Policemen's Protective Ass'n v. Lichtenstein, 660 F.2d 432, 437 (10th Cir. 1981).
There is no evidence that the citizen portion of the investigation was made under the veil of confidentiality, nor evidence that disclosure would impair the functioning of the police department. Indeed, many courts simply do not accept the proposition that disclosure of internal investigations would chill a participant's impulse to be candid, pointing out that there are no empirical studies to support this "chilling effect" contention. Kelly v. City of San Jose, 114 F.R.D. at 664.
Concluding that disclosure of the citizen portion of this investigative report would not have a chilling effect on future investigations, the Court determines that this factor would weigh in favor of disclosure.
Having completed this balancing test, the Court now rules on the admissibility of portions of the police investigative report as follows: Tab 99Conclusion and Find- X These pages contain witness D000156- ings of Independent statements and identify potential D000159 Review Investigator witnesses. Are there-fore relevant and discoverable. D000166- There are no opinions and D000167 conclusions stated. Therefore, Fogarty's right of discovery outweighs Defendants' claimed right of privacy. D000168 Investigator's X A portion of this page contains Conclusions and in redacted witness statements. However, Findings form the last two paragraphs contain opinion and conclusion. Those last two paragraphs may be redacted. The remainder should be produced. D000169 Investigator's X These portions of the investiga- D000160 Conclusions and tive report constitute opinion D000161 Findings and conclusion. They are not D000162* factual statements of witnesses or bystanders, but, rather, are *These part of the self-critical analysis. pages, while They are privileged and need sequently not be produced correct, appear to be misnumbered, i.e., 169, 160, 161, 162 D000163 Investigator's report, X Majority of this page consists of including both state- in redacted opinions and conclusions. Is ments of fact, con- form therefore privileged under the clusions and opinions critical self-analysis privilege. However, paragraphs 3 4 of this sheet refer to statements made by unknown individuals. Because these two paragraphs purport to include factual determinations, these two paragraphs may be produced. D000164 Investigative report, X Paragraphs 1 3 purport to findings, conclusions in redacted assert statements of fact. As and opinions form these facts are relevant to Fogarty's claims, ! 3 of this document shall be produced. The remainder of the document may be withheld. D000166- Investigative report, X This portion of the report D000167 findings, conclusions consists entirely of the writer's and opinions opinions and conclusions. This is part of the self-critical analysis privilege and these portions need not be produced. D000168 Investigative report, X Portions of this page include findings, conclusions in redacted statement of fact and the and opinions form remainder includes opinion and conclusion. Paragraph 2 purports to be a statement of fact. It is relevant to Fogarty's complaint and does not constitute opinion or conclusion. Paragraph 2 may be produced. D000169 Investigative report, X Paragraph 2 purports to contain findings, conclusions in redacted factual statements made by and opinions form police officers. Remainder of the exhibit constitutes con- clusion or opinion. Paragraph 2 may be produced. Remainder is privileged. D000170- Investigative report, X These two pages constitute D000171 findings, conclusions opinion and conclusions rather and opinions than statements of fact. They are deemed privileged under the self-critical analysis privilege. D000172 Investigative report, X Same as above findings, conclusions and opinions D000173 Investigative report, X Paragraph 1 of this exhibit findings, conclusions in redacted purports to be a statement of and opinions form fact. Deleting the last sentence, paragraph 1 may be produced. Remainder of exhibit constitutes opinion and conclusion and is privileged. D000174- Investigative report, X These portions of the investiga- D000181 findings, conclusions tive report constitute opinion and opinions and conclusion. They fall within the self-critical analysis privilege and need not be produced. D000175- Investigative report, X These documents are not D000180 findings, conclusions relevant to Fogarty's claims. and opinions They constitute conclusions and opinions and fall within the self- critical analysis privilege. They need not be produced. D000181 Investigator's recom- X Not relevant to the parties' mended finding claims or defenses. The arguable relevancy is out- weighed by the officers' right of privacy.
Internal Affairs File: CPC Cases No. 057-03D000012 Letter from Jay X Not relevant to the parties' Rowland to Chief claims or defenses; any Gallegos arguable relevancy is outweighed by the officer's right of privacy. D000013 Citizen complaint by X Document is relevant in that it Dr. A. Lane Leckman identifies a complainant. The officer's right of privacy is outweighed by Fogarty's right of access. D000014 Investigative Table of X Not relevant to Fogarty's Contents claims; any arguable relevancy is outweighed by the officer's right of privacy. D000016- Supervisor recommen- X Same as above. D000017 dation Form D000018- Inter-office memo to X Not relevant to Fogarty's D000019 Lt. Tate from Capt. claims; any arguable relevancy Gonzales is outweighed by the officer's right of privacy. D000020 Correspondence from X Same as above. Deputy Chief Schultz to Officer Hubbard D000021- Supervisor Recom- X Same as above. D000022 mendation Form D000023 Investigative Synopsis X Synopsis identifies the name and contact information for various witnesses. It is relevant and disclosure may lead to the discovery of relevant, admissible evidence. D000024 Synopsis of Complaint X Synopsis of a citizen complaint and is relevant to Fogarty's claims. Disclosure may lead to the discovery of relevant, admissible evidence. D000025 Investigative report X Not relevant to Fogarty's concerning David claims; any arguable relevancy Hubbard is outweighed by the officer's right of privacy. D000028 Investigative report X Same as above. concerning Deborah Rainaldi D000040 Investigative Report X This report consists of citizen related to Officer statements. They are relevant Deborah Rainaldi; to Fogarty's claim and do not conclusions and constitute opinion or findings conclusion. They are not privileged and should be produced. D000041 Investigative Report X Paragraph one of this exhibit is related to Officer in redacted part of a factual representation. Deborah Rainaldi; form Paragraph one does not consti- conclusions and tute opinion or conclusion. findings Paragraph one may be produced. The remainder of the exhibit need not be produced. D000042 Investigative report X Not relevant. Production would relating to Officer not lead to discovery of Deborah Rainaldi relevant, admissible evidence. Any arguable discovery is outweighed by the officer's right of privacy.
Sgt. Keith's APD Internal Affairs FileD000001 APD Internal Affairs X Not relevant, nor would pro- Cross Reference Sheet duction lead to the discovery of relevant, admissible evidence. Any arguable relevancy is outweighed by the officer's right of privacy. D000002 Supervisor Recom- X Same as above. mendation Form D000003 Findings and X These documents refer to conclusions relating to personnel actions. Same as Sgt. Don Keith above. D000004 Inter-Office Memo to X Same as above. Capt. Leeper from Lt. Campbell D000005 IA Cross Reference X Same as above. Sheet D000006 Supervisor Recom- X Same as above. mendation Form D000007- Findings and Remarks X Same as above. D000008 regarding Officer Keith D000009 Inter-Office correspon- X Refers to personnel action. Not dence from Lt. relevant, nor would production Callaway to Capt. lead to the discovery of Davalos relevant, admissible evidence. Any arguable relevancy is outweighed by the officer's right of privacy. D000010 Inter-Office memo X Same as above. related to missed court appearance D000011 Document related to X Not relevant, nor would pro- missed MVD hearings duction lead to the discovery of relevant, admissible evidence. Any arguable relevancy is outweighed by the officer's right of privacy. D000012 Subpoena Logs X Same as above. D000013 APD Cross Reference X Same as above. Sheet D000014- Supervisor Recom- X Relates to personnel matters. D000015 mendation Form with Not relevant, nor would pro- remarks duction lead to the discovery of relevant, admissible evidence. Any arguable relevancy is outweighed by the officer's right of privacy. D000016 Inter-Office Corres- X Relates to personnel actions. pondence related to J. Not relevant, nor would pro- Hernandez, D. Patrick, duction lead to the discovery of R. Garcia, H. relevant, admissible evidence. Prudencio, S. Marez Any arguable relevancy is and D. Keith outweighed by the officer's right of privacy. D000017 Inter-Office Corres- X Same as above. pondence from Lt. Weiland to Acting Capt. Nix D000018 Disciplinary Status X As this complaint relates to a Sheet claimed excessive use of force, it is relevant to Fogarty's complaint and disclosure may lead to discovery of relevant, admissible evidence. D000019 Supervisor Recom- X Relate to personnel action. Not D000021 mendation Form relevant, nor would production lead to the discovery of relevant, admissible evidence. Any arguable relevancy is outweighed by the officer's right of privacy. D000022 IA memo concerning X Not relevant, nor would Officer Keith production lead to the discovery of relevant, admissible evidence. Any arguable relevancy is outweighed by the officer's right of privacy. D000023 Inter-Office X This document is an exoner- Correspondence ation of a claim of excessive use of force. Since use of force is an issue in this case, the document is relevant, and its disclosure may result in the discovery of relevant, admissible evidence. D000024- Documents relating to X Not relevant, nor would D000025 personnel conferences production of this index lead to the discovery of relevant, admissible evidence. Any arguable relevancy is outweighed by the officer's right of privacy. D000026- Documents relating to X Same as above. D000027 personnel conferences D000028 Memo relating to auto X Same as above. accident D000029- Documents relate to X Same as above. D000030 personnel action D000031- Documents relate to X Same as above D000032 use of vehicle D000033- IA Disciplinary Status X Same as above. D000035 Sheet related to use of vehicle D000036- Documents related to X Same as above. D000037 personnel action D000038 IA Disciplinary Status X Same as above. Sheet concerning auto accident D000039- Personnel matters X Same as above. D000040 related to Officer Keith D000041- Personnel matters X Same as above. D000042 related to Officer Keith D000043 Personnel Action X Same as above. Notice D000044 Inter-Office memo X Same as above. regarding personnel action D000045 Inter-Office memo X Same as above. related to appearance in Metro Court D000046 Metro Court Docket X Same as above. D000047 Overtime sheet for X Same as above. Officer Keith D000048 Memo regarding Metro X Same as above. Court hearing D000049 Inter-Office memo X Same as above. concerning Metro Court appearance
Sgt. Keith's APD Personnel FileD000006 4/95 Personnel Action X Same as above. Notice
Sgt. Keith's City Human Resources Personnel FileD000104 4/95 Personnel Action X Duplicate of previous Notice document. Same as above. D000124- Personnel Action X Same as above. D000125 related to operation of motor vehicle D000126- Personnel documents X Same as above. D000127 relating to operation of motor vehicle D000128- Personnel documents X Same as above. D000129 relating to operation of motor vehicle D000130- Personnel documents X Same as above. D000131 relating to operation of motor vehicle
Officer Fisher's APD Internal Affairs FileD000001- Employee Retention X Same as above. D000002 File Index D000003- Documents relating to X Same as above. D000035 illegal parking incident of 4-5-04 by Officer Fisher To the extent the Court has ordered documents be produced, they should be produced to Plaintiff within fifteen days. Further, defense counsel is directed to retrieve the Internal Affairs and personnel file from the undersigned magistrate judge's chambers within fifteen days.