Vol. 1, No. 2 | December 2006

Legal Summaries: Records

by Lisa Kelley
Deputy City Attorney
Charlottesville, VA
E-mail:  kelley@charlottesville.org   


In re: United States v. John Doe, 434 F. Supp. 2d 377 (E.D. Va. 05/18/06):

This opinion sets forth circumstances under which a grand jury subpoena was quashed, in favor of protecting the confidentiality of internal affairs records and the important functions served by such records.

The Virginia Beach Police Department and a federal grand jury were conducting administrative and criminal investigations, respectively, of the conduct of police officers who had allegedly engaged in criminal activity. The United States [on behalf of the grand jury] served the City with a subpoena duces tecum, seeking the production of documents containing statements made by City police officers during the Police Department’s internal affairs investigation, including compelled statements protected by Garrity v. U.S, 385 U.S. 493 (1967). The City moved to quash the subpoena pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure, asserting that the requested records are maintained within the Department as strictly confidential, and that without protection of officers’ expectations of confidentiality, the Department’s Internal Affairs office would be severely hampered in its ability to investigate alleged misconduct within the Department.

The United States argued that the importance of the grand jury’s role outweighed the confidentiality interests asserted by the City, and that the secrecy of the grand jury proceedings themselves, and the availability of a “Garrity Review Team” and subsequent Kastigar hearings (see Kastigar v. U.S., 406 U.S. 441 (1972) would adequately protect officers’ confidentiality and Fifth Amendment interests.  The Court recognized that a Police Department’s Internal Affairs office and a grand jury both serve significant law enforcement interests in the regulation of a police force, albeit in different ways. However, the Court granted the City’s motion to quash, finding the subpoena to be unreasonable “[g]iven the importance of the effective and efficient operation of the City’s internal affairs office and the relative ease with which the grand jury may avoid hampering that effectiveness and efficiency by subpoenaing witnesses directly.”

Unless this decision is appealed by the federal government and reversed, it should be more difficult for grand juries to obtain, by means of Rule 17 subpoenas, confidential statements given to law enforcement agencies during internal affairs investigations.

U.S. v. Fitzgerald, Criminal Case No. 3:05-MC-00011 (W.D. Va.):

On December 14, 2005, Judge Norman K. Moon entered an order an opinion quashing a subpoena duces tecum issued to the Charlottesville Chief of Police. In this case, a police officer had been charged with a violation of the federal Hobbs Act. Counsel for the police officer sought to compel production of internal affairs records relating to prior [administrative] investigations of his conduct, claiming that the officer was absolutely entitled to this discovery under Rule 17(c) of the Federal Rules of Criminal Procedure.

The Chief of Police moved to quash this third-party subpoena, on the grounds that it was overly broad and sought materials outside the scope of Rule  17(c).  He also asserted a privilege with respect to his internal affairs records. At the request of the City, pursuant to Pennsylvania v. Ritchie, 480 U.S. 38, 57 (1987), the Court conducted an in camera review of the requested records to preserve the confidentiality of the records while it determined whether they contained any evidence that was favorable to the defendant and material to his guilt or punishment. (The Court’s Memorandum opinion determining that in camera review should be granted was rendered in the proceedings on November 9, 2005). Finding no materials within the records to which the Defendant would be entitled, the Court granted the City’s motion to quash the subpoena.

Garrison v. Jefferson Parish Sheriff’s Office, et al. (E.D. La. 10/20/2005)(2005 U.S. Dist. LEXIS 36583):

Plaintiff Garrison initiated a civil rights lawsuit against a Sheriff’s office, alleging that law enforcement officers had subjected him to excessive force during an arrest. Garrison submitted a subpoena duces tecum to the Sheriff’s Department, seeking production of complaints and internal investigative materials concerning prior complaints of excessive force against the defendant officers. The Sheriff’s Department declined to produce the documents, and the Court agreed to conduct an in camera inspection to determine whether Garrison’s Motion to Compel should be granted.  After reviewing the documents in camera the Court found that: “Discovery of police investigative files is subject to a qualified privilege recognized both in federal common law and under Louisiana state law.”

The Court then applied the ten factors articulated in Frankenhauser v. Rizzo, 59 F.R.D. 339, 334 (E.D. Pa. 1973) and ordered a limited amount of information to be produced, relating to several “not sustained” complaints of excessive force made against one defendant officer during the same general time period as Garrison’s arrest. (The Sheriff’s Departments regulations specified that a finding of “not sustained” meant that facts gathered during an internal investigation had been insufficient to either prove or disprove allegations of misconduct). However, the Court declined to compel the production of other internal affairs records, relating to charges on which the defendant officer had been “exonerated” and a complaint had been determined “unfounded” The Court stated that “requiring production of every investigative file in which an officer was exonerated and the complaint found baseless would unduly thwart governmental processes and chill governmental self-evaluation to such an extent that production should not be required under the Coughlin/Frankenhauser factors.”  This federal court decision is also valuable reading material in that (i) it offers insight as to the categories of information that may be successfully protected even within documents otherwise required to be produced, and (ii) it illustrates the type of protective order that may be sought by counsel for a Police Department, to restrict the subsequent use of internal affairs records disclosed to the plaintiff in a civil lawsuit.

Arnold v. City of Boulder City, 2006 U.S. Dist. LEXIS 70766 (September 12, 2006): 

Plaintiff sought discovery of an internal affairs file in a §1983 lawsuit. The IA investigative file pertained to the same incident that was the subject of the civil suit. The Court ruled that statements given by the plaintiffs and police officers in the investigation must be produced, but the Court quashed that portion of the subpoena which sought the conclusions and findings of the IA investigators as to whether officers had used excessive force). The Court did not need to rule on the Police Chief’s assertion of an executive privilege with respect to his internal affairs records, but emphasized in its opinion the importance of adhering to a specific procedure that has been established for asserting such a privilege within a federal lawsuit.  On the issue of the existence and application of a federal “executive” or “deliberative” privilege, see also Kluth v. City of Converse, Texas, 2005 U.S. Dist. LEXIS 15222 (W.D. Texas, San Antonio Div., July 27, 2005)(applying the privilege in the context of the records of a board of inquiry reviewing actions of fire department employees, and quashing that portion of a subpoena that sought advisory opinions, recommendations and deliberations rather than factual statements).


Rosser v. City of Philadelphia, 2005 U.S. Dist. LEXIS 19627 (E.D. Pa., Sept. 9, 2005):

This case discusses the parameters of the federal “law enforcement privilege,” which is a qualified privilege designed to prevent the disclosure of information that would be contrary to the public interest in the effective functioning of law enforcement.  The Plaintiff in this civil lawsuit issued a subpoena for the contents of a file maintained by the City’s Police Department regarding a confidential informant. The Court determined that the City failed to meet its burden of persuasion as to the applicability of the privilege. Referencing the factors set forth in Frankenhauser v. Rizzo, 59 F.R.D. 339, 334 (E.D. Pa. 1973) the Court ordered the file to be produced.

See also In re Dept. of Homeland Security, 459 F.3d 565 (5th Cir. 2006): 

The court applied the “law enforcement privilege” to documents used by DHS in investigating and enforcing immigration laws, and referring violations for criminal prosecution.  The opinion confirms the applicability of the privilege to records of ongoing criminal investigations and discusses the confusion among federal courts as to whether the “law enforcement privilege” is something separate and distinct from the “executive” privilege often asserted in connection with records of administrative investigations.

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.